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Wesley v. Ercole

August 19, 2009


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge


Petitioner Shuaib Wesley, a state prisoner appearing though counsel, filed a petition for habeas corpus relief under 28 U.S.C. § 2254. Wesley is currently in the custody of the New York Department of Corrections and Rehabilitation, incarcerated at the Green Haven Correctional Facility. Respondent has filed an answer to which Wesley has replied.*fn1


The facts of the crime, as determined from the testimony of witnesses for the State,*fn2 are as follows. In the early-morning hours of May 27, 2001, Shyrone Reape went with his cousin, Shanida Robinson, and two of Robinson's friends, Nicole Kilibrew and Yvonne Powell, to a party at a club at 109 Court Street (the "109 Club"). Although the club was dimly lit, strobe lights made it possible to see faces. After having drinks at the bar, the three women were dancing together on the dance floor near the disc jockey ("DJ") booth when Robinson's ex-girlfriend, Jazmin Leon, accused Killibrew of pushing her. The two began to argue.

Reape walked over to the group and asked what was going on. Another man suddenly punched Reape in the face and Reape punched back. Other people, including Robinson, joined the fracas.*fn3

Suddenly, shots rang out, and the melee on the dance floor ceased. Robinson saw blood on the floor, and saw a guy pick up a gun from the floor; she then heard a third gunshot. The gunshots sounded like they were coming from near the DJ booth.

Jamar Johnson, another guest at the party, was at the DJ booth when he saw that what had started as a fight between some women was escalating into an all-out brawl. Johnson started to walk towards the back door to leave the party when he heard a gunshot; he began to run, then felt a searing pain in his leg as two or three more gunshots were fired.*fn4 He yelled "I'm hit!" and hopped towards the door as two more gunshots rang out.

Reape felt a bullet hit him in the lower back. He turned around, and saw a dark-skinned male, who was not part of the fight, firing at him; he heard two more shots, and felt a bullet hit his inner elbow and one graze his face. Reape fell to the ground, and he heard a fourth gunshot, which sounded like it came from a different gun than the first three shots.

Four of Wesley's friends who were with Wesley at the club testified as eyewitnesses at trial: Nicole Armstrong, Khadijah Anderson, Jamiallah Myers, and Curtis Livingston, known as "Bugsy" and a lieutenant in the Crips gang, had all been with Wesley at the club; Myers' brother, Salih "Capone" Shabazz, was also with the group, but did not testify. Myers had known Wesley, whose street name was "True Blue," for years; he was a good friend of hers and had babysat her children. Armstrong was also good friends with Wesley.

According to Armstrong, the dance-floor brawl by the DJ booth began when a girl came up to Jazmin and bumped her really hard. Jazmin punched the girl, and two of Jazmin's male friends picked Jazmin up and put her by the DJ booth while the brawl escalated a few feet in front of them. Armstrong saw Wesley, who was dancing with Anderson just on the other side of the melee, pull out a gun, then drop it, pick it up from the floor, and point it at some guy she did not know. Armstrong dropped to the floor with her head down, and heard two or more shots go off.

Myers was dancing near Wesley and Anderson when she saw people fighting on the dance floor. Myers saw petitioner draw a gun from his back waistband and point it. She immediately heard five or six shots, and saw a boy dressed in red fall down. As Myers started to run, she saw Anderson grab the gun from petitioner and heard it fire again, hitting some other guy in the leg and splattering Anderson with blood. Myers saw Wesley put the gun back at his waist.

Anderson also recalled seeing first girls, then a huddle of people fighting. She was dancing with Wesley when she heard shots fired from across the huddle, then she saw Wesley point a gun and fire twice; Anderson did not know where the gun came from. She pushed down Wesley's hand, and he quit firing and fell to the floor. Anderson picked him up and they ran out of the club.

Later, Myers, Armstrong, Anderson, Capone and Wesley, among others, all met up at Bugsy's house. There, either Wesley, Capone, or Bugsy told Myers that the gun Wesley used had been in Capone's coat when Myers carried the coat into the club. Wesley changed out of the bloody clothes he had been wearing, and Bugsy said he would dispose of the gun and the bloody clothes. Bugsy congratulated Wesley and gave him "mad props" on the shooting, because it would improve his status with the Crips and earn him "OG status," meaning the high rank of "Original Gangster."

Curtis Livingston, a.k.a. "Bugsy," testified under subpoena that he was not at the 109 Club; that Wesley, Myers, and a few others went to his house for 5-10 minutes after the 109 Club shooting and Wesley told him "he shot a Blood" to "get his OG status"; but denied that Wesley had given him the gun or any bloody clothes to dispose of.

Myers, Armstrong, Wesley, and another male took a cab to the Ramada Inn, where Myers had rented a room, and stayed there the rest of the night. In the cab, Wesley told the group that he had "had to pop off," meaning, shoot.

Wesley was convicted after a jury trial in the Broome County Court of Assault in the First Degree (New York Penal Law § 120.10(1)), Criminal Possession of a Weapon in the Second Degree (N.Y. Pen. Law § 265.03 (2)), and Criminal Possession of a Weapon in the Third Degree (N.Y. Pen. Law § 265.02 (1)). The Broome County Court sentenced Wesley, as a second violent felony offender, to concurrent, determinate terms of twenty-two years' imprisonment for the first degree assault conviction, and five years for each of the other convictions, to be followed by five years' post-release supervision. However, due to a sentencing error, Wesley was resentenced to a determinate term of seven years' imprisonment for the Criminal Possession of a Weapon in the Second Degree conviction, and to an indeterminate term of two-to-four years' imprisonment for the Criminal Possession of a Weapon in the Third Degree conviction.

Wesley timely appealed his conviction to the Appellate Division, Third Department, which affirmed his conviction and the New York Court of Appeals denied leave to appeal on October 25, 2005.*fn5 Wesley timely filed his petition for relief in this Court on September 18, 2006. Subsequent to filing his petition in this Court, Wesley sought and obtained a stay while he returned to the state courts to exhaust his unexhausted grounds. Wesley filed a motion for a writ of error coram nobis in the Appellate Division, which was summarily denied without opinion or citation to authority and leave to appeal was denied by the New York Court of Appeals.*fn6


In his Petition Wesley raises four grounds: (1) ineffective assistance of both trial and appellate counsel; (2) insufficiency of the evidence/the verdict was against the weight of the evidence; (3) conviction was obtained by the use of a coerced confession; and (4) prosecutorial misconduct. Respondent contends that: (1) to the extent that the first ground alleges ineffective assistance of trial counsel it is unexhausted and procedurally barred; (2) Wesley's claim in the second ground that the verdict was against the weight of the evidence is unexhausted; (3) Wesley has procedurally ...

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