Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lewis v. Bennett

June 20, 2006


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


I. Introduction

Petitioner, Nelson Lewis ("Lewis"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his October 29, 1999 conviction following a jury trial in New York State Supreme Court (Monroe County) on charges of second degree murder, first degree robbery, and second degree robbery. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).

II. Factual Background and Procedural History

During the afternoon of September 2, 1998, Carl Viele ("Viele") was invited to the apartment of his friend, Christopher DiVita ("DiVita"), for the purpose of using cocaine. When Viele arrived several minutes later, DiVita was not in the apartment, but the door had been left open so Viele went inside. Viele looked out the window into the parking lot of the Golden Fox restaurant, which occupied the first floor of DiVita's apartment building. He saw DiVita leaning into a gold-colored Audi or Jetta and talking to someone inside the car. Viele called down to DiVita, and DiVita signaled that he would be right up. DiVita and the man in the car, whom Viele later identified as Lewis, both came upstairs. See T.566-71.*fn1 DiVita then ordered an "eight-ball" of cocaine from Lewis, which Lewis priced at $125. Lewis promised to return in about ten minutes with the drugs, and DiVita and Viele waited in the apartment. T.570-72.

About ten minutes later, the doorbell rang. Viele looked out the window and saw two men whom he did not know waiting downstairs; he also saw Lewis, sitting in the same gold-colored car, "motioning like they had the stuff; let them up." Viele did so and the men, whom he identified at trial as co-defendants Wayland Williams ("Williams") and James Vaughn ("Vaughn"), came in. Viele described the next few moments as follows:

We were sitting in silence for like a whole minute, and then Chris was like, "Well, what's up?" And I believe Mr. Williams said, "Well, do you have the money?" And Chris said, "Yeah," and took out 125 and placed it on the table. Sat there in silence for, I don't know, few seconds and then Chris was like, "Do you have the stuff?" And then I believe he [Williams] said, "Well, it's not enough money," and then Chris said, "What do you mean?" And at that time, Mr. Vaughn pulled out a gun and put it to my head and Mr. Williams pulled out a gun and put it to Chris's head.

Vaughn ordered Viele not to move. DiVita, however, did move. He attempted to stand up as Williams grabbed the money; Williams struck him in the forehead with the gun. DiVita started to shout to his next-door neighbor, Patricia Hannon ("Hannon"), for help, and to bang on the wall separating her apartment from his. A struggle ensued in which Williams, who was considerably smaller than DiVita, repeatedly hit DiVita with the gun in order to prevent DiVita from leaving the apartment. T.579-82.

Vaughn, who had been holding Viele at gunpoint in the kitchen, responded to the commotion in the hallway between Williams and DiVita. Viele could not see the other men, but he heard more blows being struck. Someone shouted, "Just shoot him!" A few seconds later, Viele heard a shot. T.583-84. Hannon, DiVita's next-door neighbor, testified that at about 2:15 p.m. that afternoon she heard banging on the wall coming from DiVita's apartment and a voice which she recognized as DiVita's shouting, "Patty, Patty, please help me." Just as she was starting to call 911, she heard what sounded like a gunshot.

Right after the gunshot, Viele heard one of the men say, "Well, what about the other one?" However, neither Vaughn nor Williams came back into the kitchen. When Viele ventured out, he saw blood on the walls of the hallway where DiVita, covered in blood, was lying on back with his eyes closed. Viele called out to him but received no response. DiVita's body twitched for a few moments and then became still. Viele fled, afraid that Williams and Vaughn might return. T.585-87. Instead, Williams and Vaughn drove away in the gold-colored vehicle that Viele had seen Lewis using to drop them off at DiVita's apartment. Shortly after 2:15 p.m. George Weiner ("Weiner"), a technician for a utility company, observed a man wearing a camouflage-patterned, hooded jacket, running along Culver Road near the intersection of Parsells Avenue. Moments later, as Weiner drove his van into a parking lot a block away, he was cut off by a gold-colored sedan. The man in the camouflage jacket ran in front of the van and shouted to the driver of the gold-colored sedan, "Hurry up and open the door," and then got into the back seat. Weiner, suspicious of the man's inappropriate apparel (it was sunny and 80 degrees that day) and haste, noted the license number of the gold-colored sedan. Upon hearing sirens a few minutes later, Weiner reported the incident and the plate number to the police.


