The opinion of the court was delivered by: Seybert, District Judge
Pending before the Court is Petitioner Johnny Ayala's application for writ of habeas corpus, pursuant to 28 U.S.C. § 2254. For the reasons stated below, Petitioner's application is denied.
On March 19, 1999, at about 10:05 a.m., Thomas Delouker ("Delouker") arrived at Frank's Pigeon Store on Route 111 in Central Islip, Suffolk County, New York. As a frequent customer, Mr. Delouker found it odd that, given the time of day, the gates in front of the store were down, but the store owner's car was parked in front. Mr. Delouker waited fifteen minutes before leaving.
(Trial Tr. 82-86, March 20, 2000.) Less than an hour later, Delouker, who happened to be a volunteer fire fighter, received a call about a fire; however, Delouker did not respond to the fire because he had to leave for work. Delouker later learned that the fire was at Frank's Pigeon Store.
Robert Miller, Chief of the Central Islip Fire Department, arrived at the scene of the fire at Frank's Pigeon Store at about 10:36 a.m. (Id. at 105.) The front gates of the store were down, but the rear door was open. (Id. at 112.) Suffolk County Police Officer Christopher Talt also responded to the fire. Officer Talt testified that he immediately suspected that the fire was suspicious in nature. The Fire Department notified the Arson Squad of the Police Department. At some point during the search, Edward Freudenberg, a volunteer firefighter, found the body of Thomas Serra, the owner of the store, about four feet in from the rear door. (Id. at 121.)
Suffolk County Detective Robert Ryan, assigned to the Arson Squad, testified at trial that he noticed a strong odor of gasoline near Mr. Serra's body. Detective Ryan also noticed that some of the cages in the front of the building were empty and there was no cash register in the store. (Id. at 233.) After examining the electrical circuit box in the store, Detective Ryan determined that the fire likely did not start from an electrical problem. When a medical examiner arrived at the scene and turned over Mr. Serra's body, Detective Ryan noticed that the floor underneath the body was not as burned as the surrounding area. Thereafter, the Suffolk County Police Department submitted samples of ash collected near the body as well as the remnant of the victim's clothing to the Trace Evidence Section of the Suffolk County Crime Lab; Margaret Meldon-Sharpe, a forensic scientist with the Crime Lab, later verified that the samples contained traces of gasoline. An autopsy later revealed two blunt injuries to the back of Mr. Serra's head and that he died prior to the start of the fire.
The Suffolk County Police Department later learned that multiple bags of Circle K feed had been stolen from Frank's Pigeon Store and brought for sale in Billy's Pet Shop, owned by William Schmierer ("Schmierer"). Further investigation led to Samuel "Juanito" Santalis ("Santalis") and Petitioner's identification as suspects involved in selling the feed to Schmierer. On March 29, 1999, Detective Douglas McGovern arrested Petitioner and brought him back to the Homicide Squad for questioning. At approximately 8:35 p.m., Detective McGovern read Petitioner his Miranda rights. After reading Petitioner his rights, Detective McGovern asked Petitioner if he was willing to talk to the detectives without an attorney; Petitioner answered yes.
At first, Petitioner denied any involvement with the sale of the stolen feed and Mr. Serra's murder. However, Petitioner's answer changed after Detective McGovern showed Petitioner, through a one-way mirror, that other detective were interviewing Santalis in another room. Petitioner then stated that he "never wanted to snitch anybody out." (Tr. March 23, 2000 at 59.) Petitioner began to cry and told Detective McGovern that someone named "Tito" assisted Santalis in the robbery and murder. At 10:00 p.m., the detective took a break from questioning. The detectives resumed questioning at approximately 10:26 p.m, after Petitioner had eaten a slice of pizza.
Shortly after midnight, the officers escorted Petitioner to the bathroom. Thereafter, questioning again resumed. At this point, Petitioner's story changed once more. At approximately 12:15 a.m., Petitioner admitted his involvement in the murder. Initially, Petitioner stated that he hit the victim with a piece of wood after Tito had hit the victim repeatedly. Thereafter, Petitioner and Santalis went to a nearby gas station to purchase gasoline. Santalis poured the gasoline around the store, and Petitioner lit the gasoline with a match. Petitioner later changed his story and stated that Santalis hit the victim with a pipe and took $340 from the victim's pocket.
