The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Sharrowl Davis ("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 28, 2001, in New York State, Supreme Court, Monroe County, convicting him, after a jury trial, of two counts of Murder in the Second Degree (N.Y. Penal Law ("Penal Law") § 125.25, ), and two counts of Robbery in the First Degree (Penal Law § 160.15).
For the reasons stated below, the petition is denied.
II. Factual Background and Procedural History
Petitioner's conviction arises out of an incident that occurred on July 17, 2000 in Chili, New York, wherein Petitioner robbed, shot, and killed Phillip Skellen ("Skellen" or "the victim") and robbed Robert Lee ("Lee").
On the day of the incident, Petitioner spoke with his girlfriend, seventeen-year-old Simone Miller ("Miller"), by phone and arranged to travel from Rochester to her apartment in Chili, New York. Trial Transcript [T.T.] 538-544, 696-98.
While at Miller's apartment, Miller, Petitioner, and Miller's friend, fifteen year-old Ashley Palmer ("Palmer"), socialized and consumed alcohol. At some point, Petitioner asked Miller where he could procure some marijuana. Miller called Lee, an acquaintance who lived a block away from her. At approximately 7:00 p.m., Lee, along with his friend Skellen, arrived at Miller's apartment with a plastic bag full of marijuana. Lee weighed and sold a quarter ounce of the marijuana to Petitioner for $25. T.T. 544-547, 629-32, 698-701.
Shortly thereafter, Petitioner asked if Skellen would drive him home if Petitioner paid for the gas. Skellen agreed, and the price of the gas was set at $3. Lee got into the front passenger seat of Skellen's Buick, placing the remaining stash of marijuana underneath the seat. Miller, Palmer, and Petitioner got into the backseat. Along the way, they stopped at a convenience store on Chili Avenue where Lee purchased two cigarettes, which they hollowed out and filled with marijuana. They then all shared the marijuana "blunt." T.T. 548-553, 566, 633-637, 701-703.
Skillen continued driving down Chili Avenue until it intersected with Main Street. At that point, Petitioner directed Skellen to turn left onto Brown Street and then make a left turn onto Eddy Street, where he then directed Skellen to stop at the second house from the corner, behind a parked van. Petitioner got out of the vehicle and indicated that he would be right back with the gas money. T.T. 553-555, 637-638, 703-04.
Petitioner went around the side of an abandoned house and returned several minutes later with a rifle, which he pointed through the front passenger window at Skellen. Lee heard what sounded like a gun being cocked as Petitioner "pulled something back on the rifle." Petitioner ordered Skellen to turn off the ignition and to hand over his valuables. When he did not do so, Petitioner shot Skellen in the chest. T.T. 557-558, 639-642, 682-683, 705-606. Skellen, after having been shot, yelled reactively and then turned off the ignition. Petitioner then reached into the vehicle and grabbed Lee's necklace and Skellen's necklace, and took the marijuana from underneath the front seat of the vehicle. Skellen then gave Petitioner his wallet. Petitioner ordered Lee out of the car where he searched through his pockets. Before Petitioner fled into the hedges behind the abandoned house, he warned Miller and Palmer that he would kill them if they said anything. T.T. 558-560, 564, 641, 643, 707-709.
After Petitioner left, Lee ran to a pharmacy and called 911. Palmer and Miller both fled the scene. T.T. 569-750, 645-646, 709-711.
Police Officer David Briganti, who was stationed nearby, responded to the call, and Lee brought him to the car where Skellen was slumped motionless in the driver's seat. An investigator for the Medical Examiner's Office arrived a while later, pronounced Skellen dead, and noted a gunshot wound to the chest from the right side. T.T. 777-778. The autopsy confirmed that the gunshot wound was the cause of death. Petitioner's fingerprints were recovered from the trunk and the inside handle on the left passenger side of the vehicle. T.T. 766-769. Petitioner was arrested about six weeks later. T.T. 932-933.
A jury trial was conducted from January 16, 2001 until January 22, 2001, resulting in Petitioner being found guilty of two counts of murder in the second degree and two counts of robbery in the first degree. On February 27, 2001, he was sentenced to twenty years to life on each of the murder charges, seven years for the robbery charge related to Skellen, and five years for the robbery charge related to Lee. The sentences were directed to run concurrently. Sentencing Minutes [S.M.] 27.
Petitioner appealed his judgment of conviction to the Appellate Division, Fourth Department on the following grounds: (1) prosecutorial misconduct; (2) exclusion from a material stage of the proceedings; (3) insufficiency of the evidence related to the depraved indifference murder conviction; and (4) ineffective assistance of trial counsel on various grounds. The Appellate Division, Fourth Department unanimously affirmed the judgment of conviction on July 3, 2003. People v. Davis, 307 A.D.2d 722 (4th Dep't 2003). Leave to appeal to the New York Court of Appeals was denied on September 18, 2003. People v. Davis, 100 N.Y.2d 619 (2003).
On August 3, 2004, Petitioner filed a motion with the Supreme Court, Monroe County to vacate the judgment of conviction pursuant to New York Criminal Procedure Law ("CPL") § 440.10 on the following two grounds: (1) juror misconduct; and (2) ineffective assistance of trial counsel for failure to notify the trial court of the juror misconduct. The Supreme Court, Monroe County denied Petitioner's motion on state procedural grounds on April 15, 2005. See Decision & Order of the Supreme Court, Monroe County, Indictment No. 2000-0449, dated April 15, 2005. Petitioner appealed the denial, which was denied by the Appellate Division, Fourth Department on January 4, 2006. See Decision of the Appellate Division, Fourth Department, Indictment No. 2000-0449, dated January 4, 2006.
On or about May 3, 2006, Petitioner filed a second CPL § 440.10 motion, which was denied by the Supreme Court, Monroe County, on state procedural grounds. See Order of the Supreme Court, Monroe County, Indictment No. 2000-0449, dated October 6, 2006. Petitioner did not appeal the denial.
On or about October 27, 2006, Petitioner filed the instant habeas corpus petition, wherein he seeks relief on the following grounds: (1) insufficiency of the evidence related to the murder charges; (2) ineffective assistance of trial counsel for failing to properly advise Petitioner of his right to testify at trial; (3) juror misconduct/ineffective assistance of trial counsel for failing to notify the trial court of juror misconduct; (4) exclusion from material stages of trial; (5) prosecutorial misconduct for improper comments made on summation.
On or about September 4, 2007, Petitioner filed a motion with this Court to stay the habeas petition so that he could return to state court to exhaust additional claims, including an ineffective assistance of appellate counsel claim. See Petitioner's Motion to Stay the Habeas Petition (Docket #16). Before the Court ruled on the motion, Petitioner filed an application for coram nobis with the Appellate Division, Fourth Department, which was summarily denied on October 3, 2008. See Decision of the Appellate Division, Fourth Department, Indictment No. 449/00, dated October 3, 2008. By this Decision and Order, Petitioner's Motion to Stay is denied as moot, and the ineffective assistance of appellate counsel claim is addressed herein.
On or about March 28, 2008, Petitioner filed a third CPL § 440.10 motion, which was denied by the Supreme Court, Monroe County, on state procedural grounds. See Order of the Supreme Court, Monroe County, Indictment No. ...