The opinion of the court was delivered by: Kimba M. Wood, Usdj
Petitioner Wayne Gardine ("Petitioner") is currently serving a term of 18 1/2 years to life after a jury convicted him of Murder in the Second Degree and Criminal Possession of a Weapon in the Second and Third Degrees. He has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing: (1) that he was denied a fair trial; (2) that his Sixth Amendment right to confront witnesses was violated; (3) that the People violated his constitutional rights by withholding a police radio communication in violation of Brady v. Maryland, 373 U.S. 83 (1963); and (4) that he received ineffective assistance of counsel.
Magistrate Judge Eaton issued a Report and Recommendation ("Report") recommending that the Court deny the habeas petition. Petitioner timely filed objections to the Report. Petitioner also requested that the Court conduct an evidentiary hearing on what he contends were errors at trial. For the reasons stated below, both the petition for a writ of habeas corpus and the request for an evidentiary hearing are denied.
Near midnight on Friday, September, 2, 1994, Niki-a Santos ("Santos") stood in front of 180 Edgecombe Avenue, talking with friends and waiting for someone to change a flat tire on his car. (Report 3.) Thirteen-year-old Nicholas Veal ("Veal") soon approached and saw Robert David Mickens ("Mickens") in the distance. (Report 3.) Veal and Santos decided to greet Mickens; as they walked toward him, Mickens crossed the street. Another individual -- later identified by Santos as Petitioner -- pursued Mickens as he crossed. (Report 3.) Santos and Veal watched as Petitioner and Mickens began to fight in front of 210 Edgecombe Avenue. (Report 3.) The fight quickly escalated, with Petitioner ultimately firing a number of bullets at Mickens. Eleven bullets struck Mickens -- first fatally in the head, then in the neck, chest, shoulder, buttocks, and hand. Petitioner fled after the shooting. (Resp't Br. 9.)
B. The Witnesses and Testimony
Police arrived at the scene within minutes and began to question witnesses. (Report 4.) Detective Carlton Berkley ("Berkley") testified that he spoke with Veal and Santos for five to ten minutes at the scene before bringing them to the police station for questioning. (Tr. Berkley: 297-99, 36.) During those interviews, Santos told Berkley that he recalled hearing someone speak in a "Jamaican accent" immediately before the shooting. (Tr. Berkley: 320.) He stated that he then saw an individual (whom he later identified as Petitioner) hit Mickens with his shoulder. (Tr. Berkley: 320.) At this point, Santos did not state precisely how far he was from the shooter. (Tr. Berkley: 321.) At trial, however, Santos testified that he was standing "close" to a drug-treatment facility. (Tr. Santos: 60.) When pressed, Santos stated that he had stood about twenty feet from the shooter, which would have placed him in front of 204 Edgecombe Avenue. (Tr. Santos: 55; Report 3.)
Michael Levien, ("Levien") a private investigator retained by the defense, testified that seven buildings stood between 180 Edgecombe Avenue (where Santos initially spoke with his friends during the tire repair) and 204 Edgecombe Avenue (Santos's approximate location when the shooting occurred). (Tr. Levien: 380.) Levien further stated that each building was "approximately 17 feet" wide and that the distance between the "'northern edge of building number 180' and 'the southern edge of 208' was about 198 feet." (Report 3.)
As for the lighting, Santos testified at trial that although it was dark, he was able to see Petitioner's face clearly because lights from the drug-treatment center near the shooting illuminated the area. (Tr. Santos: 61.) Onaje Mu-Id ("Mu-Id"), one of the treatment center's employees, testified that the lights from the treatment center were not working that evening. (Def. Br. 6.) On cross-examination, however, Mu-Id revealed that he was not working when the shooting occurred, but "determined from police photographs that the timer must have malfunctioned at approximately 7:00 p.m." (Def. Br. 6 n.4.)
Santos testified that he knew Petitioner before the shooting because he had purchased marijuana from Petitioner three or four times. (Tr. Santos: 69.) During those transactions, Santos said that he heard Petitioner speak with a "Caribbean accent." (Tr. Santos: 70.) Santos also testified that Petitioner was "slim" and "brown skinned" but "not dark." (Tr. Santos: 72-73.) He further testified that he recalled seeing Petitioner early in the afternoon on the day of the murder and that Petitioner was dressed in the same clothes as the shooter. (Tr. Santos: 72-75.)
When asked at trial if he knew Petitioner's height, Santos (who stands 6'3") stated that the individual came almost up to his nose. (Tr. Santos: 72.) Santos had provided the same description of the shooter on the night of the shooting. (Tr. Santos: 168.) Based on that description, Detective Berkley noted that the shooter was "about 6 feet"; Santos signed a statement including that information. (Tr. Santos: 169.) Petitioner is in fact approximately 5'8" tall. (Tr. Berkley: 345.)
Veal did not testify at Petitioner's trial. (Tr. Berkley 297-98.) Both Berkley and the District Attorney's office attempted to speak with Veal after the initial interviews. Veal's mother, however, refused to allow officials to speak with her minor son. (Tr. 417.) Moreover, Veal ignored a subpoena that prosecutors delivered to his home. (Tr. 417.) In light of these failed attempts to reach Veal, the People argued that he was not within their control.
C. The Missing Witness Charge Denial
Petitioner was tried in New York County Supreme Court. At the end of trial, Petitioner requested that the judge give the jury a missing witness charge with respect to Veal and two other witnesses known only as "Margaret" and "Venus." (Tr. 416.) Justice Nicholas Figueroa ("Justice Figueroa") declined, noting that the People were unable to determine the identities of ...