The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner Damecha Harris ("Harris" or "petitioner"), proceeding pro se, has filed a petition for a writ of habeas corpus challenging his conviction on November 23, 1998, in Erie County Supreme Court. The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The events giving rise to the conviction here at issue occurred on January 20, 1997, while Harris was incarcerated in the Wende Correctional Facility, serving a sentence of fifteen years to life following a conviction on charges of second degree robbery. Harris, along with fellow inmate Patrick Smith ("Smith"), instigated an assault on Correction Officer Stephen Gambino ("Gambino" or "the victim"), while Gambino was carrying out an order to frisk Harris' prison cell at the facility. Harris originally was charged as both a principal and an accomplice for his role in the assault.
According to Gambino, when he arrived at 9:30 a.m. to do the cell frisk, Harris was asleep. Upon being informed of the cell frisk, Harris stated that "no motherfucking officer's telling me what to do and before any officer tells me what to do, I'll kill you." T.53.*fn1 Gambino ignored Harris' display of temper and ordered him to get dressed, whereupon Harris again threatened to kill Gambino if he (Gambino) tried to search Harris' cell. T.55. Gambino told Harris that he had to leave the cell but that he could observe the cell frisk, provided that he calmed down and remained calm. T.56.
Harris exited the cell as ordered and took a position against the opposite wall so that he could watch Gambino conduct the cell frisk, e.g., T.167-69, which revealed that Harris had several pairs of pants over the limit, six pack-up bags, and a broken mirror with a jagged edge--all items of contraband. T.58. While Gambino was searching the cell, Harris ranted that Gambino would be a "motherfucking dead man" if he took Harris' property. T.58. Gambino ordered petitioner, who was still yelling irately, to go to the shower room and lock himself in so that Gambino could exit the cell. Petitioner refused. Correction Officer Doktor ("Doktor") responded to Gambino's call for assistance, but they were unable to force Harris to lock himself into the shower room. T.62, 63. At this point, the victim recalled that he told Doktor to summon Correction Officer Frederick Hogg ("Hogg").
Hogg came to the cell block area, and stood in Harris' cell door opening trying to talk Harris into locking himself into the shower. T.65, 66; see also T.173-74. This effort was unsuccessful, and Doktor recalled that Harris demanded to speak with a sergeant. T.174. Doktor went to his desk, called for a sergeant and, as he was returning to the cell block, saw Harris entering his cell. What occurred next can only be described as a melee.
Gambino recalled that while he as still inside the cell, petitioner rushed into the cell and charged Hogg, knocking Hogg aside. Then, Harris began struggling with Gambino. Doktor testified on cross-examination that he did not see Hogg in the cell doorway when Harris entered and did not see Harris knock Hogg out of the way. T.186-88. Hogg testified that as he was approaching the cell block in response to Doktor's call for assistance, he saw petitioner standing outside the cell beside the radiator arguing with Gambino, who was inside the cell. T.201. Although Hogg could hear that they were yelling at each other, he could not hear what was being said. He did observe Harris pounding his fist into his hands in what Hogg perceived to be a threatening manner. T.203. Hogg testified that as he approached, he saw petitioner push Gambino into the cell. Hogg was about to enter the cell when he observed inmate Smith coming toward him. Hogg was grabbed by another unidentified inmate, giving Smith the opportunity to enter the petitioner's cell. T.204.
Gambino testified that when petitioner entered the cell, he grabbed Gambino in his upper body area, and a struggle ensued. T.66. Petitioner, who apparently was restrained to some extent by Gambino, eventually managed to free one of his arms and punched Gambino several times in the face, head, neck and shoulder area. T.66-67. Gambino testified that at some point, petitioner fell on top of his bunk, and Gambino fell on top of him. Meanwhile, Gambino recalled, Smith was hitting Gambino in the back of the head and the neck area. T.68. By the time Hogg arrived, he observed Gambino on the bed wrestling with petitioner; Smith was on top of Gambino moving his clenched fist "in an up and down motion" toward the victim's head area. T.206.
Correction Officer William Sandor ("Sandor") then arrived at the cell in response to the level 2 alarm sounded by Doktor. Sandor saw Smith run into the cell and begin hitting Gambino with a closed fist in the back of the head. T.245. Gambino was on top of petitioner who was face-up on the bunk. T.245, 248. Sandor entered the cell and removed co-defendant Smith. When Correction Officers McGough and Higley arrived to provide further assistance, McGough recalled petitioner and the victim were wrestling inside petitioner's cell. McGough assisted Sandor in restraining petitioner and also assisted in removing him from the scene. T.70, 72-73, 157-59.
With regard to the injuries suffered by Gambino during the assault, Sandor and Doktor recalled that when Gambino came out of the cell, he "was hurting." After the altercation Gambino's face neck area appeared red and he complained of neck pain. See T.181, 231-32, 249, 257.
Dr. Federick McAdam testified that he had first diagnosed Gambino with cervical disk pain on January 22, 1996. T.280-81. Gambino underwent pain control therapy in 1996; this culminated in the administration of two epidural steroid injections in April and May of 1996 which reportedly improved his condition. T.282. When McAdam saw Gambino in September 1996, Gambino's range of motion in his neck was limited by fifty percent. T.283-84.
McAdam next saw Gambino on January 28, 1997, about a week after the altercation with petitioner. At that time, Dr. McAdam determined that Gambino had a seventy-five-percent limitation in his neck range of motion and diagnosed him as being temporarily totally disabled. T.286. Dr. McAdam testified that prior to the incident, Gambino always had been able to work, notwithstanding his neck condition. Dr. McAdam opined that something happened between September 1996 and January 1997 which caused further injury to the victim's neck. T.289. Dr. McAdam administered another epidural steroid injection on February 8, 1997, and kept him out of work until April 1, 1997. T.285, 288. Dr. McAdam indicated that ...