The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se petitioner Rasheem Harris ("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 February 14, 2001, in New York State, County Court, Ontario County, convicting him, after a jury trial, of two counts of Robbery in the First Degree (N.Y. Penal Law ("Penal Law") § 160.15, ) and one count of Assault in the First Degree (Penal Law § 120.10).
For the reasons stated below, the petition is denied.
II. Factual Background and Procedural History
On the evening of May 24, 2000, Petitioner, Sincere Homes, Bryon Russ ("Russ"), Rasheen Madison ("Madison), and T'Jay Dessassure ("Dessassure") met up at a bar in Geneva, New York. Trial Transcript [T.T.] 61, 117. At some point thereafter, the five men left Geneva in a tan Dodge minivan driven by Russ. The five individuals were headed to Rochester. T.T. 64-65. As they were headed out of Geneva, Russ stopped the car on a back road. T.T. 67-69, 123. Russ pulled out a .25 caliber handgun and pointed it at Homes. T.T. 69, 117, 124. As he did so, Russ indicated to Homes that Homes was "0-32"*fn1 because he snitched on Russ's friend. Russ, Petitioner, and Madison robbed Homes and took his jacket, cell phone, and $70 in cash. T.T. 70-72, 86, 125-27. Russ then ordered Homes out of the car and told him to lie on the ground. Believing he was going to be executed, Homes began to scuffle with Petitioner and Madison. T.T. 72-75. Russ then shot at Homes with the .25 caliber handgun, causing a bullet to pass through Petitioner's thumb and ultimately lodging in Homes's leg. T.T. 76, 129. Russ dropped the gun and Homes ran into the woods, bleeding from his leg wound. He managed to run to a nearby house where he called for help and then collapsed in a puddle of blood on the front porch. T.T. 77-78, 128. The house's occupant, Robert Kleman ("Kleman"), called for the police and an ambulance. T.T. 37-39, 79. When the police arrived, Homes told police that he was shot by one of three or four black males in a tan, brown or beige SUV. T.T. 47. That information was broadcast to law enforcement, and moments later, police stopped a vehicle fitting that description. T.T. 160-62. The police removed all four occupants from the vehicle. T.T. 162-63, 176, 182. The police observed a white, bloody towel inside the vehicle, and smelled the odor of marijuana.
T.T. 176, 184. Petitioner was bleeding from his hand and had a hole in his thumb. T.T. 167. The four occupants were then taken to the Geneva Police Department for questioning and the police sought and obtained a search warrant for the vehicle. T.T. 190-91. Police discovered the following items during the search: a bloody towel, a .25 caliber handgun and live .25 round, and some of the victim's personal belongings. T.T. 202-03.
At the police station, after being advised of his Miranda rights, Petitioner twice denied any knowledge or involvement in the shooting. Petitioner also claimed he had received the injury to his thumb by cutting it on his baby's crib. T.T. 199-200, 221, 243. Subsequently, Petitioner gave an oral and written statement to police, wherein he admitted being in the vehicle with Homes and the other men outside of Geneva, and that he was shot in the hand during a scuffle between Russ and Homes. T.T. 245.
Following his indictment, Petitioner filed a pro se motion seeking to dismiss the indictment on the ground that he was prevented by trial counsel and the prosecutor from testifying before the grand jury. See Petitioner's Pro Se Motion to Dismiss Indictment of September 9, 2000. The Ontario County Court denied Petitioner's motion. See Decision of the Ontario County Court of October 5, 2000.
On October 18, 2000 and November 15, 2000, a two-day suppression hearing was conducted, wherein Petitioner moved to suppress the items recovered from the van and his statements to police. At the conclusion of the hearing, the Ontario County Court found that Petitioner's statements were made after Miranda warnings were administered and that they were voluntary and admissible. Hearing Minutes [H.M.] 115, 120-22. The court also found that the search warrant was properly issued based on sufficient probable cause, the execution of the warrant was proper, and the items recovered from the vehicle were admissible. H.M. 115-16, 123. The court also concluded that there had been reasonable suspicion to stop the van and that Petitioner, as a passenger, lacked standing to challenge the stop. H.M. 117, 122.
A trial was held in the Ontario County Court on January 22, 2001, which resulted in a hung jury. On January 29, 2001, Petitioner's re-trial commenced, and he was found guilty on all counts of the indictment. Petitioner was adjudicated a second felony offender and was sentenced to three concurrent, determinate terms of nineteen years imprisonment.
Petitioner appealed his judgment of conviction to the Appellate Division, Fourth Department, which was unanimously affirmed on March 21, 2003.*fn2 People v. Harris, 303 A.D.2d 1026 (4th Dep't. 2003). Leave to appeal to the New York State Court of Appeals was denied on August 8, 2003. People v. Harris, 100 N.Y.2d 594 (2003).
On or about October 11, 2003, Petitioner sought to vacate his conviction pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10.*fn3 The motion was denied on state procedural grounds for failure to raise the issue on direct appeal. See Decision and Order of the Ontario County Court of December 8, 2003. Petitioner did not seek leave to appeal the denial of the motion to vacate to the Appellate Division, Fourth Department.
On or about October 8, 2004, Petitioner filed a second motion to vacate his conviction pursuant to C.P.L. § 440.10.*fn4 The motion was denied on state procedural grounds for failure to raise the issues on direct appeal. See Decision and Order of the Ontario County Court of December 8, 2004. Petitioner sought leave to appeal the denial, which was denied. See Decision of the Appellate Division, Fourth Department of July 8, 2005.
On or about July 14, 2005, Petitioner filed a motion for a writ of error coram nobis, which was denied on September 30, 2005. People v. Harris, 21 A.D.3d 1443 (4th Dep't. 2005). The New York Court of Appeals denied leave to appeal on January 30, 2006. People v. Harris, 6 N.Y.3d 776 (2006).
This habeas petition followed.
III. General Principles Applicable to ...