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Redd v. Burge

December 10, 2008

KEVIN REDD, PETITIONER,
v.
JOHN W. BURGE ET AL., RESPONDENTS.



The opinion of the court was delivered by: Richard J. Holwell, District Judge

MEMORANDUM OPINION AND ORDER

Kevin Redd, a prisoner in the custody of the State of New York, petitions for a writ of habeas corpus based on his trial counsel's failure to seek suppression of an investigatory lineup under People v. Coates, 543 N.E.2d 440 (N.Y. 1989). Before the lineup, at the lineup, and at trial, Errol Medina identified Redd as one of the people who executed his girlfriend and shot him twice in the head.

On October 10, 2007, Magistrate Judge Kevin Nathaniel Fox issued a Report and Recommendation recommending that Redd's petition be denied. Having undertaken a de novo review of Magistrate Judge Fox's thoughtful report and recommendation, portions of which are incorporated into this Opinion, the Court denies Redd's petition.

BACKGROUND

Unless otherwise noted, the following is undisputed.

I. The Underlying Offense

On the evening of April 30, 1992, Janine Barksdale was at home in her apartment in the Bronx. (See Pet.'s Mem. of Law in Supp. of Pet. for Writ of Habeas Corpus 7 ("Pet. Mem.").) Barksdale's two young children, who were about five months and four years old at the time, were with her. (See Tr. 224-25, 228.*fn1 ) Around 6:00 or 6:30 p.m., Barksdale let a group of three to five people (the exact number is unimportant) into the apartment. (See Pet. Mem. 7-8). Around 7:30 or 8:00, Nicole Esters arrived. (Id. at 8.)

While Esters was sitting in the living room with the assembled group, someone in the group asked Barksdale "where was the money and the drugs and the guns." (Pet. Mem. 8 (quoting Tr. 280-82).) When Barksdale claimed not to know, one person tied her hands behind her back and led her into the baby's bedroom. (Pet. Mem. 8.) While Esters watched the children in the living room, the rest of the group ransacked the apartment looking for money, drugs, and guns. (See Tr. 286-87.)

At about 10:00 or 10:30 p.m. Errol Medina, the father of Barksdale's children, arrived. (Pet. Mem. 9.) There was a fight, which ended when someone told Medina to stop fighting or his children would be killed. (Pet. Mem. 9.) Medina's head was covered with a hood, and he was led into the bedroom. (Id.) There, someone cut his neck and forced him to lie down. (Id.) Janine Barksdale, who at some point had been removed to the master bedroom, was brought into the bedroom with Medina. (Tr. 410.)

Medina described what happened next.

Q: Were you able to have a conversation with Janine at that point?

A: Yeah.

Q: What did that conversation consist of?

A: She said, we all going to die, and she started crying and I told her something like, it will be all right, and I loved her and that was it.

Q: Now after this conversation, could you hear anything else going on in the apartment at that point?

A: I heard the music go up, and I heard a [gun's] slide click and chamber a round.

Q: At that point, after you heard the slide clicking, what happened next?

A: Then I heard two shots go off, then somebody else came up to me, put a gun to my head, you know, I was like, just give a [sic] me a little second so I can say a prayer, make my peace, whatever, and I got shot twice in the head.

Tr. 411-13. Medina survived the shooting, pretended to be dead, and eventually took an ambulance to ...


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