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Montgomery v. Wood

July 30, 2010

RUSSELL MONTGOMERY, PETITIONER.
v.
ROBERT WOOD, SUPERINTENDENT, UPSTATE CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Introduction

Pro se petitioner Russell Montgomery ("Montgomery" or "Petitioner") has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Montgomery challenges the constitutionality of his state-custody pursuant to a judgment of conviction entered in Erie County Court, after a jury found him guilty of Murder in the Second Degree (N.Y. Penal Law § 125.25(1)) and Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03(2)). Montgomery is currently serving concurrent indeterminate sentences of 22 years to life for the murder conviction and 6 to12 years for the weapons-possession count

The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

II. Factual Background and Procedural History

On April 16, 1998, at about 2:00 p.m., Paul Pope ("Pope" or "the victim") visited Wymiko Anderson, also known as "Pumpkin," at her house. T.282-83.*fn1 Pumpkin was the mother of a child by Pope. Before he left, Pope gave Pumpkin some money and told her that he would give her more money later that day after he completed a large drug sale with petitioner.

T.284.

At around 6 p.m. that evening, Tashawn Davis ("Tashawn"), who also had a child fathered by Pope, went over to Pope's house. T.47-48, 49. The two then drove over to petitioner's house in Pope's White Pontiac Grand Am. T.48-50, 62-63. Pope brought with him a large amount of crack cocaine and cash. T52-53, 163-164. After parking the Grand Am in the driveway on the side of Petitioner's house at 488 Dartmouth, Pope went inside and Davis waited in the car and listened to loud music. T.50-51. According to Tashawn, loud music also was blaring from Petitioner's house. T.51. Petitioner was home alone; the mother of his child, Constance Ferguson ("Ferguson"), with whom he shared the house on Dartmouth, was away on a trip to Missouri. T.114.

About ten minutes later, Pope and Petitioner came out onto the front porch. Tashawn said that Petitioner tried to see who was waiting in Pope's car before he and Pope re-entered the house. T.50-52.

Soon thereafter, Pope came back to the car, retrieved something from his coat pocket and went back into the house. T.50, 61. About 10 to 15 minutes later, Petitioner came out of the house alone. After placing a white plastic bag in the garbage can, Petitioner approached the car where Tashawn was waiting for Pope. Petitioner told her that Pope had instructed him to drive her, in Pope's white Grand Am, to go purchase some marijuana. T. 50-51, 53, 56. Davis thought this was strange for a number of reasons. First, she did not smoke marijuana. Second, no one (other than Pumpkin) ever drove Pope's Grand Am. Third, it was unusual for Pope not to come out of the house himself to tell her what to do. T.53-55; 283, 298.

Despite her misgivings, Tashawn went along with what Petitioner's plan. Before they left, however, Petitioner went back into his house. When he returned, he had a dark colored hat. Petitioner then drove them both away in the Grand Am.

Within a few minutes, Tashawn recalled, Petitioner received a page, which he claimed was from Pope. T.56. Petitioner proceeded to drive to a house on Delavan to answer the page.

T.56. When Petitioner returned to the car, he told Tashawn that Pope had instructed him to give her $20.00 and drive her home. Petitioner explained that Pope's "man," "Pumpkin," had called and wanted him to do something. T.57. Tashawn immediately knew something was wrong because she knew "Pumpkin" was a woman, not a man. T.57-58, 66. Tashawn then asked Petitioner to stop at Kentucky Fried Chicken before he dropped her off but Petitioner refused, claiming that Pope had directed him to "hurry back." T.58. After allowing Tashawn to quickly run into a corner store for some candy, he drove her home. T.58. Before Petitioner could drive away from Tashawn's house, he was flagged down by another car occupied by Pope's cousin, Dion Anderson ("Anderson"), and Melvin Calhoun ("Calhoun"). T.59, 129.

Anderson, who was supposed to meet Pope at Tashawn's house at about 6:45 p.m. to borrow money from him, had driven around the block a few times before noticing Petitioner driving Pope's car at about 7:00 p.m. T.127-128, 148-151. Anderson and Calhoun testified that they thought it was odd for Petitioner to be driving Pope's car because they knew that Pope never let anyone except Pumpkin drive the Grand Am. T.130-131, 153, 283, 298.

When Anderson and Calhoun asked Petitioner where Pope was, Petitioner responded that he did not know. He mentioned, however, that he knew Pope was "taking care of some business." Petitioner then rolled up his window and "peeled off". T.129, 151. This was about 7:00 p.m.

