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Glover v. Filion

August 14, 2009

LAMAR GLOVER, PETITIONER,
v.
GARY FILION, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Introduction

Pro se petitioner Lamar Glover ("Glover" 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 charges of second degree murder (N.Y. Penal Law § 125.25(2)) and second criminal possession of a weapon (N.Y. Penal Law § 265.03(2)). Glover's conviction was unanimously affirmed on direct appeal, and leave to appeal was denied. People v. Glover, 302 A.D.2d 926 (App. Div. 4th Dept.), leave denied, 99 N.Y.2d 654 (N.Y. 2003). Glover's subsequent application for a writ of error coram nobis challenging the effectiveness of his appellate counsel was summarily denied. People v. Glover, 4 A.D.3d 900 (App. Div. 4th Dept.), leave denied, 3 N.Y.3d 640 (N.Y. 2004). This timely habeas petition followed. For the reasons that follow, Glover's request for a writ of habeas corpus is denied and the petition is dismissed.

II. Factual Background

The conviction here at issue stems from the fatal shooting of David Nesmith in the City of Rochester on October 12, 2000. That night, sixteen-year-old Glover was carrying a.45-caliber handgun. He was with three of his friends, one of whom was armed with a.44-caliber handgun.

They had been driving around the city for about two hours before spotting Nesmith walking on Pardee Street at approximately 11:30 P.M. After André Parsons pulled the car over on nearby Bismark Street, petitioner and Parsons exited the vehicle to confront Nesmith, with whom petitioner previously had "had a problem." (The sentencing minutes reveal that petitioner had previously shot Nesmith 37 days prior to fatally shooting him. See Transcript of Sentencing Hearing at 4).

Investigator Reinstein testified that before petitioner provided and signed a written statement he supplied various accounts as to his actions that evening. At first, until being informed that the police would check on his story, Glover maintained that he had not been on Pardee Street at all, alleging that he had been with Shameika Scott until early morning. He then withdrew that account, and accused two of his friends of the shooting. He subsequently claimed that the shot came from an unknown source. T.364-365.*fn1

Petitioner ultimately gave the following written statement to the police: André [Parsons] told me to watch this guy, he said he's reaching. I kept walking towards him. I saw that what he was reaching for, it ended up being cigarettes. I talked to Dave [Nesmith] for five minutes or so. After talking to him, he started talking junk to me and then started walking towards me. I was walking away from him when he walked towards me. When he did this, I pulled out my gun. When I pulled out my gun, I pointed it at him. He then tried to grab the gun out of my hand. When he was trying to grab it, it went off and it hit him. When it hit him I got hit with pieces of meat. I was scared and started running. I ran across Remington Street and almost ran into a police car. I ran through towards Avenue D. I went back to the store at North Clinton and Clifford. I hung out for a while and then went home. I got a ride sometime after midnight. I drove to - - by the new jail and threw the gun in the canal.

T.368-370.

Nesmith, the victim, was twenty-two-years-old, 5'6", and reportedly weighed over 400 pounds. T..420. Deputy Medical Examiner Ana Rubio testified that Nesmith's hands had been placed in paper bags prior to the autopsy, and that at the time of the autopsy Nesmith's right hand was still clenching a cigarette. She further testified that the entrance wound was in the left temple and was at a higher location than the exit wound at the center of the back of Nesmith's head. Rubio further noted that there was no singeing of Nesmith's hair; had singeing been present, it would indicate that the wound was inflicted at close range, i.e., less than a foot away.

T.400-420. Based upon this factor, Rubio opined the wound was most likely inflicted from a distance of greater than a foot away. T.421-422.

III. Discussion

A. Ground One: The Verdict was Against the Weight of the Evidence

As Glover's first ground for relief, see Petition ΒΆ12(a), he asserts that the "jury's verdict of murder was against the weight of evidence which proved only reckless action by petitioner, not the high degree of recklessness and the depraved indifference factual setting which are required for murder in the second degree." See Petition at 4-8 (Docket No. 1). On direct appeal, the Appellate Division held that "[c]ontrary to the further contention of defendant, the verdict finding him guilty of depraved indifference murder is not ...


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