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Gainey v. Conway

June 21, 2010

LAVOINE GAINEY, PETITIONER,
v.
JAMES T. CONWAY, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se Petitioner Lavoine Gainey ("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 April 25, 2005, in New York State, County Court, Orleans County, convicting him, after a jury trial, of Murder in the Second Degree (N.Y. Penal Law ("Penal Law") § 125.25[1]), Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03 [2]*fn1 ), and Reckless Endangerment in the First Degree (Penal Law § 120.25).

For the reasons stated below, habeas relief is denied and the petition is dismissed.

II. Factual Background and Procedural History

At 2:30 a.m. on July 10, 2004, Petitioner shot and killed Chancy Williams ("Williams" or "the victim") in the Village of Albion, New York. In the hours leading up to the murder, Petitioner and his friend, Deshawn Scott ("Scott"), had a series of altercations with William and Williams' friends. Trial Transcript [T.T.] 46-66, 71-98, 104-109, 115-122. Following the final altercation, Petitioner borrowed a car from a neighbor, and he and another friend, Dywand Jackson ("Jackson"), picked up Scott, and then went to check on another friend, Toland Canty ("Canty"). T.T. 199-202, 327-331. After they located Canty at a nearby bar, they returned with Canty to his home where Petitioner secured a pair of gloves, changed into a "hoody" sweatshirt, and requested that Canty tell him where Williams and Williams' friends could be located. T.T. 149-152, 163, 210, 211-213, 259-261, 340-341. Before the men left Canty's house, Canty saw something wrapped in a handkerchief in the pocket of the "hoody" sweatshirt Petitioner was wearing. T.T. 157, 168.

Petitioner, Scott, Jackson, and Canty then drove to the Beechwood Apartments that Canty had identified as the place where Williams was staying. T.T. 152-154, 212-214, 342-343. The men could not immediately locate William and/or Williams' friends, and Canty told Petitioner that he wanted to get out of the car. T.T. 155, 157, 215. Petitioner drove Canty home. Petitioner, Scott and Jackson then returned to the Beechwood Apartment complex and parked their vehicle. T.T. 155, 216-218, 343-343. Scott was instructed by Petitioner to stay in the car. T.T. 220-221. Petitioner and Jackson exited the car, walked around the exterior wooded area of the apartment complex, and then returned to the car. T.T. 345-346. Petitioner indicated that he could not locate any of the individuals who had been involved in the earlier altercations, but that he was not leaving the apartment complex "until somebody's dead." T.T. 223-224. The three men sat in the car and smoked cigarettes for about five minutes, and then Petitioner and Jackson exited the vehicle. The two men walked back into the wooded area around the apartment complex. T.T. 269, 346, 364, 357-358. When Williams exited the building at approximately 2:30 a.m., Petitioner ran up to him and fired a gun repeatedly striking him in his face, head, chest and back, killing him, and also hitting a nearby apartment building. T.T. 306-307, 624-640, 642, 648.

A yellow latex glove was later recovered from the scene of the crime, as well as several cigarette butts, one of which matched Petitioner's DNA and was found along the wooded trail area leading to the apartment complex. T.T. 114-115, 160-161, 247-248, 360-361, 470-474, 554, 557, 580-586, 588-589.

New York State Investigators Colon and Black arrested Petitioner in Rochester, New York, on July 11, 2004. When the officers brought Petitioner to the police barracks in Albion, Officer Colon read Petitioner his Miranda warnings, and Petitioner indicated that he understood those warnings and agreed to speak with the officers. Thereafter, Petitioner gave several oral statements and responded with physical gestures in response to the officers' questions. Petitioner's statements acknowledged his presence at the altercation leading up to Williams' murder, but his gestures were ambiguous as to whether he committed the murder. T.T. 677-716.

On July 29, 2004, Petitioner was indicted by the Orleans County Grand Jury under Indictment No. 04-58. He was charged with two counts of Murder in the Second Degree, one count of Criminal Possession of a Weapon in the Second Degree, and one count of Reckless Endangerment in the First Degree.

Prior to trial, a Huntley hearing*fn2 was held, wherein the trial court found that Petitioner had waived his Miranda rights, and that testimony regarding Petitioner's police interview would be allowed at trial. Hearing Minutes [H.M.] 180-182. Petitioner did not present evidence or witnesses at this hearing.

Petitioner proceeded to trial, but did not testify. On February 2, 2005, the jury convicted Petitioner of intentional murder in the second degree, criminal possession of a weapon in the second degree, and reckless endangerment in the first degree.*fn3 T.T. 829-832.

On April 14, 2005, Petitioner, through his trial counsel, moved to set aside the verdict pursuant to New York Criminal Procedure Law ("C.P.L.") §§ 330.30, 330.40, 330.50. The trial court denied this motion, finding that the proof against Petitioner was overwhelming. Sentencing Minutes [S.M.] 2-4.

On April 25, 2005, Petitioner was sentenced as a second felony offender to an indeterminate term of twenty-five years to life for the murder count, a determinate fifteen year term for the weapon possession count, and an indeterminate term of three and a half years to seven years for the reckless endangerment count. S.M. 10-12. The court also issued orders of protection for the victim's family, Scott, and Scott's family. S.M. 12.

Petitioner appealed his judgment of conviction, which was unanimously affirmed by the Appellate Division, Fourth Department on November 17, 2006. People v. Gainey, 34 A.D.3d 1250 (4th Dept. 2006); lv. denied, 8 N.Y.3d 880 (2007).

This habeas corpus petition followed, wherein Petitioner seeks relief on the following grounds: (1) the trial court erred when it did not grant Petitioner's motion to set aside the jury verdict because the evidence was legally insufficient to support his conviction; (2) the prosecutor's inflammatory summation denied Petitioner a fair trial; and (3) that his pre-trial motion to suppress his statements should have been granted. Petition [Pet.] ΒΆ22A-C (Dkt. #1); Pet'r. Answer and Memo. of Law in Support of Writ of ...


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