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Johnson v. Burge

September 22, 2009


The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge


I. Introduction

Pro se petitioner Alonzo Johnson ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered May 23, 2000, in New York State, Supreme Court, Erie County, convicting him, after a jury trial, of one count of Murder in the First Degree (Penal Law §§ 20.00, 125.25[1]), one count of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[1]), and one count of Criminal Possession of a Weapon in the Fourth Degree (Penal Law § 265.01[4]).

For the reasons stated below, the petition is denied.

II. Factual Background and Procedural History

The charges arise out of a shooting incident that occurred on February 26, 1999 in the City of Buffalo. On that date, Petitioner drove a blue Honda Accord with black trim ("the vehicle") on Ada Place in Buffalo, New York with his wife, Donna Page Johnson ("Donna" or "the co-defendant"), in the passenger seat. Trial Transcript (T.T.) 87-90, 153-54, 221, 316. Andre Frazier ("Frazier" or "the victim") and Anthony Stallworth ("Stallworth") were walking on Ada Place. T.T. 221. The two had known each other since they were young children. T.T. 215. Petitioner stopped the vehicle to speak with Frazier and Stallworth. T.T. 221. Petitioner asked Frazier for the thirty dollars that he loaned Frazier to purchase a battery, which Frazier never purchased. T.T. 221-22, 236, 422-423. Frazier indicated he did not have Petitioner's money. T.T. 236. Petitioner then told Donna to lean her seat back, which she did. T.T. 236-37, 326-27. Petitioner grabbed a shotgun, pointed it at Frazier, and fired a single shot through the open window of the vehicle, hitting Frazier. T.T. 77, 90, 157, 236-40, 245. Frazier and Stallworth had already started to run before the shot was fired. T.T. 243-44, 247, 291, 295-96, 331. The trajectory of the bullet through Frazier's body tended to establish that Frazier was running away when he was shot. T.T. 790-92. After the shooting, the vehicle sped away. T.T. 91-93, 157, 247. Frazier died from the gunshot wound. T.T. 788.

The police apprehended Petitioner approximately one hour after the shooting. T.T. 358, 382. At police headquarters, after receiving his Miranda warnings and signing a Miranda warnings card, Petitioner told a detective he had been untruthful about where the gun involved in the shooting could be found. T.T. 415-16, 418-20.

Petitioner indicated that the gun was in the bushes off the Best Street ramp in Buffalo leading east onto Route 33. T.T. 363, 368. The police searched this area, however, but did not find a gun. T.T. 364, 369. While in custody, Petitioner also made the following statements to police: that he could not have been at the scene of the crime at the time of the shooting because he was at "ABC Hardware" on Bailey Avenue selling a snowblower; that he had shot the gun in the air two or three times to scare Frazier and Stallworth because they were shooting at him; that the gun was loaded with number eight buckshot that could not kill anybody; that if Frazier was shot with number eight buckshot, then Petitioner was the person who shot him; that there must have been a shoot-out after Petitioner left; that Petitioner did not shoot Frazier, but that someone on Orange Street shot Frazier; that he had a shotgun in the car because he had gone target shooting that morning. T.T. 364-65, 366-70, 392, 420, 426-27, 432, 481.

On July 8, 1999, pre-trial Huntley*fn1 and Wade*fn2 hearings were held and the defense motions to suppress statements*fn3 made by Petitioner to police were denied. Decision and Order of the Erie County Supreme Court (Dec. and Ord.) 11/18/99.

A jury trial was held from March 27, 2000 to April 10, 2000 resulting in Petitioner being found guilty of all counts of the indictment.

During the trial, the prosecution presented testimony from three witnesses who lived on or near Ada Place or were in the area when the shooting occurred. T.T. 72-76, 85-94, 152-165. Buffalo Police Department Detectives Phillip Tisdale ("Tisdale") and Robert Chella ("Chella") also testified about the statements made to them at police headquarters by Petitioner after he was arrested. T.T. 349-50, 357-58, 413-429. The prosecution offered evidence of gun powder found on items of clothing collected from Petitioner and Donna after their arrest and from inside the vehicle. The forensic arms expert, Alford Schwoeble ("Schwoeble"), testified, based on his examination of particles recovered from the interior of the vehicle and from Petitioner's and Donna's clothing, that a weapon had been fired within the car. T.T. 596-99.

The defense offered the testimony of three witnesses at trial, two of which provided alibi testimony. T.T. 813-857.

On May 23, 2000, Petitioner was sentenced as a second felony offender, and was sentenced to the following concurrent terms of imprisonment: twenty-five years to life for murder, three and one half to seven years in prison for criminal possession of a weapon in the third degree, and one year for criminal possession of a weapon in the fourth degree.

Petitioner appealed his judgment of conviction to the Appellate Division, Fourth Department, which was unanimously affirmed on March 21, 2003. People v. Johnson, 303 A.D.2d 967 (4th Dept 2003). Leave to appeal to the New York State Court of Appeals was denied on July 2, 2003. People v. Johnson, 100 N.Y.2d 583 (N.Y. 2003). This habeas petition followed*fn4 .

III. General Principles Applicable to Habeas Review

A. The AEDPA Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).

A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id.

This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).

Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state court's findings "will not be overturned on factual grounds ...

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