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TIRADO v. SENKOWSKI

May 3, 2005.

MIGUEL TIRADO, Petitioner,
v.
DANIEL A. SENKOWSKI, Superintendent, Respondent.



The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge

DECISION AND ORDER

INTRODUCTION

Miguel Tirado ("Tirado") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on one count of second degree murder. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).

  FACTUAL BACKGROUND AND PROCEDURAL HISTORY

  Michael Nelson ("Nelson" or "the victim") was fatally shot in the head at about 1:00 a.m. on July 29, 1993, while he was standing outside a mini-mart at the corner of Seventh and Bay Streets in the City of Rochester. The two bullets recovered from Nelson's body were found to have come from the same nine-millimeter gun; however, the murder weapon never was recovered. At the time of the shooting, no arrests were made.

  Months after the murder, Robert Black ("Black"), a convicted drug dealer serving a six to twelve-year term of imprisonment, informed the City of Rochester Police Department that Tirado had killed Nelson at the behest of Roberto Concepcion ("Concepcion"). Since Black already was serving a prison term, the prosecutor informed him that there was not much that could be done in exchange for his cooperation. Black was told that, if he cooperated, the prosecutor would inform the parole board of this fact. The prosecutor also promised Black that if Black filed a collateral application to have his sentence modified, the motion court would be informed of the cooperation he provided. Finally, Black and his sister, Ranisha Mackey ("Mackey"), who also testified for the prosecution, received $800 from the $5,000-award posted by Nelson's father through "CrimeStoppers." Defense counsel was made aware of these facts during the pre-trial phase of the proceeding.

  The defendants' severance motions were denied, and Concepion and Tirado were tried jointly in Monroe County Court (Connell, J.). Their first trial ended in a mistrial as a result of juror misconduct. Their second trial commenced on February 7, 1995, before Judge Connell.

  At trial, Black testified for the prosecution that he had been driving around with "Seville" (Concepcion), "Base" (Tirado), "Mike" (Miguel Rivera) and "Light" (Rodney Taylor)*fn1 on the night of the shooting. They saw a black male wearing a white t-shirt and red pants (i.e., Nelson) standing in front of the mini-mart at Bay and Seventh Streets. Black testified that Concepcion commented, "There go [sic] the guy that is going to kill him [sic]." Black's subsequent testimony clarified that Concepcion meant that he believed Nelson was going to kill him. T.764-66.*fn2 Concepcion, Tirado and the others returned to Concepcion's house, where they found Mackey and several of their acquaintances.

  Black's sister, Ranisha Mackey, testified for the prosecution that she was at Concepcion's house on the night of July 29, 1993, along with "Base" (i.e., Tirado); her brother; "Mike"; and "Light". Mackey testified that Concepcion gave her money to go to the mini-mart to buy a bottle of soda and see who was standing on the corner. When Mackey returned, she told Concepion that she saw a "couple of boys" and described their clothing as "red and black"; at trial, however, she could not recall who was wearing what. Shortly thereafter, Tirado left the house. Mackey testified that Tirado was wearing all black that night: a black hooded sweatshirt, black pants, black boots, and a black coat.

  Moments later, Mackey heard "ten or eleven" gunshots coming from the direction of the mini-mart. Soon after that, Tirado returned to Concepion's house carrying a black gun. He went down to the basement and changed his clothes. According to Mackey, Tirado informed Concepion that "he got him." Concepion allegedly told Tirado, "Good job" and commented, "It's one less nigger we got to worry about." T.383.

  Black similarly testified that, after Mackey returned from the store and informed Concepcion that a man in a white t-shirt and red pants was standing in front of the mini-mart, Tirado left the house wearing black clothes. Tirado also was carrying a black automatic gun which Black had seen him load. According to Black, as Tirado was leaving, Concepcion told Tirado to "[g]et him all in the head," and commented, "Better him than me." T.773. When Tirado returned, Concepcion asked him if he "got him." Black heard Tirado reply affirmatively and saw him change his clothes and put the gun away. Everyone continued watching television.

  Mackey testified that she knew her brother was attempting to obtain a reduction in his sentence by cooperating with the police regarding the Nelson shooting. Mackey, who was a very reluctant witness, stated that she was upset with her brother for getting her involved in the Tirado/Concepion trial. Defense counsel attempted to impeach her credibility using some of the transcripts of the recorded phone conversations among Mackey, her brother, and the police officers who facilitated Mackey's and Black's testimony. However, Mackey consistently denied that her brother told her what to say and maintained that she did not tailor her testimony in order to corroborate his story.

