The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Antonio Harris ("petitioner") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction of two counts of Murder in the First Degree (N.Y. Penal Law §§ 125.25, 20.00); Attempted Robbery in the First Degree (Penal Law §§ 110.00, 160.15, 20.00); and Burglary in the First Degree (Penal Law §§ 140.30, 20.00). Petitioner was convicted following a jury trial before Justice Robert Noonan in Erie County Supreme Court on October 28, 1999.
II. Factual Background and Procedural History
Petitioner's convictions arose out of an incident that occurred on August 7, 1998, wherein Michael Organek ("Organek" or "the victim") was stabbed in the eye with a hollow metal rod in his North Street apartment in Buffalo, New York, over an unsettled drug debt. The victim died on August 11, 1998 as a result of a severe head injury. T. 448.*fn1
On August 7, 1998, Antonio Harris ("petitioner"), his cousin, Robert Hennegan ("Hennegan"), and acquaintance Anthony Franklin ("Franklin") were summoned to an apartment building at 307 North Street to confront a man that petitioner's other cousin, LaTwett Harris ("Harris"), claimed to have harassed her.*fn2 When petitioner, Franklin, and Hennegan arrived at 307 North Street, Harris and Organek greeted them at the entrance and let them inside the building. Apparently, the victim owed Harris $75 for crack-cocaine she sold him, but did not have the money to pay her. Organek told the men that if they accompanied him to a nearby doughnut shop, he could borrow the money from a friend to pay Harris. T. 363, 480-81. They walked a few blocks to the doughnut shop, where Organek went in to look for his friend, but he returned empty-handed. T. 56-57.
Petitioner, Franklin, Hennegan, Harris and Organek then returned to the North Street apartments, where Organek was going to "get the money" for Harris. T. 482. As the group walked up to the third floor, Franklin asked Organek if he could use his telephone. The victim assented but cautioned that he only wanted one man in the room with him at a time. Regardless, petitioner and Hennegan followed Franklin inside the victim's apartment. T. 60. While Franklin made a phone call, petitioner confronted the victim about the money he owed Harris. When Organek responded that he did not have it, petitioner hit him once, as did either Franklin or Hennegan. T. 62. At that point, the victim started screaming and reached for a meat cleaver on his night stand. Id. Hennegan picked up a metal sweeper, but dropped it amidst the "commotion", and he and petitioner ran out of the room. T. 63. Shortly thereafter, Franklin ran into the hallway and said, "I threw a pole in his eye . . . and it stuck." T. 64. The three men and Harris fled the building and drove to Harris's apartment in Riverside. T. 65.
Petitioner, Hennegan, Franklin, and Harris were all charged with the murder of Michael Organek under accessorial liability and felony murder theories. See Penal Law §§ 125.25, 20.00). Petitioner was the only defendant to proceed to trial, while Harris, Hennegan, and Franklin each pleaded guilty to reduced charges. Hennegan testified as the prosecution's key witness, and petitioner testified in his own behalf.
Petitioner was ultimately convicted of two counts of second-degree murder, and one count each of burglary and attempted robbery. He was sentenced to concurrent, indeterminate terms of imprisonment of twenty years to life on each murder conviction, 12 1/2 to fifteen years for the burglary conviction, and 7 1/2 to 15 years for the attempted robbery. S. 8-9.
Through counsel, petitioner filed a direct appeal to the Appellate Division, Fourth Department, which unanimously affirmed the judgment of conviction. People v. Harris, 1 A.D. 3d 881 (4th Dept. 2003); lv. denied, 2 N.Y.3d 740 (2004).
Petitioner then sought vacatur of his conviction pursuant to New York Crim. Proc. Law ("C.P.L.") § 440.10 on the ground that the prosecution knowingly presented false material evidence at trial. See 440.10 Mot. dated 12/11/2003; Respondent's ("Resp't") Ex. D. The state court denied the claim because petitioner's allegations were contradicted by court record or were not supported by any other evidence. See Memorandum and Order, No. 98-1975-S01, dated 4/28/2004. Petitioner then brought a second § 440.10 motion alleging ineffective assistance of trial counsel. See 440.10 Mot. dated 2/15/2005; Resp't Ex. F. The state court denied that motion as well. See Decision and Order, No. 98-1975-S01, dated 6/8/2005.
Petitioner then brought the instant petition for habeas corpus pursuant to 28 U.S.C. § 2254, raising the following claims for relief: (1) ineffective assistance of trial counsel; (2) prosecutorial misconduct, including Brady and Batson violations; (3) petitioner had established an affirmative defense to felony murder; and (4) evidence was legally insufficient to support the convictions of robbery or burglary. Pet. ¶ 12, Grounds One through Four; Petitioner's ("Pet'r) Mem. of Law (Dkt. ## 1, 21).
The respondent has filed an answer and memorandum of law in opposition to the habeas petition. (Dkt. ## 5, 6). For the reasons that follow, the petition for habeas corpus is denied and the action is dismissed.