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Wearen v. Conway

March 5, 2010

YANCY WEAREN, #02-B-0627, PETITIONER,
v.
JAMES T. CONWAY, SUPERINTENDENT OF ATTICA CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

ORDER

I. Introduction

Pro se petitioner Yancy Wearen ("petitioner") filed this timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction of Murder in the Second Degree (N.Y. Penal L. § 125.25[1]; 20.00) on March 25, 2002 in Monroe County Court following a jury trial before Judge Frank Geraci.

II. Factual Background and Procedural History

Just before noon on Friday, October 6, 2000, petitioner and co-defendant, Roderick Johnson ("Johnson"), repeatedly shot Felton Henderson ("the victim"), causing his death, at Ravine Avenue and Tacoma Street in Rochester, New York. Several eyewitnesses were present at the scene, who provided descriptions of two or three persons they thought had been involved in the shooting.

Reports of a shooting on Tacoma Street, along with a description of three black males and their clothing (one wearing a "silver bubble coat", one wearing a red coat, and one wearing a flannel shirt) was communicated over police radio. Rochester Police Officer Michael Marcano ("Marcano") was working at a truancy center on Backus Street when he observed three black males who matched the broadcast description walking southbound through an open field. Marcano advised the dispatcher that he had three suspects in sight. When Marcano approached the youths, they ran. T. 788-796.*fn1

Shortly thereafter, petitioner was seized at 41 Phelps Avenue, where he was found watching television with another young man.*fn2 T. 900-01. While escorting petitioner out of the house, Marcano observed a "silver grayish jacket, puffy jacket," the same jacket he previously saw one of the suspects wearing. T. 798. Petitioner acknowledged that it was his jacket, and Marcano handed it to him, remarking that the jacket felt "cold". Petitioner responded, "well, it's cold outside." T. 799.

At the scene of the shooting, police recovered shell casings from weapons of two different calibers, indicating that two guns were used in the shooting. T. 1086-87. An autopsy performed on the victim indicated four entrance wounds and one exit wound. Fragments extracted from the victim's body were then sent to the Monroe County Public Safety Laboratory for examination, which concluded that the fragments came from separate weapons. T. 1196-1203, 1210-1215.

A jury found petitioner and Johnson guilty of intentional murder. Petitioner was subsequently sentenced to twenty-five years to life imprisonment. Sentencing Mins. 6-8.

Petitioner appealed the judgment of conviction to the Appellate Division, Fourth Department, raising the following issues: (1) a Miranda violation; (2) the verdict was against the weight of the evidence and the conviction was not supported by legally sufficient evidence; (3) ineffective assistance of trial counsel; and (4) harsh and excessive sentence. In a pro se supplemental brief, petitioner argued that (1) the evidence was insufficient to support a conviction for intentional murder under an accomplice liability theory; (2) ineffective assistance of trial counsel due to "cumulative errors"; and (3) the trial court abused its discretion in failing to give a circumstantial evidence charge. See Respondent's Exhibits ("Ex.") H, L. Petitioner's judgment of conviction was unanimously affirmed. People v. Wearen, 19 A.D.3d 1133 (4th Dept. 2005); lv. denied, 5 N.Y.3d 834 (2005).

Petitioner then made an application for a writ of error coram nobis, alleging ineffective assistance of appellate counsel, see Ex. Q, which was denied by the Fourth Department. People v. Wearen, 32 A.D.3d 1366 (4th Dept. 2006); lv. denied, 8 N.Y.3d 850 (2007).

Petitioner then brought the instant petition for habeas corpus, alleging seven grounds*fn3 for relief. (Dkt. #1). He later provided the Court with a Traverse detailing those claims. (Dkt. #14). For the reasons that follow, the petition is denied and the action is dismissed.

III. Discussion

A. General Principles Applicable to Habeas Review

1. Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing ...


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