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December 29, 2005.

DAVID L. MILLER Defendant.

The opinion of the court was delivered by: DAVID TRAGER, District Judge


Petitioner Joshua Luis Reyes ("Reyes")*fn1 brings this petition pursuant to 28 U.S.C. § 2254. Reyes challenges an alleged constitutional violation stemming from his 1998 state court conviction for Manslaughter and Criminal Possession of a Weapon. Reyes is currently serving consecutive sentences of five to fifteen years and three and a half to thirteen and a half years. Reyes seeks habeas corpus relief because his right to due process was allegedly violated when the trial court denied his request for a missing witness charge relating to the prosecution's failure to call Nicky Carrasquillo, an eyewitness, to the stand. For the reasons that follow, the petition is denied. Background


  A jury convicted Reyes for the August 10, 1995 murder of Isaac Adanmes. The below account is taken primarily from Reyes' 1996 statement to the police, which formed the bulwark of the factual background introduced at trial.

  The murder occurred around 9:45 p.m. in a parking lot on the corner of Evergreen Avenue and Cornelia Street in Brooklyn. The facts underlying the murder began much earlier in the day when Adanmes allegedly threatened to kill Reyes' brother. (Tr. at 569-70.) Hoping to deter Adanmes and protect his brother, Reyes sought out Adanmes, first in the early morning and again, in the evening. Id.

  When Reyes arrived to the parking lot that evening, Adanmes was standing next to his car arguing with someone. (Tr. at 570.) In addition to Adanmes, the group assembled in the parking lot included Nicky Carrasquillo (hereinafter "Carrasquillo"), who according to Reyes, had also been present earlier in the day when Adanmes and his brother got into the argument which ended with Adanmes' alleged threat. (Tr. at 569.)

  After borrowing a gun from a bystander who had warned him that Adanmes was armed, Reyes approached Adanmes. (Tr. at 570.) The conversation did not go well. Reyes and Adanmes argued loudly, and Adanmes allegedly repeated his earlier threat against Reyes' brother. Id. Eventually, the two drew the attention of Carrasquillo, who according to Reyes, intervened to quiet the fight. Id. As Reyes disengaged from the argument to talk to Carrasquillo, he intentionally kept an eye on Adanmes. (Tr. at 571.)

  Adanmes turned away from Reyes and got into his car. Id. From his position outside the driver's side door, Reyes claimed to see Adanmes reach for a silver revolver from inside the glove compartment. Id. Reyes then reached for his own gun. Id. According to Reyes, as he moved towards his gun, Carrasquillo and another person attempted to wrestle the gun from his hands; their efforts proved unsuccessful, however, and the gun fired, striking Adanmes in the chest. Id. Adanmes exited his car, ran a short distance and collapsed to the ground after a second shot was fired in his direction. (Tr. at 471.)

  The day following the murder, Carrasquillo gave a statement to the police identifying Reyes as the sole murderer. (Tr. at 600-01.) Carrasquillo's statement mentioned neither Adanmes' gun nor a struggle for Reyes' gun.*fn2

  On May 3, 1996, the police arrested Reyes, who voluntarily admitted without the presence of counsel, that he shot Adanmes, but claimed that it was in self-defense.


  Reyes was thereafter charged by Kings County Grand Jury with two counts of Murder in the Second Degree (New York Penal Law § 125.25[1] [2]) and one count each of Manslaughter in the First Degree (New York Penal Law § 125.20[1]), Manslaughter in the Second Degree (New York Penal Law § 125.15[1]), Criminally Negligent Homicide (New York Penal Law § 125.10), Criminal Possession of a Weapon in the Second Degree (New York Penal Law former § 265.03) and Criminal Possession of a Weapon in the Third Degree (New York Penal Law § 265.02[4]).

  Reyes went to trial in 1998 before Justice Plummer Lott. During its opening statement, the defense called the jury's attention to the group of eyewitnesses present at the scene of the murder. (Tr. at 437.) Specifically, he alluded to Carrasquillo's presence and explicitly identified him as a friend of Adanmes. Id. Defense counsel further alluded to another eyewitness, Manny Maldonado, and again tied him to Adanmes. Id.

  At the conclusion of defense counsel's opening statement, the prosecutor informed the trial court that he intended to request a missing witness charge if Reyes did not call Carrasquillo as a witness. (Tr. at 447-9.) The prosecution alleged that Carrasquillo was a friend of Reyes, that one of Carrasquillo's parents lived with one of Reyes' parents, that Carrasquillo and Reyes' brother had been co-defendants in a prior narcotics case and that the Kings ...

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