  Three eyewitnesses to the murder testified at trial. Vanessa Peterson ("Peterson") testified for the prosecution that she saw Nelson standing on the corner of Bay and Seventh Streets just prior to the shooting. Peterson saw a man dressed in dark clothes walk up to the victim and begin shooting at him with a dark-colored gun. Peterson was unable to identify the shooter, but recalled that he fired the gun at the victim multiple times and then ran back the way he came. See T.570-77. Peterson thought that the shooter was wearing some type of face mask.

  Marcia Bernard ("Bernard"), Nelson's cousin, testified for the defense that she lived right across the street from the mini-mart and had been talking to Nelson, from her second-story window prior to the shooting. After they were done talking, Bernard saw Nelson, who was dressed in a white shirt and red pants, talking to a man wearing a baseball cap. Bernard described the man's race as "mixed," stating that he looked like "black and white." Bernard overheard Nelson say, "What you going [sic] to do, shoot me?" At that point, the man in the baseball cap pulled out a gun and shot Nelson.

  Emma Glen ("Glen") testified for the defense that on the night of July 29, 1993, she heard "a lot" of "rapid" shots fired at about 1 a.m. Glen saw two men (the shooter and someone else) standing over the victim who was lying on the ground. According to Glen, the shooter was black and was wearing "dark blue" clothing and a baseball cap; the other man was black also and had on a red sweatsuit. Thinking that it was her son who had been shot, Glen started screaming at the two men, who ran down the street and out of view. When Glen originally spoke to the police on the night of the incident, she stated that the shooter had been wearing a blue and white jacket and a baseball cap.

  During the last week of trial, an issue arose with respect to another potential defense eyewitness, Sandra Barron ("Barron"), who happened to be Glen's daughter. Barron unexpectedly was rushed to the hospital to receive treatment for blood clots and was unable to appear as scheduled. The trial court granted two adjournments, but the witness was never able to appear in court to testify. The court denied any further adjournments, noting that after almost a week of defense counsel being aware that Barron had health problems, the court had received no verification from the hospital or her doctor as to her condition or her expected date of availability. The judge also noted that Barron apparently had indicated an unwillingness to speak to anyone other than the defense. Finally, the court determined that, after hearing an offer of proof from defense counsel, Barron's testimony would be cumulative to that provided by Glen.

  A significant Brady*fn3 issue developed prior Black's cross-examination when defense counsel brought to the court's attention that he had heard that Black was a prosecution witness in another, unrelated homicide case handled by a different district attorney. Concerned about a possible Brady violation, Judge Connell directed the assistant district attorney, Thomas Brilbeck ("ADA Brilbeck") to put on the record what Black was doing for whom. ADA Brilbeck admitted that he learned in late 1993 or early 1994 that Black was testifying for the People in another case, but he did not inform the defense. The court adjourned the trial and ordered ADA Brilbeck to provide defense counsel with all of the information he had concerning Black's cooperation in the other case and the consideration which he expected to receive.

  Assistant District Attorney Vincent Rizzo ("ADA Rizzo"), the prosecutor in the other murder case in which Black was going to testify for the People, appeared before Judge Connell and informed the court that the only thing he promised Black in August 1994 was that he would inform the motion court of Black's cooperation in the event that Black made an application to have his sentence modified from six to twelve years to four and one-half to nine years. ADA Rizzo noted that there was not much in the way of inducements that could be offered since Black was a sentenced prisoner. ADA Rizzo testified that Black expressed an interest in obtaining a stay of his sentence so that he could be released while his appeal was pending. ADA Rizzo informed the court that, since he did not believe that this was a good idea, he was noncommittal regarding this request and told Black that it was something his defense counsel should explore.

  At the court's request, ADA Rizzo turned over his entire trial file in the other court for an in camera inspection. After reviewing the file, the court provided any documents that possibly could be considered Brady material to the defense. However, the court denied defense counsels' motions for a lengthy continuance, noting that the information provided by the People concerning the other murder trial did not contain any new information with respect to additional promises made to Black in return for his cooperation. The court did order Mackey to be returned from New York City should the defense attorneys wish to cross-examine her regarding any potential bias, that is, whether she testified in order to obtain some kind of benefit for her brother. Although Mackey was made available as a witness, neither defense counsel chose to question her further. Black was thoroughly cross-examined by defense counsel concerning his conversations with the district attorney's office and the consideration he received for his cooperation. Black maintained that he "ain't got no [sic] deal going" and that he had been given no promises of a reduced sentence. According to Black, all he got in return for his cooperation was that the police promised to appear at his parole board hearing. Black acknowledged that some money was paid into the jail commissary and that he had discussed receiving some of the reward money from CrimeStoppers, but he insisted that his motivation was not the money.

  Finally, defense counsel called ADA Brilbeck, the prosecutor, and questioned him about the circumstances of Black's cooperation. ADA Brilbeck's testimony, in sum and substance, confirmed what he and ADA Rizzo earlier had told the court ...


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