Finally, at some point after 1:00 a.m., Petitioner admitted that he had fabricated the existence of "Tito" and that he and Santalis had acted alone. Petitioner stated that he and Santalis had gone to Frank's, where Petitioner hit Mr. Serra twice over the head with a pipe and told Santalis to hit the victim again if he got up. The detectives thereafter took a three-page written statement from Petitioner. In the statement, Petitioner stated that he decided to rob the store because he "needed money." The statement read, in pertinent part,
On Thursday, March 18th, I went to Junito's house in the morning. His niece, Wanda, told me he was still sleeping and that I should come back in an hour. I didn't go back that day. On Friday, March 19th, 1999, I took my wife to work, and then went to Junito's house again. I asked if he was ready to make some money and he said, 'Yes.' He put his shoes on and brushed his teeth. We drove to Frank's on Islip Avenue in Central Islip in Junito's car. I had a pipe with me that was three or four feet long. I told Junito I was going to hit the owner, Tom, with the pipe. We parked the car and went in the front door. I was holding the pipe at my side. Junito walked in behind me. Tommy said, 'What are you doing around here, Scrub?' He always called me names because he knows I used to steal birds from him.
When Tommy turned around, I hit him on the head with the pipe. I hit him twice and he went down. I gave the pipe to Junito and I told him to hit Tommy again if he got up. I told Junito to get his money. He took the money and we each got 340 dollars. I went out the front door and closed the grate and locked it. I walked around to the back of the gas station where the car was and we drove to Cherry Street in Central Islip to get my brother's van.
On the way back to Tom's store, we stopped at the gas station across the street and bought two dollars worth of gas. We put the gas in a bucket, in a bucket I had with me in the van. I drove to the back of the store and parked near the back door. We loaded 68 bags of feed and 13 bags of grit into the van. We also took some nesting bowls, trap doors, year bands, the cash register and three exotic birds.
I told Junito that was enough feed because it was getting too heavy for the van. Junito poured the gas on the floor. It was less than a foot away from Tommy's body. I put some paper bags on the metal wagon and lit the bags with a match. We drove in the van through the back streets and came out on Carleton Avenue in Central Islip. We were going to Billy's new pet store on Connetquot Avenue to sell him the feed and the other stuff.
When I turned on to Carleton Avenue, we met my brother, Adolfo. He wanted to know what I was doing with his van. I told him we were taking feed to Billy's. He said he was -- he would follow us in his car. When we got to Billy's, I told him he could buy the feed for five dollars a bag. He knew it came from Tommy's store because he saw the circle with the K inside on the tag on the bags.
Billy said he would give us four dollars each, but we would have to take it to his house. I said, okay. And Billy sent his son, Tommy, Junito, my brother, Adolfo and me unloaded the feed and put it into the basement of Billy's house. We also put the trap doors and the cash register in the basement.
When we were finished, I drove back to Junito's house to get my car. Junito drove the van to Cherry Street. I forgot to say that Billy also knew that the exotic birds came from Tommy's store.
On March 28, 2000, a jury found Petitioner guilty of two counts of Murder in the Second Degree and one count of Arson in the Third Degree. On April 26, 2000, Petitioner was sentenced, as a prior felony offender, to concurrent terms of twenty-five years to life for his murder convictions, and a consecutive term of seven and one-half to fifteen years for the Arson conviction.
On appeal, Petitioner argued that: (1) the prosecution engaged in misconduct during summation; (2) there was insufficient evidence to support his conviction; (3) the trial court erred in instructing the jury; and (4) the sentence was excessive. On February 17, 2004, the Appellate Division, Second Department affirmed Petitioner's conviction. The state court found that Petitioner had not preserved for appellate review his objection to the prosecution's remarks, and in any event, the remarks did not require reversal, there was sufficient evidence to support the conviction, and Petitioner's remaining contentions were either unpreserved for appellate review or without merit. See People v. Ayala, 771 N.Y.S.2d ...