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Mazique v. Ercole

July 23, 2008


The opinion of the court was delivered by: Nicholas G. Garaufis, United States District Judge


Petitioner Shawn Mazique ("Mazique" or "Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He is currently incarcerated in Green Haven Correctional Facility and is serving a sentence of twenty-five years to life. In his Petition, filed on April 5, 2006, Mazique challenges the constitutionality of the judgment of conviction for Murder in the Second Degree (N.Y. Penal Law § 125.5(1)), two counts of Attempted Robbery in the First Degree (N.Y. Penal Law § 160.10), and Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03) entered against him in New York State Supreme Court, Queens County. For the reasons set forth below, Mazique's petition for a writ of habeas corpus is denied.

I. Background

A. Factual Background and Trial

On September 30, 1994, at approximately 9:40 p.m., Detective Gerard Donoghue ("Detective Donoghue") responded to a radio call that a male had been shot in the vicinity of 97th Avenue and Brisbane Street in Queens, New York. (Trial Transcript, Testimony of Detective Donoghue ("Detective Donoghue Tr.") at 1026-27.)*fn1 When Detective Donoghue arrived at the location, he noticed that a vehicle had veered off the road and into a fence. (Id. at 1028.) Detective Donoghue approached the vehicle and saw that the driver was slumped over the steering wheel. (Id. at 1030.) After shining his flashlight into the car, Detective Donoghue "realized that there was blood everywhere [and] that the driver had been shot in the back of the head." (Id.) Detective Donoghue radioed for an ambulance to come to the scene. (Id. at 1031.)

In 1999, Mazique was indicted in Queens County on two counts of Murder in the Second Degree (N.Y. Pen. L. §§ 125.25(1), (2)), Manslaughter in the Second Degree (N.Y. Pen. L. § 125.15(1)), two counts of Attempted Robbery in the First Degree (N.Y. Pen. L. §§ 160.10(1), (2)), and Criminal Possession of a Weapon in the Second Degree (N.Y. Pen. L. § 265.03(2)). At trial, Mazique's former girlfriend, Diane Whaley ("Whaley"), implicated Mazique in the shooting. In addition, several law enforcement officers, including New York City Police Detectives Richard Kocienda ("Detective Kocienda") and Michael O'Brien ("Detective O'Brien"), and Tallahassee, Florida Police Investigator Woodrow Kerce ("Investigator Kerce"), testified about the four-year investigation and pursuit of Mazique that culminated in Mazique's arrest in December 1998.

i. Testimony of Diane Whaley

Whaley testified that she had been living in Jamaica, Queens in September 1994 with her four children, the two youngest of whom are Mazique's children. (Whaley Tr. at 892.)

Sometime that month, Mazique was released from jail.*fn2 After his release, he began regularly visiting his children at Whaley's house. (Id. at 896-97.) Approximately three weeks later, Mazique came to Whaley's house in the evening and told her that he had been shot. (Id. at 896, 898.) Mazique had a minor flesh wound on his thigh that was bleeding slightly, and Whaley "patted it" to stop the bleeding. (Id. at 899.)

Whaley testified that, after she attended to Mazique's wound, she came downstairs and noticed a light-skinned black man standing on the back porch of the house. (Id. at 901.) Whaley testified that she saw Mazique, whose back was to her, pick up a handgun from the floor and put the gun in his waistband. (Id.) There had not been a gun in the house before Mazique came over. (Id.) Mazique and the man who had been waiting on the porch left together left and got into a taxi. (Id. at 904-05.)

Whaley testified that she had heard a report on the following day's news that a cab driver had been murdered two blocks from her house.*fn3 (Id. at 906-07.) Whaley began to suspect that Mazique was involved in the shooting. (Id. at 1017.) Whaley testified that when Mazique had returned to her house a week after the reported shooting, she asked Mazique if he had been involved in the shooting. (Id. at 944.) He told her that he and the man who had been present at Whaley's house the night of the shooting "went to rob the cab driver and that the cab driver . . . grabbed the gun and the gun went off." (Id. at 908.)

Some time after Mazique told Whaley about the shooting, Whaley obtained Mazique's telephone number from her cousin, Delwin Williams, and called Mazique on the telephone several times. (Id. at 913.) One of the telephone numbers that Whaley used to call Mazique had a 719 area code, which is an area code for Colorado. (Id. at 914.) During these phone conversations, Mazique talked to Whaley about the murder and told her that he was sorry for what he had done. (Id. at 916-17.)

Whaley testified that, in 1999, she was hospitalized and diagnosed with paranoid schizophrenia. (Id. at 917.) She testified that, without appropriate anti-schizophrenic medication, she had hallucinations and heard voices "commenting on [her] and talking about [her]."*fn4 (Id. at 919.) She did not begin taking medication until after her diagnosis in 1999. (Id.) She explained that, in 1994, she suffered from a less severe form of paranoia but no hallucinations. (Id. at 920.) She believed people were talking about her, but she never actually heard these voices. (Id.) She testified that she was able to tell when something was real and when something was a hallucination and that her conversations with Mazique had, in fact, been real. (Id.)

