The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Archie L. Price ("petitioner") has filed a timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Supreme Court of two counts of Murder in the Second Degree (N.Y. Penal L. § 125.25(1)) and one count of Criminal Possession of a Weapon in the Second Degree (former N.Y. Penal L. § 265.03(2)). Petitioner's judgment of conviction was entered on October 11, 2002, following a jury trial before Justice Ronald H. Tills. He was subsequently sentenced to an aggregate term of imprisonment of forty years to life.
II. Factual Background and Procedural History
Petitioner's conviction stems from the fatal shooting of Melvin Payne ("Payne") and Darnielle Butler ("Butler") on July 5, 2001 on Buffalo's east side.
The day of the murders, petitioner, then 17 years-old, was involved in altercation on Stevens and Northland Avenues in the City of Buffalo among several young men. During the melee, petitioner was struck in the head or jaw and was knocked to the ground. Petitioner then ran to 198 Stevens Avenue, where his girlfriend, Ashley Williams ("Williams"), was visiting a friend. He told Williams that he was "about to go down there and light the block up." T. 67-68.*fn1 Despite Williams' pleas for petitioner not to return to the scene of the fight, petitioner went anyway. T. 70. When petitioner returned to the house, he was wearing a tan shirt, jeans, and boots. He had his hands under his shirt as he approached Williams and another friend, Akira Reid*fn2 ("Reid"). Petitioner entered 198 Stevens and changed into a light blue jersey and blue sneakers. He told Williams and the others to "be quiet." T. 72-74.
Reid testified that a few days following the shooting, she returned to 198 Stevens and while she was there, she received a phone call from petitioner, who asked her to "go get the gun out of Erika's room, inside of the vent." T. 116. She described the gun as black and that it "looked like it was broke." T. 117. Reid then called her friend Roderick Arrington ("RaRa") and asked him to "come and get [the gun] out the house." T. 119. RaRa instructed Reid that "we better not tell anybody what Bonkers did." T. 159.
Eyewitness Robert Daniel ("Daniel") also testified at petitioner's trial. On July 5, 2001, Daniel observed a large group of people fighting in the street around Northland and Stevens Avenues. T. 177. He saw petitioner get hit in the jaw, and then everyone "started scattering." T. 178. Several minutes later, Butler pulled up in his car and stopped at the corner of Stevens and Northland. Payne stood at Butler's car, talking with Butler.
T. 181. Moments later, Daniel heard gunfire and saw Payne fall in the middle of the street beside Butler's car. He then saw Butler's car go into reverse and hit a tree. T. 184-185.
Payne was pronounced dead at the scene and Butler was pronounced dead the following day. Eight shell casings were found at the corner of a fence and a driveway located at 182 Stevens, and bullet fragments were found in the street near Payne's body.
T. 252, 266, 307. Butler's car had a bullet hole in the front windshield. T. 268. The gun that was used in the shooting was not recovered.
Approximately one month after the shooting, petitioner spoke with homicide detectives from the Buffalo Police Department. After several denials of his involvement in the shooting, petitioner signed a statement indicating that he stood near a fence on Stevens Avenue, closed his eyes, and fired a gun multiple times. He said he had shot the victims because "someone was shooting at [him] and [he] was scared for [his] life." T. 500-502. Petitioner also told police that following the shooting, he went to 198 Stevens, changed his clothes, and put the gun in a heating vent. T. 504-505. He concluded his statement with, "I did not mean to do it. I did not mean to shoot them people. It was an accident. I wish I could change what happened." T. 505.
Petitioner was found guilty of two counts of intentional murder and one count of criminal possession of a weapon. He was sentenced to consecutive terms of imprisonment of twenty years to life for the murder convictions, along with a concurrent term of nine years, determinate, plus five years of post-release supervision for the weapons possession. T. 777, S. 27-28.
Through counsel, petitioner filed a brief to the Appellate Division, Fourth Department, raising the following issues for appeal: (1) the imposition of consecutive sentences was illegal; (2) the evidence was legally insufficient to support the convictions for intentional murder; (3) prosecutorial misconduct/court hostility; and (4) ineffective assistance of trial counsel. See Respondent's Exhibits ("Ex.") B. The Fourth Department unanimously affirmed the judgment of conviction. People v. Price, 35 A.D.3d 1230 (4th Dept. 2006); lv. denied, 8 N.Y. 926 (2007).
Petitioner then filed a motion to vacate the judgment pursuant to N.Y. Crim. Proc. L. ("C.P.L.") § 440.10, alleging:
(1) prosecutorial misconduct; (2) denial of his right to counsel at his arrest; (3) ineffective assistance of appellate counsel; and
(4) excessive sentence/repugnant verdict. See 440.10 Mot. dated 10/6/2007 (Ex. D). The state court denied petitioner's motion on December 10, 2007. See Order of the Sup. Ct., Erie County (J. Michalski), No. 01-1874-001, dated 12/10/2007 (Ex. D). Petitioner did not seek leave to appeal that decision in the Appellate Division.
The instant habeas petition followed (Dkt. #1), in which petitioner raises the following grounds for relief:
(1) petitioner's statements to police were obtained in violation of his right to counsel; (2) ineffective ...