The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Bryon K. Russ ("Russ" or "petitioner") has filed a petition for a writ of habeas corpus challenging his conviction in Wayne County Court, New York State Supreme Court, following a jury trial on charges of first degree robbery, first degree burglary, first degree assault, and related charges in connection with a "home invasion"-type of incident. The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
Russ was indicted along with two co-defendants, Rasheen Madison and Shamgod Thompson, and charged with invading the home of Rebecca Henrichon in Wayne County, New York. Russ and his cohorts believed that Henrichon was secreting illegal drugs in her house, although ultimately no drugs were found. Henrichon related that a "really young black male", whom she later identified as Madison, knocked on her door and asked her if she had any weed. Upon her telling him no, he asked again, and looked to the side, causing her to become nervous.
She began to close the door, but he and two black males whose faces were covered with red and white bandannas rushed in, knocked her out, and dragged her upstairs into her children's bedroom where pushed her face down and the bed and bound her with telephone cord and packing tape. The "youngest guy" (Madison) had his knee on her back and taped her up, while the two "older guys" were ransacking the house. Madison said that he wanted to fuck her, but the other "guys . . . yell[ed] that they just wanted to get the stuff and get out." One man put a machete to her throat and the other one held a small, "silver-plated" pistol to her head; they said "[t]hey were going to pop a cap in [her] and get the fuck out." The assailants were in her house for about half-an-hour and cut all the cords to her phones.
Nelson Vasquez, a friend of Henrichon's had gone out to the store to get an ice cream cake because Henrichon was hungry. As he was coming into the house, he "got yanked in" and had a silver-plated .22 or .25-caliber gun put to his head. The robbers, whom he could not see well enough to identify, because it was dark, took a silver chain necklace with a scorpion on it and his house keys. Vasquez, like Henrichon, was asked where the money and the weed was, to which he replied he did not know. He heard two of them speak, and the third one did not say anything. Eventually, the intruders left; Vasquez went upstairs and found Henrichon on the kitchen floor, still tied up.
Later that night, at a gas station in the area of the robbery, the police stopped a sport-utility vehicle ("SUV") matching the description of a vehicle that had been involved in an incident earlier that night in Geneva. Russ was driving; Thompson was in the front passenger's seat, and a person who gave his name as Tony K. Jones was in the back seat. The officer saw what appeared to be a machete sheath sticking out of Russ's pants. (A machete was left behind by the robbers at Henrichon's house.). At that time, the police did not detain them further.
As it turned out, "Tony K. Jones" was an alias of Madison's. He was brought in for questioning and gave a statement to police detailing his participation in the burglary of Henrichon's house. Both Russ and Thompson eventually were arrested and all three were indicted jointly. Severance was denied, and Russ was tried jointly with two his co-defendants.
Madison's confession was redacted to remove all reference to the existence of other any individuals and was read into the record at the joint trial. See T.498-501;*fn1 People's Exhibit 32. The SUV which the three had been driving belonged to the mother of Torey Ronan, a girlfriend of Thompson's who lived Ellenville, just outside of New York City. Thompson had borrowed it from Ronan on the day of the crime, but he never returned it. In fact Ronan never saw it again. The Ronans reported the vehicle stolen and it, along with Madison, turned up in New York City at 3 a.m. Recovered from the vehicle were items of clothing that exactly matched those described by the victim to have been worn by the perpetrators (e.g., a red sweatshirt with a New York logo, Tommy Hilfiger jeans, a striped motorcycle-racing jacket; a dispenser of packing tape; the jewelry stolen from Henrichon and her friend, Vasquez, a "Number One Dad" keychain with housekeys that belonged to Henrichon's roommate; and a silver-plated .25-caliber handgun.
Two acquaintances of the defendants, Kevin Hobbs and Robert Johnson, testified that Russ, Thompson, and Madison gave them a ride in their SUV to Newark, near Geneva. Hobbs stated that the defendants wanted some marijuana, and Johnson apparently knew a "white boy in Newark" who had some. There was "discussion [about] where he lives [and] that he stayed with his girlfriend." T.709. On the ride, Hobbs saw a loaded .25-caliber chrome handgun. Madison had it first, then Hobbs took it, and it was passed back to Thompson. As Hobbs and Johnson were exiting the SUV, Thompson pointed the gun at Hobbs and said, "Give me what you got."
T.711. Hobbs gave him all the cash and marijuana he had on him.
About a month later, Hobbs ran into Russ, who accused Hobbs of "snitching on him" and stated that Hobbs "needed to be dealt with because [Russ] had gotten a letter from somebody else saying [he] was snitching on [Russ]." T.710. At first Hobbs told the police he did not know anything about the incident because he did not want to get involved since Russ and his friends had guns.
At trial, Johnson testified similarly to Hobbs about the conversation with Russ, Madison, and Thompson, that occurred while they were riding around in the SUV. Johnson related that Russ knew about the "white boy" in Newark who supposedly had marijuana. Russ said "they knew what kind of car he drives and they knew the spot he would be in." T.714. Johnson also noted that there was a machete inside a case in the back of the SUV. At one point, Johnson said, Russ had the sheathed machete in his hands. (The police discovered a blue tape dispenser inside the SUV which had Madison's fingerprints on it; the dispenser introduced into evidence at trial.)
Johnson testified that he told the police he was visited at his home about a month later by Russ, Madison, and another person (not Thompson). They were toting guns and were threatening towards Johnson. Johnson admitted that he made a deal with the prosecutor that in exchange for his testimony, the prosecutor would tell the district attorney in Tompkins County, where Johnson had a pending charge for gang assault, that he had cooperated in connection with the Russ/Madison/Thompson trial.
The jury returned a verdict finding Russ not guilty of count one (first degree robbery), but guilty of the lesser included offense of second degree robbery; guilty of count two (first degree robbery); guilty of count three (first degree robbery); not guilty of count four (first degree robbery) but guilty of the lesser included offense of third degree robbery; guilty of count five (first degree robbery); and guilty of count six (first degree robbery). He was sentenced to a term of imprisonment of twenty-four years and six months. On direct appeal, the Appellate Division, Fourth Department, unanimously affirmed the conviction, and leave to appeal to the New York Court of Appeals was denied.
Proceeding pro se, Russ filed a motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 in the trial court, which was denied. The Appellate Division denied leave to appeal.
This timely habeas petition followed, in which Russ raises six grounds for habeas relief:
(1) the verdict was against the weight of the credible evidence; (2) the trial court erroneously denied his motion for severance; (3) the use of his co-defendant's redacted confession was a violation of Bruton v. United States, 391 U.S. 123 (1968), and the Sixth Amendment right to confrontation; (4) the trial court erroneously denied his C.P.L. § 440.10 motion without an evidentiary hearing; (5) the trial court erroneously denied trial counsel's motion for a mistrial based upon prosecutorial ...