The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Micaiah Allen ("petitioner") filed this timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction of Attempted Murder in the Second Degree (N.Y. Penal L. § 125.25; 110.00)); Assault in the First Degree (Penal L. § 120.10); Criminal Possession of a Weapon in the Second Degree (former Penal L. § 265.03); and Criminal Possession of a Weapon in the Third Degree (Penal L. § 265.02). Petitioner was convicted following a jury trial before Justice Richard Kloch in Erie County Supreme Court on July 17, 2003. He was subsequently sentenced to concurrent terms of imprisonment, the longest of which is twenty-five years with five years of post-release supervision. Sentencing Mins. 21.
II. Factual Background and Procedural History
1. Testimony of Nicomy Welch
On the evening of May 20, 2002, Nicomy Welch ("Welch") was picked up by Kareem Kirkland ("Kirkland" or "the victim"), Ernest Peace ("Peace") and his girlfriend, Glenese Hart ("Hart"). The group planned on just "chill[ing] out" that night. Welch had met Kirkland the night before at a club in Buffalo. T. 236-38.*fn1
The group drove in Hart's minivan to the YMCA, where Kirkland was supposed to "meet somebody." Earlier, Welch noticed that the victim was carrying a large sum of cash. T. 239-40. Hart parked across the street from the facility and waited until a white minivan pulled into the parking lot. At that point, Kirkland, said, "there's my man," approached the vehicle, and got inside. T. 240-41. A few minutes later, Welch observed Kirkland jumping out of the van and running. Then, she said, "someone else got out the van, chased him [Kirkland], started shooting at him." T. 243. Several shots were fired, one of which hit Hart's van. T. 252. Welch then watched petitioner get into the white minivan and flee the YMCA parking lot. T. 246. She did not see anyone else in the van except petitioner. T. 250.
Welch, Hart, and Peace drove out of the parking lot, drove around the block, and returned to the YMCA. T. 248-50. When they returned, they saw that Kirkland was badly injured. Welch got out to assist him, because he was "moving around" and "frantic". At that time, Buffalo Police Officers had arrived. T. 250.
Welch gave a description of petitioner to the police, including his height, build, and skin complexion. She also recalled that he was wearing a green and dark-colored hooded sweatshirt, and light jeans. T. 255. Welch was then taken to police headquarters to provide a statement. While she was approaching the elevator with an officer, she saw petitioner in handcuffs. Startled, Welch told the accompanying police officer that she just saw the shooter, who continued to escort her to the Homicide Office. Welch was not asked to identify the petitioner. T. 259-60.
2. Testimony of Officer Molly Sanford
Police Officer Molly Sanford ("Sanford") was on duty the night of May 20, 2002, when she received a call of a person shot at the YMCA at East Ferry Street and Jefferson Avenue in the City of Buffalo. T. 187-88. Sanford headed to the shooting location with her lights and siren on. While en route, she received a call that a white Dodge Caravan had just left the scene. T. 188-89. When she entered the intersection at Fillmore Avenue and Best Street, her patrol car was nearly hit by a minivan that matched the description of the getaway vehicle. T. 189. The white minivan then took off, speeding down the street at 50-60 miles per hour, while Sanford followed with her lights and siren on. T. 190-91. The van drove through stop signs and red lights for several blocks, ending at a dead end. After he stopped the vehicle, petitioner exited the car and took a few quick steps. T. 192-94. He was then apprehended. It took five officers to handcuff petitioner. T. 195.
3. Petitioner's Statement to Police
While at the police station, a detective spoke with petitioner, and read him his Miranda rights from a card. Petitioner said that he understood each of his rights, and initialed each line and then signed the Miranda card. T. 471-72. Petitioner said that he wanted to talk to police, however, when asked whether he knew anything about the shooting on East Ferry Street, petitioner denied any knowledge of the incident. T. 473-474. He then told the officer that he wanted to "be alone . . . to think things over." T. 474. The detective left the interview room and returned approximately fifteen minutes later. The detective told petitioner that he had been positively identified as the shooter of Kirkland. T. 474-76. At that time, the detective asked if petitioner would submit to a gunshot residue test. Although petitioner initially assented, he refused to sign the consent form, stating "I only have one thing to say. It was self defense, and now I'm ready to go to my cell." T. 476-78.
Petitioner appealed the judgment of conviction, which was unanimously affirmed by the Appellate Division, Fourth Department. People v. Allen, 30 A.D.3d 1106 (4th Dept. 2006); lv. denied, 7 N.Y.3d 809 (2006). On direct appeal, petitioner presented four issues: (1) the trial court erred in not suppressing the identification testimony; (2) the verdict was against the weight of the evidence; (3) the court erred in not allowing petitioner to call a witness and denied petitioner the opportunity to testify on his own behalf; and (4) the sentence was harsh and excessive. See Respondent's Exhibits ("Ex.") B. Petitioner also filed a pro se brief, raising two additional claims: (1) the prosecution failed to disclose Brady material; and (2) the testimony of the victim's mother was prejudicial. Ex. B.
Petitioner filed a timely habeas petitioner pursuant to 28 U.S.C. § 2254 with this Court, raising five of the six issues presented on direct appeal. (Dkt. #1). For the reasons that follow, ...