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Hill v. West

February 18, 2009

MICHAEL J. HILL, PETITIONER,
v.
CALVIN E. WEST, SUPERINTENDENT,
RESPONDENT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION and ORDER ADOPTING REPORT and RECOMMENDATION

INTRODUCTION

Michael J. Hill ("Petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his March 7, 1990, conviction and sentence in Niagara County Court, State of New York. The Court referred the case to the Honorable Victor E. Bianchini, United States Magistrate Judge, for a report and recommendation pursuant to 28 U.S.C. § 636(B)(1). On July 24, 2008, Judge Bianchini filed his Report and Recommendation (Docket No. 39), recommending that the petition be denied on its merits.

On July 30, 2008, Petitioner filed objections (Docket No. 40) to the Report and Recommendation. On August 6, 2008, Petitioner filed supplemental objections. For the reasons that follow, the objections are denied, the Report and Recommendation is adopted in its entirety, and this action is dismissed.

BACKGROUND

The underlying facts of Petitioner's case were set forth in the "Background" section of the Report and Recommendation, and are not disputed. Accordingly, the Court will only repeat those facts that are relevant to the instant Decision and Order. On August 25, 1989, in the City of Niagara Falls, Petitioner and his cousin, Shawn Person ("Person"), went to the Holloway Bar to confront Shawn Thompson ("Thompson"). Person was carrying a loaded shotgun belonging to Petitioner, which Petitioner had handed to him. Person shot Thompson with the shotgun, and Thompson died a few days later. Immediately after the shooting, Person and/or Petitioner hid the shotgun. The next day, Person and Petitioner were arrested. As part of the police investigation into the shooting, officers contacted Person's brother, Myron Johns ("Johns"), and asked him to talk to Person and find out the location of the weapon. Johns spoke to Person, and then told officers the location of the shotgun. A police report prepared on September 14, 1989, states, in relevant part: "On 9/12/89 Myron Johns brother of Person called and stated that his brother had told him where the gun was and that he may be able to get it back. Information be [sic] that Person had said the shooting was accidental and that Myron was told where the gun was at." (Niagara County Supplementary Report dated September 14, 1989). Officers later recovered the shotgun in the location described by Person.

On September 25, 1989, the Niagara County Grand Jury indicted Petitioner and Person for Murder in the Second Degree in violation of New York Penal Law ("Penal Law") sections 125.25(1) and 20.00, Murder in the Second Degree in violation of Penal Law sections 125.25(3) and 20.00, Attempted Robbery in the First Degree in violation of Penal Law sections 160.15, 110.00 and 20.00, Criminal Possession of a Weapon in the Second Degree in violation of Penal Law sections 265.03 and 20.00, and Criminal Use of a Firearm in the First Degree in violation of Penal Law sections 265.09 and 20.00.

On February 5, 1990, Person accepted a plea bargain and pled guilty to one count of Manslaughter in the First Degree, in full satisfaction of the charges against him. Notably, during his plea allocution before the Honorable Charles J. Hannigan, County Court Judge, Person stated that he intentionally shot Thompson. More specifically, Person stated that he and Petitioner went to the Holloway Bar to confront Thompson, because Thompson owed Petitioner payment for drugs. Person stated that Petitioner brought along a shotgun, concealed in a jacket, which he handed to Person when they reached the location where Thompson was standing. Person's plea continued as follows:

THE COURT: What happens next?

THE DEFENDANT: Mike [Petitioner] hands me the shotgun, Thompson comes from around the car, he has other people with him coming around the car, I blast him.

THE COURT: Where did you shoot him?

THE DEFENDANT: I can't remember, somewhere in the chest.

THE COURT: How many times did you shoot him?

THE DEFENDANT: Once.

THE COURT: Why did you shoot him?

THE DEFENDANT: Why did I shoot him? Because he was a drug dealer.

THE COURT: He's a drug dealer?

THE DEFENDANT: Owed money.

THE COURT: Because he owed money to a drug dealer?

THE DEFENDANT: What's that?

THE COURT: Because he owed money to a drug dealer?

THE DEFENDANT: Yes.

THE COURT: That's why you shot him?

THE DEFENDANT: Yes.

THE COURT: And the drug dealer's your friend, right?

THE DEFENDANT: He's my cousin.

THE COURT: Why didn't you let him shoot him? I mean, it's his drug deal, it wasn't yours, was it?

THE DEFENDANT: No.

THE COURT: Well, why didn't you say, hey, Michael, if anybody's going to shoot this guy, you shoot him?

THE DEFENDANT: Because he gave me the gun.

THE COURT: Well, I guess then you got to shoot him, somebody hands you a gun, right?

THE DEFENDANT: I guess if that's the circumstances. (Person Plea Transcript at pp. 9-10).

On February 8, 1990, Petitioner also accepted a plea offer, and pled guilty to Manslaughter in the First Degree, in full satisfaction of the charges against him. Prior to the plea, Judge Hannigan advised Plaintiff that pursuant to the plea, he could "be sentenced to a state prison for a minimum of eight and a third and a maximum of 25 years[,]" and Plaintiff stated that he understood the sentence range. (Hill Plea Transcript at 3). During the plea allocution, Petitioner initially stated that he had given the gun to Person earlier in the day, because Person "had a problem with some kids and he wanted to buy my gun." Petitioner stated that he was at the Holloway Bar when Person arrived with the gun and shot Thompson. Petitioner claimed that he was "just there" when the ...


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