The opinion of the court was delivered by: Trager, J.
In this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, pro se petitioner Elias Santana seeks relief from the concurrent sentences imposed on him as a consequence of his conviction in New York State Supreme Court, Kings County, for Manslaughter in the First Degree and Attempted Assault in the First Degree. For the reasons that follow, the petition is denied.
On November 18, 1999, at approximately 3:30 p.m., in front of 102 Essex Street in Brooklyn, two rival gang members, Christian Valdez ("Valdez") of the Netas and King Flaco ("Flaco") of the Latin Kings, had a fistfight to settle an accusation that Valdez had disrespected the Latin Kings' hand signal. A large number of Latin Kings, including petitioner and Hector Burgos ("Burgos"), were at the fight scene to support Flaco. Dissatisfied with Flaco's defeat, the crowd of Latin Kings rushed at Valdez. One attempted to stab Valdez, but was thwarted by Marcos Valle ("Valle"). Petitioner subsequently pointed a gun at Valle. Burgos took the gun from petitioner and shot Valle in the chest. Valle died from his wound.
Petitioner and Burgos were jointly tried for Murder in the Second Degree (New York Penal Law § 125.25(1)), Attempted Assault in the First Degree (New York Penal Law §§ 110; 125.10(1)) and related charges.
The prosecution presented three eyewitnesses at trial, including Valdez. Valdez testified that a few days before the shooting, he had held his hand to his mouth with his thumb and pinkie extended pretending talk on a telephone during a conversation with a friend. Flaco observed this gesture and accused Valdez of disrespecting the Latin Kings' crown, a hand signal that is formed by holding the thumb, index and pinkie fingers up and the two middle fingers down. A loud argument ensued between Flaco, Valdez and Valdez's sister Jessica, which required police intervention. Tr. at 321-22.
On the morning of November 18, 1999, Valdez was walking to school with his friend Juan Gonzalez ("Gonzalez") when Flaco, petitioner and two other Latin Kings approached. Petitioner asked Valdez why he had disrespected the Latin Kings' crown. Valdez explained that it was a misunderstanding and that he had been pretending to use a telephone. Petitioner then told Flaco to take care of the matter. After Flaco again accused Valdez of disrespecting the Latin Kings' crown, petitioner told Valdez that he would see him after school. Tr. at 322-24.
After that conversation, Valdez decided against going to school. Instead, he and Gonzalez went back to Gonzalez's home. They arrived there around 9:30 a.m., whereupon Gonzalez told his mother Ana Figueroa ("Figueroa") about the recent transpirings. Figueroa telephoned Valle, her boyfriend, and told him that they would have to pick up Jessica at the school for her protection. Tr. at 324-25. Valdez testified that he, Figueroa and Gonzalez arrived outside the school at approximately 12:30 p.m. and that Valle joined them there. Soon thereafter, petitioner, Burgos, Flaco and two other Latin Kings approached. Petitioner said: "Let's get it on," and told Valdez's group to meet them at the cross streets of Fulton Street and Grand Street. Instead of complying, Valdez's group picked up Jessica and went to Valdez's home on Essex Street. Tr. at 326-27.
After dropping off Valdez and Jessica, the others took a cab back to Gonzalez's home. A short time later, Valdez left his building to go outside. Waiting were petitioner, Burgos and two other Latin Kings. Valdez tried to convince them to put the matter aside, but they threatened to "shoot up the block" if he did not agree to fight. Tr. at 328.
Meanwhile, Figueroa, Gonzalez and Valle had arrived back at Gonzalez's home. Upon their arrival, Gonzalez testified that he telephoned Valdez's home and discovered that Valdez was outside arguing with several Latin Kings. Figueroa, Gonzalez and Valle immediately thereafter took a cab back to Essex Street. They arrived around 3:30 p.m., and saw that twenty to twenty-five Latin Kings were congregating in front of Valdez's home. Valdez was still arguing with petitioner and Burgos. Tr. 236-38.
At this point, Valdez testified that a Latin King named King Lobo approached Valle and said that Valdez would have to fight Flaco. King Lobo also told Valle that they were too old to be involved in Flaco and Valdez's fight, and that he would give Valle his word that everyone could go their separate ways after the fight's conclusion. Valle told Valdez that he needed to fight to end the situation. Valdez agreed, and the fight began in middle of the street. While Valle stood nearby, Figueroa and Gonzalez watched from the sidewalk in front of 102 Essex Street. Tr. at 330-33.
The fight lasted about five to ten minutes. Valdez knocked out Flaco. When that happened, the mob of Latin Kings rushed at Valdez. Several removed their coats, inviting Valdez to fight with them. Approximately eight others, petitioner included, pulled out knives. Saying "No, no, no, no. It's not going to stay like that," a heavy-set Latin King drew his knife and attempted to stab Valdez. Valle stepped in front of Valdez and pushed the knife-wielder's hand away. Tr. at 333-35.
Valle then told Valdez to get inside the fenced yard at 102 Essex Street. Gonzalez also called for Valle and Figueroa to run inside the yard. They were all able to get inside, but were pursued by about ten to fifteen Latin Kings. Petitioner pushed his way through the gate as Figueroa was trying to close it. He flashed his knife and told Figueroa not to lock the gate. She backed away. Valle then told Valdez to run into the house. As Valdez ran into the house to call the police, he saw that a number of Latin Kings had begun hitting and kicking Valle. Tr. at 335-38.
Figueroa and Gonzalez corroborated Valdez's testimony up to this point. Tr. at 126-48, 230-48. They also testified as to the events that transpired after Valdez ran into the house.
Figueroa and Gonzalez testified that when Figueroa tried to pull the attackers off of Valle, two Latin Kings pushed her aside and held her back. Another Latin King threatened to stab Gonzalez if he moved. Three Latin Kings then picked up Valle and held him in midair. Petitioner and Burgos stood in front of Valle at a distance of three to five feet. Petitioner pulled a black handgun from his waist and pointed it at Valle. Burgos told petitioner to shoot, saying: "Do it. Do it." Petitioner did not immediately react. A couple seconds later, Burgos grabbed the gun from petitioner and shot Valle in the chest. Petitioner, Burgos and all the other Latin Kings fled. Valle died moments later. Tr. at 148-53, 248-54.
Detective Richard Barrios ("Barrios") testified that, on November 27, 1999, Burgos stated that he was present when the shooting occurred but that "someone else had the gun and that someone else shot Marcos Valle." Tr. at 68-69. The court instructed the jury that it could consider Burgos's statement against Burgos only. Tr. at 70.
Petitioner testified on his own behalf. Petitioner generally denied the testimony given by Figueroa, Gonzalez and Valdez. Petitioner stated that he hung out with the Latin Kings only sparingly, and that the crown symbol was not as important to him as it was to other Latin Kings. Tr. at 430-32.
Petitioner stated that he remembered seeing Figueroa, Gonzalez, Valdez, Valle and Jessica outside the school around 11:30 a.m. However, according to his testimony, it was the Valdez group that had a problem with Flaco, not the other way around. Petitioner testified that Valdez's group intended to fight Flaco at Fulton Street. Petitioner did not want to get involved, so he went to get some pizza. Upon arriving at his home on Essex Street, petitioner stated that there were twenty Latin Kings hanging out on the block. Petitioner asked what was ...