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Gawlick v. Conway

November 3, 2010

AARON GAWLICK, PETITIONER,
v.
JAMES 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 Aaron Gawlick ("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 August 8, 2003, in New York State, County Court, Monroe County, convicting him, after a jury trial, of Murder in the Second Degree (N.Y. Penal Law ("Penal Law") § 125.25 [1]).

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

II. Factual Background and Procedural History

On September 10, 2002, Petitioner, Theresa Pape ("Pape"), Heather Rumble ("Rumble"), Richard Burdick ("Burdick"), and Adam McGill ("McGill") were at McGill's house in the Town of Byron, New York. The three men decided that they would all drive together in Pape's car to the City of Rochester to purchase cocaine. Petitioner brought a screwdriver with him for the purpose of fixing a faulty break light on Pape's car. Trial Transcript [T.T.] 350-354, 368-369, 484.

Their quest for cocaine brought them to Jay Street in Rochester. There, they were flagged down by the victim and the victim's cousin, who were standing by the side of the road in front of a house at 493 Jay Street. Petitioner, who was driving Pape's car, pulled over and parked the car on the north side of Jay Street. Petitioner got out of the car and approached the two men. Petitioner asked the victim, in Spanish, if he had any cocaine. Petitioner then summoned Burdick, who exited Pape's car and joined him. As Petitioner and Burdick discussed a drug sale with the two men, a third man --- who, Petitioner testified, wore a red shirt and jean shorts --- came running up to them. The men wanted Petitioner to go behind a nearby house, but Burdick expressed his reluctance to do so and returned to Pape's car. T.T. 414-415, 487, 489, 490-492.

After Burdick returned to Pape's car, "a couple" of the men came over to Pape's car. One of the men put his hands in to the car and exhibited some drugs. The man informed Burdick and McGill that if they wanted to buy drugs, they had to go to a side alley. Burdick and McGill declined to do so. The men then walked away from the car. Thereafter, Petitioner began walking back toward Pape's car when someone called out to him. Petitioner testified that it was the victim who called out to him. Petitioner testified that he responded to this call, and walked to the back of Pape's car to determine what the victim wanted. Petitioner testified that he and the victim engaged in a discussion whether Petitioner was going to purchase drugs. Petitioner testified that during the discussion, the victim had his back to the car and the Petitioner was facing him. While having their discussion, Petitioner testified that the two other men approached him, one riding a bicycle and the other (the man in the red shirt and jean shorts) approached from behind on foot. Petitioner testified that he then saw the victim "flinch" and he reacted and swung the screwdriver, which he removed from his pocket, and struck the victim in his throat. The victim later died from the stab wound inflicted to his throat. T.T. 372-374, 497-499.

After the encounter, Petitioner ran back to Pape's car and told the others that he had just punched the victim in his face. There was blood on the screwdriver and on Petitioner's hands. Burdick removed the screwdriver from Petitioner's lap as they drove from the scene and threw it out of the car window. A sock, which Petitioner used to wipe the blood from his hand, was also thrown from the car window. After the group returned to McGill's home, Petitioner explained, in detail, to Burdick and McGill how he had stabbed the victim in the throat with the screwdriver. T.T. 359-360, 416, 419-420.

At the end of September 2002, Petitioner spoke to a longtime friend, Mandy Chase ("Chase"), regarding the incident. Chase testified that Petitioner told her that he saw "a Puerto Rican kid" (the victim) standing by the car talking to Burdick. She further testified that Petitioner told her that it looked like the individual and Burdick were arguing, so he ran over and "stuck him in the throat with a screwdriver." Chase testified that, in the course of recounting the events of September 10, 2002, Petitioner did not mention observing any weapons. T.T. 473.

Petitioner was indicted by a Monroe County Grand Jury and charged with two counts of murder in the second degree (intentional murder and depraved indifference murder). See Ind. No. 00668 (Resp't Ex. B at 7).

From July 21 to July 24, 2003, a jury trial was held before the Hon. Frank P. Geraci, Jr. Petitioner testified in his own defense.

Burdick, Pape, and Rumble testified for the prosecution, and each recounted the events of September 10, 2002 as he/she recalled them. Vanessaly Bermudez ("Bermudez"), a friend of the victim who lived at 493 Jay Street and witnessed the incident, also testified for the prosecution. Notably, Burdick testified that he did not remember seeing anyone wearing a red shirt or riding a bicycle at the scene of the crime. Pape also testified that she did not recall seeing anyone on a bicycle. Burdick and Bermudez testified that they did not see anyone between Defendant and Pape's car at the time Petitioner struck the victim in the throat with the screwdriver. Not a single witness testified that he/she observed the victim or anyone else with a weapon. T.T. 290-291, 328-330, 358, 374, 414, 425.

At the close of the trial, Petitioner was found guilty of one count of second degree murder (intentional murder). He was subsequently sentenced as a second felony offender to a term of twenty years to life imprisonment. Sentencing Mins. [S.M.] 3, 22.

On or about December 9, 2004, while Petitioner's direct appeal was pending, Petitioner filed a motion to vacate his judgment of conviction, pursuant to N.Y. Crim. Proc. Law ("C.P.L.") § 440, alleging that his trial counsel was ineffective because counsel failed to inquire into Petitioner's state of mind during the incident. See Pet'r Motion to Vacate the Judgment of Conviction dated 12/09/04 (Resp't Ex. J). That motion was denied by the Monroe County Court on March 24, 2005, pursuant to C.P.L. § 440.10(2)(b), because Petitioner's direct appeal was pending at the time. See Decision & Order of the Monroe County Court (Hon. Frank P. Geraci, Jr.), Ind. No. 2002-0668, dated 03/24/05 (Resp't Ex. L). Leave to appeal was ...


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