The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Keith Balkman ("Balkman" or "petitioner") has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state custody pursuant to a judgment of conviction following a jury trial on one count of second degree (intentional) murder, for which he was sentenced on April 17, 1998, to an indeterminate term of imprisonment of 25 years to life.
The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
Balkman's conviction stems from the shooting death of Scott Fries in the City of Rochester on May 28, 1997. Balkman was indicted under two theories of homicide--intentional and depraved indifference. The police apprehended Balkman two days later, in possession of the murder weapon. T.410-13, 496-514.*fn1 Balkman confessed to shooting Fries and suggested to the police that he had acted in self-defense. T.456-57.
At trial, eyewitness Robert Louis ("Louis"), who described himself as a "good friend"of Balkman, identified him as the shooter. T.279-83. Louis testified that he was in his living room, on Murray Street, at the time of the shooting on. Shortly after 11:00 p.m. he heard a gunshot and looked out his window, where he saw Balkman "pointing the gun to a white guy's face and shooting the guy." T. 279. The incident occurred just outside of Louis' house, directly under a streetlight. T. 283. After Louis saw Balkman shoot Fries, he saw Balkman run up the street toward Lyell Avenue. Louis stated that Balkman ran directly past Louis' vantage point at his window. T. 279-81. Louis had known Balkman for several months, and estimated that he saw him "at least 20 times a day." T.281. Louis admitted that their friendship was based on "smoking weed together." T.281. In the days following the shooting, when Louis would see petitioner around, people would occasionally kid around with Balkman that the police were coming for him. Louis said that these comments typically sent Balkman running. T. 284.
Two days after the shooting, acting on a tip that Balkman and another man were riding bikes and carrying handguns, Rochester Police Officer Kevin Adami spotted petitioner, riding a bike and clutching something under his jacket. Officer Adami chased petitioner in his vehicle and then on foot, ultimately into the arms of another Officer, David MacFall. T.359-65. Immediately before he was apprehended, Officer MacFall saw Balkman toss a pistol away. The pistol was recovered. Forensic testing performed by the prosecution yielded results identify it as the murder weapon. T.375-77, 496-514.
Once the connection was made between the murder weapon and Balkman, the police questioned him about the murder. Balkman waived his rights and gave a statement in which he confessed to shooting Fries. He claimed, however, that he did so because he was afraid Fries was going to shoot him at some time in the future. T. 456-57.
At trial, Balkman presented an alibi defense on the basis that he allegedly was sleeping at a neighbor's house at the time of the shooting. T. 627-28. The defense also presented the testimony of an alleged eyewitness to the shooting, George Stanton ("Stantdon"), who claimed that Fries was shot by an unidentified third party. Stanton was unable to recall when the shooting took place. Stanton, who described himself as one of Balkman's friends, did not know where Balkman lived. T.532-33). Stanton explained that he was with his girlfriend, Christine Friederich, and a friend of hers, named Christy, whose last name he could not remember. T.533. (It was later learned that Christy's last name was Myers.). Neither Friederich or Myers could be located to testify at trial.
Stanton testified that on the night of the shooting, he had spoken with Fries on Murray Street, and directed him to a group of people up the street: Bobby Lathrop; a person he knew as "George" and who had the nickname, "Peanut"; and another person who Stanton first claimed he did not know, then later identified by the street name, "Nino." T. 537, 550. After some confusion concerning the real identities of "Peanut" and "Nino", defense counsel finally elicited from Stanton that he did not know the last name of George, also known as "Peanut." However, another witness identified "Nino" as George Mateo, and "Peanut" as a George McFadden. T.547, 556. In any event, Stanton said that Fries got into an argument with the man he did not know, and ultimately that unidentified man shot Fries. T. 535-39. Stanton denied that Balkman was the shooter. T. 540.
McFadden, who was identified as the person nicknamed "Peanut", testified for the defense. McFadden's testimony, however, undermined defense witness Stanton's version of events since McFadden testified that he was in New Orleans at the time, that he did not know anyone named "Nino" or George Mateo, and that he never saw Scott Fries get murdered.
T.613-15. During this damaging testimony, the trial judge observed petitioner's mother, Carolyn Balkman, "signaling and gesturing" to McFadden. T.616.
Following the guilty verdict, petitioner appealed to the Appellate Division, Fourth Department, raising only two issues--whether the gun should have been suppressed as evidence, and whether the sentence was harsh and excessive. Neither of these grounds is raised in the instant habeas petition. The Fourth Department affirmed the conviction, and the New York Court of Appeals denied ...