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Williams v. Phillips

May 23, 2006

TERRELL WILLIAMS, PETITIONER,
v.
WILLIAM PHILLIPS, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

INTRODUCTION

Petitioner, Terrell Williams ("Williams"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction 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(c).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Robert Holmes ("Holmes" or "the victim") was fatally shot by several men, execution-style, four times on the night of June 10, 1997. At the time he was shot, he had been standing in front of a convenience store on the corner of Portland Avenue and Aebersold Street in the City of Rochester. Various witnesses, including the other perpetrators, gave statements to the police linking Williams to the shooting, and Williams was arrested and charged with second degree (intentional) murder. He gave a statement to the police admitting that he had been involved in the shooting, but denying that he was the trigger-man.

Williams was tried before a jury in New York State Supreme Court (Monroe County) (Cornelius, J.). The prosecution introduced into evidence Williams's written, signed statement to the police in which he claimed that a drug dealer had hired him and several of his friends ("Calvin", "Larry", and "LaSharm") to shoot someone known as "Raw Dog" (Holmes). Although the drug dealer only wanted Raw Dog shot in the legs, that was not how Williams and his group operated; according to Williams, they only shot to kill. Williams claimed that Larry shot the victim four to five times at point blank range with a 9-mm pistol. Williams stated that LaSharm had a .45-caliber Glock pistol and that he also shot Raw Dog "several times." Williams denied that he was carrying a gun that night prior to the shooting. Williams told the police that the was only the "gun runner" whose job it was to "take the gun and get rid of it after it was done." Williams said that everyone called him "the runner" because he was "quick on [his] feet."

After Raw Dog was shot, Williams and the other perpetrators ran over to Williams's mother's house at 87 Miller Street. Once they arrived, a man Williams knew named Ronald Loving ("Loving") handed the keys to a black truck to a person whom Williams knew as "Panama." Williams said that Loving told "Panama" (i.e., Raul Morrell) to drive them around and drop them off somewhere. Later that night, Williams went over to the home of Carol Glenn ("Glenn") house, the girlfriend of his brother. Williams related that he changed out of his clothes and Glenn gave him a pair of green Nautica-brand shorts to wear. Williams told the police that he was "pissed" that he never received the $350 or $400 he was supposed to have been paid for his part in the murder.

Glenn identified Williams's picture in a photographic array and testified at trial that she had been at 87 Miller Street at the time of the shooting. She heard gunshots and shortly thereafter, three man ran up to the house. Glenn recalled that Williams was wearing all black and was holding a gun. T.386-88.*fn1 Glenn testified that she heard Williams say something to the effect of, "[S]omebody started reaching for they [sic] gun and so he [Williams] reached for his and he shot." T.388. Glenn said that later that night, Williams came over to her apartment and changed his clothes. T.391. A couple of days later, Glenn saw Williams, and he threatened to harm her children if she did not stop talking to the police. T.394 ("It [was] like if I keep running my mouth to the cops, I be [sic] less of one child.").

Loving, who was familiar with Williams, also identified William's picture in a photographic array. Loving told the police that shortly after the murder, Williams asked him to provide a truck to use in order to flee the area. Morell, who confirmed that his nickname was "Panama," had known Williams and his mother for about six years prior to the incident. He identified Williams after being shown a photographic array. At trial, Morell testified that he heard gunshots shortly after midnight coming from the direction of the store on Portland and Aebersold. He soon saw Williams and several other men by the driveway at the side of 87 Miller Street. T.342. Morell said Williams, whom he knew as "Pep," and another man were holding guns. T.344. Morrell recalled that Williams was wearing a black "hoody." T.361.

Robert Tisdale ("Tisdale") testified that he had been inside the store on the corner of Portland Avenue and Aebersold Street shortly before midnight on June 10, 1997. Inside the store, he had seen two men arguing about money. One man, who was wearing a black hooded jacket, said that he needed the money "that night" from the other man, whom Tisdale identified as the victim. Tisdale could not identify the man who was demanding money because the hooded jacket obscured his face. Tisdale then left and headed home; shortly thereafter, he heard several gunshots coming from the vicinity of the store. Tisdale saw three men run past his house; one man was "laughing about [how] he shot him." T.329-38. Kassem Saleh ("Saleh") testified that he heard five shots and saw three people and the victim at the crime scene. He saw one person with a gun in his hand doing the shooting.

The medical examiner testified that the victim had sustained four gunshot wounds caused by bullets from two weapons of different calibers. T.558-78. Eight shell casings were recovered at the crime scene in front of the store, and a total of eight bullets were recovered from the victim, the doorway of the store, and at the left side of the store.

The defense called one witness who testified that there was only one shooter, and that he shot twice. T.641-62. Williams did not testify at trial.

The jury returned a verdict convicting Williams of second degree murder as charged in the indictment. He was sentenced to an indeterminate term of imprisonment of twenty-five years to life.

The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed his conviction on May 2, 2001. The New York Court of Appeals denied leave to appeal on August 14, 2001.

Williams filed his habeas petition on October 17, 2002. See Docket #1. On January 24, 2003, after respondent had answered the petition, Williams filed a motion to have his petition held in abeyance so that he might return to state court and exhaust claims regarding the trial court's alleged denial of a Wade hearing and a Rodriguez hearing to challenge the pre-trial identification procedures. The Court (Foschio, M.J.) provisionally granted the stay on the condition that Williams file an amended petition setting forth his proposed claims. On March 30, 2004, Williams filed an amended petition, see Docket #16, and the stay was granted, nunc pro tunc. Respondent filed a supplemental response to Williams's amended petition. See Docket #19. Williams submitted a traverse in reply to respondent's supplemental pleadings. See Docket #23.

The case subsequently was transferred to the undersigned. See Docket #26. It appears that the matter is now fully briefed and ready for decision. For the reasons set forth below, the petition is denied.

DISCUSSION

Standard of Review

To prevail under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).

Analysis of Claims Presented in the Petition

1. Failure to Hold Rodriguez and ...


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