The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Jayvon Thomas ("Thomas" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254 challenging his conviction on charges of intentional murder (N.Y. Penal Law § 125.25(1)) and related charges. The parties consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c).
Following the preparation of the instant Decision and Order, but before it was filed, the Court received information indicating that Thomas had died on February 26, 2007, a month after the consent order was entered in this case. Respondent did not notify the Court at the time of petitioner's death. Because the only relief Thomas seeks in his habeas petition is release state custody on the basis that his conviction was obtained unconstitutionally, his death means that there is no relief that this Court can grant to him, see, e.g., Calderon v. Moore, 518 U.S. 149, 150 (1996) (citation omitted), his petition for a writ of habeas corpus has been rendered moot. Accord, e.g., Garceau v. Woodard, 399 F.3d 1101, 1101 (9th Cir. 2005) (dismissing 28 U.S.C. § 2254 habeas petition as moot where petitioner died while in custody); Griffey v. Lindsey, 349 F.3d 1157. 1157 (9th Cir. 2003) (dismissing 28 U.S.C. § 2254 habeas petition as moot where petitioner died while in custody); Rivera v. Pearlman, No. 02 Civ. 2399(LAK), 2004 WL 533333, at *1 (S.D.N.Y. Mar. 16, 2004) (dismissing habeas petition brought under 28 U.S.C. § 2241(c) where petitioner died after he filed the petition; petition was mooted since there was no relief that could be granted to him). Therefore, dismissal of the petition is warranted on the basis that it is moot.
III. Merits of the Petition
Even had the petition not been mooted by Thomas' death, it did not present any meritorious habeas claims as discussed more fully below.
A. Factual Background and Procedural History
Thomas was indicted by an Erie County Grand Jury in connection with a shooting on the night of December 5, 1998, outside the Spotlight Bar in the City of Buffalo. Sean Franklin ("Franklin") died after receiving a bullet to the head. Ronnie Dupree ("Dupree") was shot in both legs and spent a night and a half in the hospital. The indictment charged Thomas with two theories of murder (intentional murder under N.Y. Penal Law § 125.25(1) and depraved indifference under N.Y. Penal Law § 125.25(2)), as well as one count each of second degree attempted murder (N.Y. Penal Law §§ 110.00, 125.25(1)), first degree attempted assault (N.Y. Penal Law §§ 110.00, 120.10(1)), second degree assault (N.Y. Penal Law § 120.05(2)), first degree criminal use of a firearm (N.Y. Penal Law § 265.09(1)(a)), and second degree criminal possession of a weapon (N.Y. Penal Law § 265.03).*fn1 Thomas' jury trial was conducted in Erie County Supreme Court (Wolfgang, J.), A summary of the relevant trial testimony follows.
On December 5, 1998, Dupree and Franklin were two of many patrons at the Spotlight Bar in the City of Buffalo's Riverside Community. It was generally known that there was going to be trouble at the Spotlight that evening between "the Shaffers" and "the Jaspers," two rival groups of individuals, named after the two housing communities in Buffalo in which the members lived. Thomas was associated with the Shaffers, the decedent Franklyn's group. See T.423, 457, 468, 470, 631, 651.*fn2
Various witnesses, such as Shedrick Edwards ("Edwards"), saw Thomas in the company of his brother, Diandre Richardson ("Richardson", a/k/a "TJ"), Steven Pena ("Pena") and Monique Brown ("Brown"). See T.496, 504, 508. Thomas was being social, talking with Dupree and Jamal Brannon (a/k/a "Bump"). See T.631-32, 665-66. One of the victims, Dupree, said that he was sitting next to petitioner, whom he knew as "Bubba," and talking with him. T.781, 783, 784, 819. Many witnesses, such as Tianna Poole ("Poole") had not known petitioner prior to the incident. See T.105, 168, 169, 658.
The Spotlight was crowded. According to Brannon, a/k/a "Bump", who was associated with the Shaffers, there was "mad tension," meaning "lots of tension," in the bar. T480, 658. Brannon was the boyfriend of Latrina Mays ("Mays"). T.627.*fn3 Mays, on the night before the shooting, had been involved in a fight with the girlfriend of Lewis Anders ("Anders"), and had some jewelry taken from her. T.652-53. Brannon admitted that he went to the Spotlight anticipating a fight, and that he told one of the detectives that he went in order to make sure that Mays "got a fair fight." T.651-54, 670. Brannon said that Anders (whose girlfriend had fought Mays), Pena, and Franklin (the decedent) were associated with the Jasper group. Brannon and his friends were in the Shaffer group. T384, 407. Brannon stated that just before the shooting, he had apparently started to walk with Robert Jones, a friend of the decedent's, towards Evelyn Street, to discuss how they could diffuse the situation. According to Brannon, he was afraid that something more than a fistfight would take place between the two groups. T.670.
Damone Tillman ("Tillman"), a member of the Shaffers, said that the decedent, Franklin, was intoxicated, and started to knock the balls off the pool table after members of the Jasper and the Shaffer groups began to mix. T.479. Matters came to a head after Poole and Perez arrived at the bar. T.182, 183, 185, 193. Perez and her husband, Pena, had a confrontation outside the bar about ten to fifteen minutes before the shooting. T.472, 475. Tillman stated that immediately after the showdown between Perez and Pena, petitioner had asked Tillman, "are you hauling, do you got a strap or something like that." T.457. Petitioner was asking whether Tillman was carrying a gun. Petitioner said to Tillman, "well if anything happen [sic] I do and he lifted up his shirt and showed me a gun." T.457-60. Petitioner displayed a .38-caliber gun tucked into his belt. See T.457-59, 460, 483.