On cross examination, Whaley testified that the two children she had with Mazique had been taken in 1995 to live in Colorado with Mazique's sister. (Id. at 925.) In 1999, Whaley attempted to visit the children but, pending a psychiatric evaluation, was denied visitation rights by a family court in Colorado. (Id. at 927.)

ii. Testimony of Detective Kocienda

Detective Kocienda was assigned to investigate the shooting. (Kocienda Tr. at 722.) By speaking with the victim's co-worker at the taxicab company, Detective Kocienda identified the deceased as Nadir Ahmed ("Ahmed"). (Id. at 724.) Detective Kocienda testified that he also canvassed the area looking for eyewitnesses or anyone who might have had information about the shooting.*fn5 (Id. at 724.) At some point during the investigation, Detective Kocienda received an anonymous telephone call stating that "Cash did it." (Id. at 726.) A computer database identified "Cash" as "Shawn Mazique," at which point Mazique became a suspect. (Id.)

Detective Kocienda testified that when he learned Mazique was on parole from his earlier sentence, he contacted Mazique's parole officer in an effort to locate Mazique. (Id. at 737-38.) As a result of his conversation with the parole officer, Detective Kocienda issued a "wanted card," a signal to law enforcement agencies around the country that the New York State Division of Parole should be notified if Mazique were arrested in any of their jurisdictions.*fn6 (Id. at 745.)

Detective Kocienda testified that he also spoke with Whaley on October 26, 1994.*fn7 (Id. at 746.) Whaley "reluctant[ly]" indicated that Mazique may have been involved or may have had information about the "events of 97th Street and Brisbane." (Id. at 750.) Detective Kocienda testified that he tried, without success, to locate Mazique at his last known address in Queens. (Id. at 751.) He also contacted Mazique's mother in Colorado to ask if she had seen or heard from Mazique. (Id. at 752.) Detective Kocienda was not able to locate Mazique during his investigation, and the case passed to the Cold Case Squad of the New York City Police Department. (Id. at 757.)

iii. Testimony of Detective O'Brien

Detective O'Brien, a detective with the Queens Cold Case Squad, began investigating the case approximately three years after the shooting took place. (Id. at 805.) Detective O'Brien testified that after he ran several searches for Mazique, including a New York State Department of Motor Vehicles search, a nationwide arrest search, and a Federal Bureau of Investigation fingerprint search, he obtained an address for Mazique in Colorado. (Id. at 802-03.) Detective O'Brien learned from authorities in Colorado, however, that Mazique's address was no longer current. (Id. at 804.)

Detective O'Brien testified that, in early 1998, he had begun to conduct surveillance of Whaley's home on 102nd Avenue in Queens. (Id. at 805-06.) After almost a year of surveillance, Detective O'Brien observed a car parked in the driveway of Whaley's home, and he checked the license plate to determine the individual to whom the car was registered. (Id. at 809.) The check revealed that the car was registered to Delwin Williams ("Williams"), with a nearby address on 107th Avenue in Queens. (Id. at 810.) In the garbage can in front of Williams' home, Detective O'Brien found an envelope addressed to Williams with a return address of "C. Mazique, 7031 Cedar Springs Road, Weaver, Alabama." (Id. at 812.) The envelope contained pictures that Detective O'Brien recognized to be photographs of Mazique. (Id.)

Detective O'Brien testified that he had contacted the Weaver, Alabama Police Department and had informed an officer there that he was looking for a homicide suspect whom he believed to be residing in Weaver. (Id. at 816.) Detective O'Brien subsequently traveled to Weaver, Alabama on three separate occasions. (Id. at 817.) On the third trip, Detective O'Brien spoke to Latasha Manuel, a member of the United States Army who knew Mazique. (Id. at 821, 833.) As a result of this conversation, Detective O'Brien learned that Mazique was in Tallahassee, Florida, and Detective O'Brien contacted the Tallahassee Police Department. (Id. at 834.) Detective O'Brien learned later that day that Mazique was in police custody at the Tallahassee Memorial Hospital. (Id. at 836.)

Detective O'Brien traveled to Tallahassee to meet with Mazique. (Id. at 837.) He explained to Mazique that the New York City Police Department had been looking for him for "quite a while" and that he wanted to question him regarding an active parole warrant and a 1994 homicide. (Id. 839-40.) Detective O'Brien testified that Mazique had replied that he would return to New York to answer the parole violation but that he did not have any information about the homicide. (Id. at 840.) On February 19, 1999, Detective O'Brien met with Mazique in the Ulster Correctional Facility in New York. (Id. at 841-42.) Detective O'Brien testified that when he had begun to question Mazique about the homicide case, Mazique had stated that "he didn't want to discuss it, unless he could get some sort of guarantee in writing from the District Attorney's office that he would only have to serve a couple of years in jail for the homicide." (Id. at 843.) ...

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