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Ian Harewood v. James Conway

December 9, 2010


The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge


I. Introduction

Petitioner Ian Harewood ("Petitioner"), through counsel, 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 January 30, 2002, in New York State, County Court, Monroe County, convicting him, upon a jury verdict, of Murder in the Second Degree (N.Y. Penal Law ("Penal Law") § 125.25

[3] (felony murder)) and two counts of Attempted First Degree Robbery (Penal Law §§ 110.00, 160.15 [2], [4]).

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

II. Factual Background and Procedural History

The conviction arises from events that occurred on August 29, 2000 in the City of Rochester, New York. At approximately 10:00 p.m. on that date, Officer Paul Lucci ("Officer Lucci") of the Rochester Police Department ("RPD") was dispatched to the area of Thomas and Wilkins Streets regarding a reported shooting. Upon his arrival, Officer Lucci was directed by various bystanders to the driveway of 133 Thomas Street. There, he discovered the body of Porfirio Javier ("Javier" or "the victim") lying in a pool of blood next to a parked car. According to the medical examiner, Javier was killed by a single bullet wound to the side of his head fired from a few inches to three feet away. Trial Trans. [T.T.] 220-221, 243-251, 364-378.

Shortly thereafter, additional officers arrived at the scene and entered 133 Thomas Street. The police discovered a shotgun in the living room and a wallet containing the driver's license of William Brooks ("Brooks") on a table in the front bedroom. Brooks' fingerprints were recovered from a bottle and a can found in the house. T.T. 252-253, 277-280, 354.

About four months later, on December 21, 2000, narcotics investigators executed a search warrant at 6 Rodenbeck Place in the City of Rochester, where they seized a handgun, cocaine, and currency. Petitioner, who was at the home at the time the warrant was executed, was arrested and transported to the police station. T.T. 460-463.

While at the police station, Petitioner spoke to RPD Investigator Ronald Reinstein ("Investigator Reinstein"). Investigator Reinstein, who was assigned to the homicide unit, was involved with the investigation relating to the Thomas Street homicide. Prior to the interview, Investigator Reinstein told Petitioner, who was waiting for him in an interview room, that he would be with him shortly, to which Petitioner responded, "I have something better than this for you." When Investigator Reinstein returned to the interview room, he obtained a waiver of Petitioner's Miranda rights and then asked Petitioner what he meant by his comment. Petitioner indicated that he had information about the murder of "the Spanish guy on Thomas Street." Investigator Reinstein asked Petitioner if he meant "the one that is in front of your drug house?" Petitioner answered in the affirmative. T.T. 409-416.

Petitioner then asked Investigator Reinstein if he would be able to do anything for him with respect to the federal drug charges for which he was in custody. Investigator Reinstein indicated that he could not, but that it would be beneficial to Petitioner to disclose any other information he had regarding the Thomas Street homicide. Petitioner then gave oral and written statements to police regarding said homicide. T.T. 416-419.

According to Petitioner's statements, he sold drugs out of a house on Thomas Street. He bought drugs from Javier, one of whose suppliers was a man named John Polanco ("Polanco"). Petitioner believed that Polanco owed him $4,000 because Polanco had sold him drugs that were "cut too much." As a result, Petitioner planned to recoup his perceived loss by ordering drugs from Polanco over his cell phone and then have Brooks rob Polanco when Polanco arrived with the drugs. Petitioner gave Darius Brown ("Brown") a gun to give to Brooks to accomplish the robbery of Polanco. After robbing Polanco, Brooks was to meet Brown, who was to be parked nearby. Petitioner explained that, after about forty-five minutes, Polanco did not appear at 133 Thomas Street and so he determined that the he and Brooks would rob Polanco later. Petitioner left Brooks behind in the yard at 133 Thomas Street in the event Polanco showed up, and he and Brown went to Wilkins Street to "roll dice." Petitioner subsequently sent Brown back to 133 Thomas Street to tell Brooks to go into the house. When Brown arrived back at 133 Thomas Street, he was told by various individuals in the neighborhood that there was a dead body in the driveway. Brown then went back to get Petitioner. He and Petitioner returned to 133 Thomas Street together and were told by Herman Lewis ("Lewis") that there was a dead body in the yard. Petitioner recognized the car in the driveway as Javier's and thought to himself that Brooks had shot the wrong person. When police arrived at the scene shortly thereafter, Petitioner and Brown left the scene and went to Brooks' mother's house where Brooks told Petitioner that he went to rob the man who arrived at the house who had asked for Petitioner, the man had grabbed the gun, and it went off. T.T. 417-436.

Petitioner was indicted with Brooks (but tried separately) and charged with one count of murder in the second degree (Penal Law §§ 125.25 [3]; 20.00), and two counts of attempted robbery in the first degree (Penal Law §§ 160.15 [2], [4]; 110.00; 20.00). See Resp't App. B at 5-6. A jury trial was conducted from September 24-27, 2001 before the Hon. John J. Connell. Petitioner did not testify at trial and called no witnesses on his behalf.

Lewis, who testified for the prosecution, stated that he saw Petitioner shooting dice on Wilkins Street on the evening of August 29, 2000. He testified that, later that evening, he spoke with Brooks who told him that "he had gotten into trouble and did something." Lewis testified that Brooks explained to him that he thought he shot someone at Thomas and Wilkins Streets and that he had a gun with him. Lewis testified that he then went to 133 Thomas Street where he saw a man lying on the ground in the driveway. He testified that individuals from the neighborhood started to come around, including Petitioner and Brown. He testified that when he told Petitioner someone had been shot, Petitioner stated that "it was messed up." T.T. 384-391.

Petitioner was found guilty as charged. T.T. 591-592. Prior to sentencing, Petitioner moved, pursuant to N.Y. Crim. Proc. Law ("C.P.L.") § 330.30, to set aside the verdict on the ground that the prosecutor failed to disclose certain Brady material. See Resp't App. B at 131-136. Following a hearing, the trial court denied Petitioner's motion on the ground that Petitioner failed to demonstrate that the prosecutor was aware of

the Brady material. See Hr'g Mins. [H.M.] of 12/18/01; Resp't Ex. B at 142-146.

Petitioner was sentenced to an indeterminate term of imprisonment of twenty years to life on the murder count and determinate ten year terms of imprisonment on each of the attempted robbery counts, all to run concurrently. Sentencing Mins. [S.M.] 19-20.

The Appellate Division, Fourth Department ("Fourth Department") unanimously affirmed the judgment of conviction. People v. Harewood, 34 A.D.3d 1254 (4th Dep't 2007) (Resp't App. E.); lv. denied, 8 N.Y.3d 846 (2007) (Resp't App. G). Petitioner subsequently filed a motion for a writ of error coram nobis in the Fourth Department, which was summarily denied on July 3, 2008. People v. ...

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