The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Arthur Woods ("Woods" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction, following a jury trial, on one count of first degree robbery, two counts of second degree robbery, and one count of endangering the welfare of a child. The parties have consented to disposition of the matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
On November 22, 1996, Larry Little, Veronica Kim Purks, and Little's six-year-old grandson, Rondel Little, were returning home from dinner at about 6:00 p.m. and going up the stairs to the porch at their house on Gerard Street in Buffalo. T. 38, 68, 136.*fn1 As Little was unlocking the door, someone called out "hey, Larry," and they turned around and saw four men.
T. 40-41, 137-138. The men were black and were wearing hooded jackets. One of the men yelled, "get down, Larry, get down," and then they beat and kicked him. T.45, 139. Little testified that every time he tried to look up he would get "smashed in the head . . . kicked in the side or stomped ." T. 54. After the robbery, Little's face "was swollen and he could hardly breath [sic]."
The "other guy, the one that snatched [Purks'] jewelry and threatened [their] grandson, he was down on his knees going through Larry's pockets and they took Larry's jewelry off of him."
T. 40-42, 51, 57, 138-139. Little and Purks recalled that petitioner kept saying "get the money, get the money" and "spin that kid around and they'll tell where it's at." T.52, 56. After the robbers had taken their belongings, said that man said, "look where I got you at now, the great Larry Little, look where you at now, you're down on the concrete." T.45, 140. Purks testified this man's voice "was very familiar" and after the robbery, she "did put the voice to who it was." Little testified that he recognized the voice of the man who said this as Woods, whose voice he had heard "numbers [sic] of time [sic]" before." T.46, 50, 59.
Little knew Woods' parents before he (Woods) was born; Little had known Woods "all his life." Woods used to come over to his house "all the time" and also had lived with Little's wife when she was alive. T.47, 124. Purks testified that petitioner's mother was her maid, and Woods used to come pick her up; Woods would come over to their house and talk to Little, and he gave their grandson a dog. T.142. Woods was "friendly" with them and Purks considered him part of the family. T.142.
The robbers took cash and jewelry from Little and stole jewelry from Burks. T. 45, 139. Petitioner threatened to kill their grandson if Purks and Larry Little did not cooperate. T. 138. Petitioner took more than $400, a diamond bracelet, a watch with diamonds, and two rings. T. 53. All four assailants then fled toward Roebling Street to a waiting automobile. T. 188-189.
Abraham Plenty, who was on his way over to Little's house, saw three men running toward a car. He recognized one of these men as petitioner. It was dark out, but there was a street light by where he saw the car. T.200. Boobie was about 50 feet away from him. T.200. Plenty had known Boobie for about twenty-some years. T.186. Plenty was walking down the street from work and saw three men running to a car; he recognized one as Woods and called out, "hey, Boobie, what's up, and they jumped in the car and they pulled off." T.188. Woods did not respond to Plenty's greeting. Id. Plenty testified that he saw petitioner's his face at the time.
Continuing on to Little's home, Plenty found Little lying on the ground, "clothes all messed up . . . looked like he was in a lot of pain." T.190.; Purks and Rondel were in tears.
T.190. Purks informed Plenty that they had been robbed. T.191. Plenty "was kind of shocked because [he] had seen Boobie" and he knew that Boobie was "Supposed to be his nephew, so [he] said, you know, Boobie did that." T.191.
Little testified that after the incident he "found out who it was," meaning that he "knowed it was [petitioner] when Abraham Plenty come around the corner" and said that he saw "Boobie running down the street . . . ." . T.119,120. Purks testified that after she talked to Plenty and "put[ ] the voice and the basic body description" together, she "knew who it was" who robbed them. T.144. Little didn't tell the police because he "was going to try to get [his] stuff back." T.119, 122-23.
Little testified that he told the police that he had gotten robbed, but he "didn't know for sure who it was" and he "couldn't think at that time," but he "was still remembering that voice, that distinction [sic] voice." T.59. Little testified that Woods had called their house several times and made threats, frightening his girlfriend, Purks. Little testified Woods also came to their house with two other men and said, "you saying I robbed you. . . . you don't know who robbed you . . . but every time I see you from now on out I'm going to rob you." T.60.
Little and Purks testified that they did not call the police to report the robbery because they wished to settle the matter privately with petitioner and also because they were afraid of petitioner. P. 78, 80, 101-03, 124-25, 146, 161, 173, 184. Purks testified that they had tried to talk to Woods; they also talked to his mother, his uncle, and his brother, and other mutual acquaintances to try to resolve the matter; Purks was afraid Woods might come to their house because he had been calling them on the phone. T.147. Purks had spoken to Woods on the phone and told him that she did not think he had robbed them because Woods had been asking for money, and she was trying to appease him and keep him from doing "[s]omething more drastic than what he had done when he robbed [them]." T.150.
However, when they went to the hospital to obtain medical treatment, the police were called by hospital personnel. T. 67, 145. Purks and Little gave descriptions of their assailants but did not inform the police that they recognized the sound's voice as the distinctive voice of petitioner whom they had known for number of years. T. 214, 216. Little admitted that he told the police that he could not identify any of the suspects and that he testified at the grand jury he could not see the assailants' faces clearly. T.78, 92. Little and Purks described a suspect who was shorter, darker-complected, and with a smaller build than petitioner. T.138, 43, 57, 162, 173, 180, 212. They told the police that Little's jewelry was taken but did not mention the robbery of Purks' jewelry.
Little stated that Woods called him from jail and said that when he got out, Woods told Little that he was "going to step to [Little]" meaning that "he going [sic] to kill" him. T.127. When Little and Purks found out that Woods was in jail, they decided to report the incident to the police; they had not done so before because they were afraid of Woods. T.127, 147-48.
In the weeks following the robbery petitioner called Little and Purks on the phone because Little had been trying to get his property back from petitioner. T.150, 154, 177. In at least one of the phone calls, Purks stated that she knew that petitioner was not one of the robbers.
T.154. She explained that she did that because she was afraid of petitioner. T.155. Purks admitted that he did not overtly threaten her on the phone but she was intimidated by his repeated calls. T.154. Woods did threaten to "spit in Verna's face because Verna had confronted [Woods'] mother about him robbing" Purks and Little. T.175. Verna was Little's sister. Woods also said he was going to "roll up on her ass," in reference to Verna. T.176. and Little testified that ...