The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Dwight Garrison ("petitioner") has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction entered on January 30, 2003 in Monroe County Supreme Court of Attempted Murder in the Second Degree (N.Y. Penal L. §§ 110.00, 125.25(1)) and Assault in the First Degree (N.Y. Penal L. § 120.10(1)) following a jury trial before Justice Francis A. Affronti. He is currently serving a determinate term of imprisonment of twenty-five years.
II. Factual Background and Procedural History
Petitioner's convictions arose from an incident that occurred on February 23, 2002, in the City of Rochester. During a gathering at 632 Clifford Avenue, petitioner, a/k/a Sniper, shot Dennis Nation ("Nation") and Felicia Taylor ("Taylor") each three times without provocation. Nation died from gunshot wounds to his head and chest. Taylor was shot in the leg, right side, and face, but survived the attack. T. 445, 452, 533-538, 543-548, 552, 622.*fn1
Taylor testified at trial that on the evening of February 23, 2002, she attended a gathering at 632 Clifford Avenue with her boyfriend, Dennis Nation. While Nation was talking to another man, Taylor waited in the kitchen area for him. After approximately twenty minutes, three men entered the house, two of whom Taylor recognized. Taylor testified that she knew the two men as "Sniper" and "Teddy". She identified petitioner as the man she knew to be called Sniper. She stated that she had seen Teddy thirty to forty times over the past year and that she had seen Sniper five to ten times over the past year. Teddy was dressed in grey and Sniper had dark clothing on. As Taylor sat in the kitchen, there was no interaction between Nation and the three men that had recently arrived. T. 533-537.
According to Taylor, as she and Nation prepared to leave the house, Sniper, Teddy, and the third man convened in the foyer, chatting with others in the house. As Nation and Taylor entered the foyer to say goodbye, Sniper "nudged" Nation up against the wall, put a gun to his head and fired. Nation slumped to the floor. Taylor tried to run out of the house through the back entrance, but was grabbed and dragged back to Nation's body. Sniper held a gun to her head. Fighting and kicking frantically, the first shot fired missed her. Sniper shot two more times, hitting Taylor in the leg and the right side. At that point, she believes she lost consciousness. When she became aware of her surroundings again, Taylor began to scream. She then saw a grey-sleeved arm reach back through the front door and shoot her in the face. Taylor further recalled that as the shots were fired, the occupants of the house began to scatter. She managed to retrieve her cell phone from her pocket, and dialed 911 three times. When she was finally able to get through, Taylor told the 911 operator that she and her boyfriend had just been shot, and she thought her boyfriend was dead. T. 543-551.
The first officers on the scene testified that Taylor was able to identify the shooter as "Sniper", and described her attacker as a short, Jamaican male. T. 435-436. An emergency tracheotomy was then performed on Taylor at Rochester General Hospital so she would not suffocate on her own blood. T. 371. Two bullets were recovered from Nation; the evidence established that they were fired from separate guns. T. 728.
Petitioner was charged with second-degree murder under alternative theories (intentional and depraved indifference) with respect to Nation, and second-degree attempted murder and first-degree assault for the attack on Taylor. See Indictment No. 02-0217 at Respondent's Appendix B. At trial, the defense argued a theory that petitioner was misidentified as the shooter.
The jury found petitioner guilty of depraved indifference murder for the killing of Dennis Nation and guilty of the attempted murder and assault of Felicia Taylor. He was subsequently sentenced to aggregate terms of imprisonment totaling fifty years to life. T. 846-847, S. 16-17.
Through counsel, petitioner filed a direct appeal to the Appellate Division, Fourth Department, which reversed the conviction for depraved indifference murder, finding the evidence legally insufficient evidence to support such a conviction where the trial evidence established petitioner's use of a weapon with a "manifest intent to kill" the victim. People v. Garrison, 39 A.D.3d 1138 (4th Dept. 2007). Petitioner's judgment of conviction was affirmed as modified. Leave to appeal the Appellate Division's decision was denied by the New York Court of Appeals. People v. Garrison, 9 N.Y.3d 833 (2007).
The petition for habeas corpus followed, in which petitioner argues that his remaining convictions for attempted murder and assault are against the weight of the evidence. Petition ("Pet.") ¶ 22(A) & Attach. (7A) p. 1-5 (Dkt. #1).
For the reasons that follow, I find that petitioner is not entitled to the writ, and ...