The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner DeMario Moye ("Moye" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his custody resulting from a judgment convicting him, following a jury trial in Erie County Court, of attempted assault in the first degree and criminal possession of a weapon in the second degree.
The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
II. Factual Background and Procedural History
Moye originally was indicted on five criminal counts: attempted murder (N.Y. Penal Law ("P.L.") §§ 110.00, 125.25), attempted assault in the first degree (P.L. §§ 110.00, 120.10(1)), criminal possession of a weapon in the second degree (P.L. § 265.03(2)), and two counts of endangering the welfare of a child (P.L. § 260.10(1). The charges stemmed from Moye's shooting of Robert Staples ("Staples" or "the victim") on August 22, 2001, while Staples was sitting on his porch with his fiancee, Elizabeth Moore ("Moore"), and their twin sons.
Moore and Staples testified that at about 6:30 p.m., petitioner rode up on his bicycle, stopped on the street directly in front of the porch, directed an epithet at Staples and challenged Staples to a fight. T.51-54, 71-75.*fn1 Staples recognized petitioner from previous occasions on which petitioner had stared at him from inside a passing car. T.77-78. Staples began to unbutton his shirt and said, "give me a minute, I'm going to walk up to the corner, whatever you want to do we can do it when we get to the corner, just let me get my kids out of the way." T.80-81. Staples then told Moore to take the children inside the house. T.82.
Staples' fiancee, Moore, testified that Staples responded to petitioner's threat by saying "I don't even know you," and suggesting that he and petitioner "go down to the corner and talk about this." T.55. Moore asked, "Is this all over a girl?" T.82. Petitioner answered, "No," and directed the same epithet at Staples and insisted that he knew Staples. T.82-83.
Moore testified that petitioner, still seated on his bike, then pulled out a gun and shot at Staples. T.56-57. Moore grabbed the children and ran into the house, where she heard two more shots. T.57. Staples testified that as he started to come down off the porch, Moore grabbed the twins and went into the house, at which point petitioner pulled a small black revolver from his back pocket area and fired it straight at Staples. T.83-85, 102-103. Staples immediately ran into the house and slammed the door. T.85-87. Petitioner then rode away on his bicycle. T.87.
With respect to motive, Staples testified that defendant might have been angry because Staples had sex several times with a girl named "Net" from Guilford Street. T.89-90. Staples also said that he had been offered money on more than five occasions to "walk away" from the case.
T.90-92. On one occasion, petitioner's brother offered the money and on another occasion, petitioner's brother was present when money was offered to Staples. T.92-93.
Other prosecution witnesses included Thomas Hall, who testified that about a week before the shooting, petitioner had approached him and asked whether Staples was Hall's cousin.
T.112-13. Theresa Gilliam, who lived next door to Staples and Moore, was an eyewitness to the shooting. She saw Staples arguing with an individual on a bicycle who subsequently shot a gun at Staples and rode away. T.116-18.
Finally, the prosecution called several police witnesses. Officers Kevin Kennedy and Thomas McCarthy responded to a call of shots fired where they found that Staples' house had recently been hit by a round of gunfire. T.128-29, 172-74. After obtaining a description of the shooter, the officers named petitioner as the primary suspect. T.125, 132, 174. The next day, as Officers Kennedy and McCarthy were driving to petitioner's house to arrest him and en route, they drove past an individual on a bicycle whom they thought was petitioner. T.133, 175-76. When they drove by petitioner's house, they observed the bicycle, but did not see petitioner.
T.134, 177. Five to ten minutes later, the officers returned to petitioner's house; he was at home and they arrested him. T.134-35, 177-78.
According to the officers, petitioner appeared "nervous," "excited," and "agitated."
T.139. He was talking "a lot" and asking numerous questions. T.139. In particular, petitioner informed the officers that he had a "minor beef" with a person named "Rob," whom defendant caught in bed having sex with petitioner's girlfriend, "Antoinette." T.140, 182. Petitioner admitted this during his testimony at trial. However, according to petitioner, he would not have shot "Rob" over the incident because it was not a "big deal," given that "everybody fucks everybody else's chick." T.140. Petitioner also told the police that he had injured his foot playing basketball. T.146-47, 184-85. He mentioned that he had "run-ins" with law enforcement in Florida, and asked the police whether there would be a plea deal available if he were to disclose the location of the gun used in the shooting. T.148. Petitioner questioned why the police had not arrested him when they drove by him earlier while he was on his bicycle. T.141-42, 182.
Petitioner subsequently gave a written statement to Detective Gary Teague. In the statement, petitioner related that on the night of the shooting, he had been playing basketball with his brother and cousin from 3:30 p.m. until he hurt his foot, then he sat on his grandmother's porch until 1:00 a.m. See T.160-67. During that time, petitioner claimed he was talking with relatives and "playing numbers". T.167. Petitioner denied owning a bicycle or a handgun.
T.167. He admitted that he had a "problem" with someone named Robert, but claimed that it was not Robert Staples. He also stated that the problem was not big enough to be a "killing problem".
The defense presented several alibi witnesses. Petitioner's sister Taneisha Neely testified that said that she was with petitioner on the porch from 5:30 p.m. until 8:00 p.m. T.212-13. Torrie Carmichael, a cousin of petitioner, testified that he thought he was with petitioner on the day of the shooting, but he was unable to say for certain. T.238-41. Fredericka Moye, also a cousin of defendant, testified she was in petitioner's company from 5:45 p.m. until 9:00 p.m.
Petitioner testified in his own behalf consistently with his written statement to police that he was talking with his friends and shooting basketball from 3:30 p.m. until 4:30 or 5:30 p.m.
T.289-91. From that time until 1 a.m., petitioner testified, he was hanging out on the porch of his grandmother's house. T.291. Petitioner claimed that he had sustained an injury to his foot which prevented him from riding a bicycle. T.299. Petitioner acknowledged that he found someone named Robert in bed with his girlfriend Antoinette, but denied that it was Staples.
The jury returned a verdict convicting petitioner of attempted first degree assault. Moye was sentenced to concurrent determinate prison terms of eight years each on the attempted assault and criminal possession convictions, to be followed by five years of post-release supervision.
On direct appeal to the Appellate Division, Fourth Department, petitioner was represented by new appellate counsel, who argued that all of his statements to the police were involuntary, that he did not voluntarily waive his rights under Miranda v. Arizona, 384 U.S. 436 (1966); that trial counsel provided less than meaningful representation, that the verdicts were based on insufficient evidence and were against the weight of the evidence, that the defense was entitled to a missing witness instruction as to Larry Harrison, and that the sentence was unduly harsh and severe. Petitioner's conviction was unanimously affirmed. People v. Moye, 11 A.D.3d 1027 (App. Div. 4th Dept. 2004). The New York Court of Appeals denied leave on December 31, 2004. People v. Moye, 4 N.Y.3d 746 (N.Y. 2004).
In his timely-filed habeas petition, petitioner has asserted the following four claims for relief: (1) the failure to suppress his oral and written statements was erroneous; (2) trial counsel provided ineffective assistance; (3) the evidence was legally insufficient to support either conviction; and (4) the trial court erroneously denied the request for a missing witness charge.
Respondent answered the petition, asserting the affirmative defense of procedural default with regard to petitioner's challenge to the legal sufficiency of the evidence. Respondent argues that, in any event, none of Moye's claims merit habeas relief.
For the reasons that follow, I find that a writ of habeas corpus is not warranted and ...