Anderson, Calhoun, and Tashawn then went into Tashawn's house to try to contact Pope by phone. Tashawn explained that she knew Pope had had his pager and cell phone with him when he had gone into Petitioner's house on Dartmouth. T.55-56, 131, 151-52. Tashawn paged Pope using their emergency code, "911." T.55, 59-60, 73). Pope did not return any of her pages, which Tashawn found to be strange since Pope always called her back right away. Nor did Pope return Anderson or Calhoun's pages either, which also was not like him. T.55, 152-53. By that time, Tashawn, Anderson and Calhoun all felt that "something was not right." T.131-32.

At 7:15 p.m., about fifteen minutes after Petitioner had sped away from Tashawn's house, a man named Louis Faulkner ("Faulkner") was driving down Kay Street and noticed an African-American male, about 25 to 30 years old, with a dark colored hat driving a vehicle identified as Pope's white Pontiac Grand Am. Faulkner watched the man park the Grand Am, which by now had a shattered rear window, in a driveway on Kay Street. T.176-80.

Later that night, at about 10:00 p.m., Pope's friend, Khalid Wiley ("Wiley"), went to Petitioner's house on Dartmouth after Pumpkin told him that she suspected Petitioner had done something to Pope. When Wiley knocked on Petitioner's door, nobody answered. T.186-87, 189-91.

At about 11:50 p.m., police officers responded to a call regarding a white Pontiac Grand Am with a broken window parked on Kay Street. T.235, 244-45, 258-59. When the officers arrived, they noticed blood on the right side of the rear window and on the trunk area. T.235, 238. They then searched the car and found the keys in the ignition. T.235, 245. One officer opened the trunk with the keys and found Pope's dead body "jammed" inside and the trunk's interior covered with blood. T.236, 238-39, 245-46, 248-49, 259.

That night, someone called Davis and informed her that Pope had been found dead in the trunk of his Grand Am on Kay Street. T.61.*fn2

The following morning, at about 9:00 a.m., Wiley went back to Petitioner's house on Dartmouth. T.183-84, 186. Upon his arrival, Wiley saw Petitioner and Jimmy Newkirk ("Newkirk") getting out of a car, carrying a mop and cleaning supplies. T.184. Wiley approached the driveway, where Petitioner was examining a broken basement window. Petitioner asked Wiley if the window had been broken the night before. T.185. Wiley thought Petitioner's question was odd since no one had answered the door when he had stopped by the night before.

T.186.

Petitioner and Wiley walked to the front of the house and Petitioner invited Wiley inside to smoke a "blunt." T.185. Wiley related that Petitioner went around to the back of his house and then came out of the front door with large item in his front pocket; this object appeared to Wiley to be a gun. T. 187. Thinking that the whole situation was "strange,"Wiley made up an excuse and took off. T.185-86.

At about 8:00 or 9:00 p.m. that evening, Ferguson returned from her trip. T.115. No one was home when she entered the house she shared with Petitioner on Dartmouth Street. Petitioner's keys were lying on the kitchen table. T.115-16. When Ferguson saw that a basement window was broken, she called the police, thinking there had been a burglary. T.118.

When the officers arrived, Ferguson gave them written permission to search the house.

T.252-56, 262-63. Although officers found no evidence of that they house had been broken into, they discovered what was later determined to be Pope's blood dripping through the upstairs bathroom floor to the basement, onto the washing machine and the basement floor nearby. T.253, 263-66, 314, 395-401. The trail of blood continued to the stairs leading to the basement and in the hallway. T.399-405. On the main floor, traces of Pope's blood were found in the kitchen around the stove and in small clump-like spots on the kitchen floor. T.272. In addition, Pope's blood was on the wall tiles in the bathroom and on the bathtub. T.253, 274-75. The police discovered a mop standing next to the kitchen stove; a bottle of bleach with blood on its handle was found on the bathroom vanity. T.275. Additionally, a bottle of Pine Sol-brand cleaner was found on the dining room table along with the receipt for the mop and cleaning supplies. T.273. Outside in the garage, the police located a pail with blood stains on it underneath Petitioner' car.

T.268-69. The exterior wall of the house near the driveway displayed traces of Pope's blood, as did the side door and a block glass window. T.269. Finally, the police discovered a blood-stained gray shirt in a garbage can on the side of the house. T.270-71. Ferguson told the police that she had no idea how the interior and exterior of her house had come to be covered in blood. She explained that it was not there before she left for her trip. T.315.

Ferguson also testified that she, Petitioner, and her mother were the only people who had the keys to the ...


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