At some point, a bunch of people exited the bar; among them were Franklin; his cousin, Mark Irving; Dupree; and petitioner. Poole testified that Franklin took off black leather coat and handed it to Richardson, a/k/a, TJ. T.114. Richardson/TJ was petitioner's brother. Franklin said to Joel Jennings (a/k/a "Scooty"), who was in Brannon's group, "We can do it, right?" T.114, 116, 222.
Shortly thereafter, Edwards testified, "shots rang out." T.393. The shooter "emptied the whole clip" and the shots were "rapid, one after another." T.393. Edwards looked towards the payphone and said, "I seen Bubba [i.e., petitioner] shooting" with the gun "pointed towards Bump and them [i.e., the victims]." T.393-94. At the time, Franklin, the decedent, was two to three feet away from petitioner. Edwards saw both Dupree and Franklin fall to the ground.
Edwards said that the shooter put the decedent's black leather jacket over his hand and begin shooting towards Evelyn Street. T.433-34. Edwards saw Dupree and the decedent fall but did not see how the decedent had been shot. T.396, 397, 432. (Dupree was shot twice in the leg and Franklin was shot in the forehead.)
Edwards said that petitioner then turned around the corner onto Philadelphia; Edwards did not see him after that. T.399. Edwards testified that he had not had any problems with petitioner prior to the shooting. T.398. Edwards testified that about 5 to 10 minutes before the shooting began, he saw Brown (Thomas' former co-defendant) "pass" petitioner a gun. T.388, 412.
Poole, who had come to the bar with Perez, saw petitioner just before the shooting started. Poole observed the Shaffers and the Jaspers squaring off outside the bar and claimed that she was concerned for the decedent's safety. T.120. Poole recalled that petitioner was pointing a gun down the street but she could not say that he was pointing the gun at Franklin. T.92, 98, 99, 102, 105, 118. Petitioner was standing only a few feet from Poole, who was able to observe him for about 10 to 15 seconds. Poole heard gunshots and then saw Franklin on the ground. Poole did not see anyone else besides petitioner with a gun that night. T.91-96, 98-99, 102, 103, 118.
Mark Irving ("Irving") said that he heard gunshots and saw petitioner shoot at Franklin from about three feet away. T.317-18, 370. Irving said that petitioner was leaning by the payphone next to the bar, with his back towards Philadelphia Street. T.91, 92, 119, 313, 787-89. Franklin was standing on one side of the fire hydrant facing Dupree and his friends, who were on the other side of the fire hydrant. T.322-23. Irving said that the shooting came from behind the payphone and petitioner was on the side of the payphone reaching his arm around the front of it.
T.319. Petitioner pulled his gun out and, without moving his body or his arm, shot first towards Evelyn Street. and, after a shot or two, towards the decedent, Franklin. T.321, 324, 343. When the shooting started, Irving backed up against the bar and called the decedent, who turned, as though he was going to run, and then fell. Irving did not know that Dupree had been shot. T.321. After Franklin fell to the ground, Irving heard four to five more shots. T.325.*fn4
Tracy Epperson ("Epperson") said that it appeared that decedent and the other victim, Dupree, were about to fight each other. T. 151, 154, 186, 188. Epperson testified that the decedent was standing in the company of Dupree and others near the payphone facing Philadelphia Street. T.153-55, 186-89. Epperson saw petitioner approach from around the corner of Philadelphia and Ontario. Petitioner started shooting from a position in the street; he was aiming in the direction of Eveyln Street. T.156-57.*fn5 Epperson then saw that Franklin, the decedent, was on the ground. T.156- 58. According to Epperson, no one else had a gun besides petitioner. T.164. Epperson did not see Franklin actually get shot.
Michael Jackson ("Jackson"), one of the decedent's brothers, saw the shooting through the window of the bar. Jackson said that he saw Franklin making hand gestures, waving his hand to and fro. T.223, 224. Franklin turned towards Philadelphia street, where TJ, Pena, Perez, Irving, and Poole were standing. T.224. The shots came from the corner of Philadelphia street. Jackson saw petitioner holding the gun and shooting. T.225-26. Franklin was only about two to three feet away from petitioner when he was shot. T.223, 225, 228, 232, 263. Jackson testified that he had seen petitioner before that night. T.296.
Dupree said that, as he and the decedent Franklin spoke to each other, petitioner pointed a black handgun towards him. Petitioner was standing about ten feet away from Dupree. Franklin was in the middle, facing Dupree, about five feet away from both petitioner and Dupree, who stood on either side of him. T.790-93. Petitioner pointed the gun straight out from his body and shot Dupree in the back of his leg. Dupree fell and jumped back up and started running. Dupree related that as Franklin turned towards petitioner, he was shot in the head. T.790-91.
As Dupree ran towards Evelyn Street, he was shot in the kneecap of the other leg and he fell again, but he got up once more. T.794. Dupree also felt two bullets go through the back of his jacket and come out at the collar. T.798-800, Dupree did not suffer injury to his shoulder or upper body. T.836-37.*fn6
Several Buffalo Police officers parked about two car lengths from the corner of Ontario and Philadelphia Streets, with a clear view of the Spotlight bar, saw matters beginning to escalate in the group outside the bar. The officers heard shouting and decided to intervene. Before they could exit their vehicle, they heard six to seven shots. T.555, 556, 560, 576. Officer Figueroa said that he heard six to eight shots with a slight pause between the first three shots and the rest. He could not see where the shooting was coming from. T.596, 597, 598. Although the rapid fire of the shots he heard was more consistent with ...