The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se petitioner Daniel DeNormand ("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 July 26, 2001, in New York State, Supreme Court, Erie County, convicting him, after a jury trial, of one count of Murder in the Second Degree (N.Y. Penal Law ("Penal Law") §§ 20.00, 125.25) and two counts of Robbery in the First Degree (Penal Law §§ 20.00, 160.15,).
For the reasons stated below, the petition is denied.
II. Factual Background and Procedural History
On March 2, 2000, Petitioner drove a getaway car for two co-defendants who robbed a convenience store located on Seneca Street in Buffalo, New York. Trial Transcript [T.T.] 84. During the course of the robbery, one of the co-defendants fatally shot the store clerk. T.T. 88-89. Petitioner had known his co-defendants for years, and dated the sister of one his co-defendants. T.T. 294.
On the day of the shooting, Petitioner saw one of his co-defendants with a gun. Petitioner handled the gun at that time, as well as the previous day when he fired it. T.T. 292-293. Petitioner drove his co-defendants and another individual to the immediate vicinity of the convenience store. T.T. 288, 292. The store fronted Seneca Street, and was situated between Roanoke and Armin Streets. T.T. 84-85.
Petitioner parked on Roanoke, facing his car away from the store on Seneca Street. T.T. 184-185. Once Petitioner parked the car, his co-defendants got out. The shooter was wearing a sweatshirt with a hat tied around his face, and the other co-defendant was wearing a mask. T.T. 140, 151-153, 159-160. Both the shooter and the other co-defendant were seen peering inside the store by a witness who was passing by. T.T. 132, 154. Both co-defendants were seen turning around and walking to the side of the store. T.T. 133.
Subsequently, the shooter and the other co-defendant entered the store. The shooter stood with his hands outstretched in front of the store clerk, and demanded that the clerk give him all of the money. T.T. 159, 164, 396. The shooter told the other co-defendant to take the money, which was approximately one hundred dollars. T.T. 293. The store clerk was then fatally shot in the face. T.T. 88-89, 557.
After the robbery and shooting, the co-defendants ran towards Petitioner's car. A witness testified that he heard the co-defendants say to Petitioner, "go, go, go." In response, Petitioner began to pull the car away, and the co-defendants jumped into the moving vehicle as it sped away. T.T. 186-187. Petitioner later admitted to police that he drove the car away from the scene of the crime. T.T. 278-279.
After the robbery and shooting, Petitioner and his co-defendants were seen at another convenience store by an individual who knew them and also saw Petitioner's car parked at the convenience store. T.T. 225-228. One of Petitioner's co-defendants told the individual that they had just robbed a convenience store, and that the individual should watch the news that evening. T.T. 225-229, 294. This individual subsequently gave a statement to police which, based on that information, police searched for Petitioner's car, which was found outside the shooter's home. T.T. 231, 269. The police knocked on the door to the home and were given permission to enter by Petitioner's parents. Police found Petitioner and the shooter inside the home. T.T. 270-273. Petitioner gave police written permission to search his car, and they found a shell casing that had been fired from the murder weapon. T.T. 282. Petitioner also gave police a written statement in which he maintained that he was unaware of any plan to commit a robbery. T.T. 278-288, 292, 295. Petitioner then took police to the home of his other co-defendant, who gave the police written permission to search his home. T.T. 325, 339, 368. When asked by police if the co-defendant had any items of evidentiary significance, the co-defendant indicated he had a mask and a sweatshirt, and also told the police that the gun used in the shooting was behind a recycling bin outside his home. T.T. 357-363. Firearms testing confirmed that the gun obtained from the co-defendant was the gun used in killing the convenience store clerk. T.T. 539.
Ultimately, Petitioner and his co-defendants were charged with the robbery and murder of the convenience store clerk. Petitioner and the co-defendant who did not shoot the clerk were tried jointly before a jury from June 4-12, 2001, and Petitioner was found guilty as charged.
Petitioner was represented by the same attorney at trial and on appeal.
Petitioner was sentenced as a second felony offender to an aggregate term of twenty-three years to life to be served consecutively to a sentence imposed on another indictment.
Petitioner appealed his judgment of conviction, which was unanimously affirmed by the Appellate Division, Fourth Department. People v. DeNormand, 1 A.D.3d 1047 (4th Dep't. 2003). Petitioner made leave for application to the New York Court of Appeals, which was denied. People v. DeNormand, 1 N.Y.3d 626 (2004).
Petitioner filed a New York Criminal Procedure Law ("C.P.L.") § 440.10 motion to vacate his judgment of conviction, which was denied by the Erie County Supreme Court. See Memorandum and Order of the Erie County Supreme Court dated December 27, 2004 [Mem. & Ord. 12/27/04]. Petitioner appealed the denial of the motion, which was denied. See Decision of the Appellate Division, Fourth Department dated June 29, 2005.
Petitioner filed a motion for a writ of error coram nobis, which was summarily denied by the Appellate Division, Fourth Department. People v. DeNormand, 20 A.D.3d 947 (4th Dep't. 2005). Petitioner appealed the denial, ...