The license plate number was traced to a gold-colored 1986 Audi registered to Shanika Henry ("Henry"), whom police records indicated was Lewis's girlfriend. T.841-45; 1230-31. Lewis was spotted a few days later in a driveway on the street where Henry lived; upon seeing the police, Lewis fled but was apprehended after a brief chase. The Audi, which had been stripped of its license plate and registration certificate, was found in Henry's backyard. T.1142-46, 1236-40.

Lewis agreed to waive his rights and speak to police about the DiVita incident. Initially, Lewis denied any involvement in the robbery and murder. After being informed that there were three witnesses, including "the white guy that was in the apartment," Lewis admitted that he had driven his girlfriend's Audi to DiVita's apartment where, in the presence of Viele, he agreed to supply DiVita with an eight-ball of cocaine for $115.*fn2 A "dude" known as "Shorty" had agreed to front the cocaine. T.1261-63, 1329-32.

Lewis claimed that he was encouraged to revise his plans by his cousin, Williams, and Williams's friend, a person Lewis called, "G." (Vaughn later acknowledged that "everyone" called him by the nickname, "G.") When Vaughn informed Lewis and Williams that he had heard that DiVita had just come into about $3,000, Williams proposed that rather than "serve" DiVita the cocaine, they "just go back and rob him of the money that he had." Lewis agreed to drive Williams and Vaughn to DiVita's apartment. The plan was to "whup [sic] his ass" and "make sure that Chris spent his money on [them]" rather than on Shorty's cocaine. T.1263-65, 1331-34.

Lewis related that the robbery did not go as planned. Williams returned to the gold- colored Audi in which Lewis was waiting about four minutes after Williams and Vaughn had gone inside. Consistent with Weiner's observations, Vaughn came out of the building alone, several minutes later, and got into the back seat. When Lewis noticed that Vaughn had blood on his face he asked what had happened. According to Lewis, Vaughn said that he "had to pop the guy" because he put up a fight and refused to let Vaughn go. Vaughn later showed Lewis a .38-caliber revolver with one chamber empty. Lewis maintained that up until that point, he "did not know that these guys had guns." Lewis described his cousin Williams as a "good fighter" who did not need a gun to defend himself. Lewis also denied sharing in the proceeds of the robbery.

T.1265-66, 1333-34.

The trial court instructed the jury as to the elements of felony murder under New York Penal Law § 125.25(3), including the affirmative defense under that section. The court also instructed the jury on robbery, as charged in the remaining counts, as well as the principles of accessorial liability under New York Penal Law § 20.00. The jury returned a verdict finding Lewis guilty of all counts in the indictment. Lewis was sentenced to concurrent sentences, the longest of which was seventeen and one-half years to life. The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed his conviction on direct appeal.The New York Court of Appeals denied leave to appeal. This habeas petition followed. For the reasons set forth below, relief is denied and the petition is dismissed.

III. Standard of Review

To prevail under 28 U.S.C. § 2254, as amended in 1996 by the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), 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).

IV. Discussion

A. Merits of the Petition

1. Batson Claim

Lewis charges the prosecutor exercised two of his peremptory challenges in a racially discriminatory manner. Lewis, who is African-American, alleges that the prosecutor used two of its peremptory challenges against two of the four African-American jurors on the panel, and argues that it did so because of their race, in violation of Batson v. Kentucky, 476 U.S. 79, (1986). On direct appeal, the state court found that the trial court "properly rejected defendant's Batson claim with respect to the prosecutor's peremptory challenges to two potential jurors," concluding that the "prosecutor provided ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.