The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Proceeding pro se, Shannon Davis ("Davis" or "Petitioner") has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state custody pursuant to a judgment of conviction following a jury trial on charges of second-degree attempted murder (Penal Law §§ 110.00, 125.25(1)), first-degree assault (Penal Law § 120.10(1)), second-degree criminal possession of a weapon (Penal Law § 265.03(2)), and third degree intimidating a victim or witness (Penal Law § 215.15(1)). On June 28, 2002, Davis received concurrent nineteen-year sentences for the attempted murder and assault convictions, which he is still serving. He received lesser concurrent sentences on the other convictions.
The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).
Under Indictment No. 01-1663-001, Davis was charged with Attempted Murder (Penal Law §§ 110, 125.25(1)), Assault in the First Degree (Penal Law § 120.10 (1)), Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03 (2)), and Intimidating a Victim or a Witness in the Third Degree (Penal Law § 215.15(1)). A summary of the trial proceeding follows.
James Smith ("Smith") had known Petitioner for about two years prior to the incident, and had been to his house fifteen or twenty times (42, 82-83).*fn1 Carrie Pecoraro ('Pecoraro") lived with Smith during the nine months leading up to July 21, 2001, and had seen Petitioner many times (104-105).
On July 21, 2001, Smith sold Petitioner a refurbished air conditioner for $90. Petitioner gave him $30, and agreed to pay him the rest later that day (35). That night, Smith called Petitioner's pager, and Petitioner returned the call. Smith, hoping to collect the $65-balance, deceived Petitioner by telling him that he knew someone who was looking to purchase cocaine. Smith himself had purchased cocaine from Petitioner in the past (32-33, 43, 46).
Later that night, Pecoraro was outside walking her dog, and Smith was waiting outside for Petitioner (47-48). Shortly after 1:00 a.m., Smith and Pecoraro saw a black Oldsmobile Aurora pull up to the curb (44, 117). Although Smith was not certain, he thought that Bernard Brooks ("Brooks") was in the Aurora (44-45). Smith knew Brooks, and knew that Brooks was Petitioner's friend.
Then, a a white car that pulled into the driveway with Petitioner as a passenger (44). Pecoraro saw Petitioner as the car pulled in all the way to the back. Petitioner asked Smith where the customer was, but Smith insisted on getting his money first. Instead of paying him, Petitioiner pulled out a gun and started shooting (51-53). After the last shot, Petitioner said, "Fuck with me now" (58).
When Pecoraro heard the gunshots, which sounded like, "pops," she hid in the bushes. She then saw Petitioner's car pulling out of the driveway. Someone from that car yelled toward the black Oldsmobile Aurora, "[L]et's get out of here" (119).
Smith yelled to Pecoraro that he had been shot. Pecoraro called 911 for him, observing that Smith was bleeding badly. Smith described Petitioner for the 911 operator, but did not identify him by name. At some point, Smith became unresponsive, and the call ended.
When the police arrived, Smith and Pecoraro told the police that Shannon Doyle shot Smith. Smith gave the defendant's last name as Doyle, because he knew that was the last name of Petitioner's mother (42, 210). Smith described Petitioner and gave police his address. Petitioner described the car that the defendant had been in, and mentioned that a wheelchair was in the back seat (210-211).
While Smith was being treated at the hospital, he was fading in and out of consciousness (64). One bullet had entered the right side of his abdomen about six inches above his waist (55). Other bullets had caused nerve damage that inhibited movement of all small muscles in his right hand. Smith ultimately underwent eight hours of surgery (56-57, 142-143).
The police took a statement from Pecoraro and showed her a photographic array. Pecoraro, however, did not select Petitioner because, she said, she had gone "blank" (123). Pecoraro said that she was frightened, and that no one would tell her whether Smith was going to live or die (123, 126-127, 131).
Petitioner's mother went to visit Smith at the hospital (67-68). Brooks, the person whom Pecoraro saw in the black Oldsmobile Aurora on the night of the shooting, went to see Smith two or three times (67-68). As a result of these visits, Smith testified that he was becoming fearful, and so he checked out of the hospital early.
Brooks and Petitioner were outside the front of the hospital when Smith checked out (67). Concerned for his safety, Smith decided to stay in a hotel for a few days. He eventually returned to his home, but did not sleep there (81). Smith then contacted Detective Gary Teague to tell him where he believed Petitioner to be staying. Detective Teague and other officers then arrested Petitioner at his residence at 31 Kerns Street (69-70, 219).
A felony hearing was scheduled for August 3, 2001, which Brooks attended. Before the hearing, Brooks followed the victim, Smith, into the men's room and threatened him (70-71). Deputies eventually removed Brooks from the building. Smith ultimately identified Petitioner at the hearing and the directed that the case be presented to the Grand Jury (71-72) .
Three days later after the felony hearing, on August 6, 2001, someone from Petitioner's cellblock placed a telephone call directly to Smith's home at 4:23 p.m. (33, 161). Later, at around 7:00 p.m., Petitioner called his own home and a three-way call was placed to Smith's home phone number (72, 153-154, 157, 163-164).
In the three-way phone call, Petitioner offered to take care of Smith if he would drop the charges. Petitioner also warned Smith of the consequences of proceeding with the criminal prosecution: "[Y]ou don't want to have your ass out on Front Street" (73). Smith interpreted that to mean that he would be shot again if he testified against Petitioner (73).
Smith testified that hearing Petitioner's voice made him fear for his life (74). Smith immediately called a friend of his, Father Boyer. According to Father Boyer, Smith sounded highly agitated and distressed (205). "He was in panic, his voice was trembling. I have never heard him in such a state" (206).
III. Standard of Review under 28 U.S.C. § 2254(d)
When a petitioner "in custody pursuant to the judgment of a State court" seeks habeas review of "any claim that was adjudicated on the merits in State court," a habeas writ may issue only if the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). A state court decision is "contrary to" federal law as determined by the Supreme Court if either (a) "the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law," or (b) "the state court considers facts that are materially indistinguishable from a relevant Supreme Court case and arrives at an opposite result." Williams v. Taylor, 529 U.S. 362, 405 (2000)). An "unreasonable application" of clearly established federal law occurs if (a) " 'the state court identifies the correct governing legal rules from the [Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case,' " or (b) the "state court invokes a Supreme Court case and unreasonably extends its legal principle to a new context where it should not apply, or fails to extend it where it should apply." Williams, 529 U.S. at 407.
III. The Exhaustion Requirement
A habeas petitioner must have exhausted all state remedies before seeking federal habeas relief. See 28 U.S.C. § 2254(b)(1); Daye v. Attorney Gen'l of N.Y., 696 F.2d 186, 190 (2d Cir.1982) (en banc), cert. denied, 464 U.S. 1048, 104 S.Ct. 723, 79 L.Ed.2d 184 (1984). In order for a claim to be considered exhausted, it must have been presented fully and fairly in federal constitutional terms to the State courts. See, e.g., Duncan v. Henry, 513 U.S. 364, 365-66, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995); Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971); Daye, 696 F.2d at 191.A claim is exhausted if it has been "fairly presented" to the state court. Daye, 696 F.2d at 191. To fairly present a federal constitutional claim, the petitioner must have set forth for the state court all the essential factual allegations and legal premises now being asserted in federal court. Id. "
IV. The Adequate and Independent State Ground Doctrine and Procedural Default
The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (citations and internal quotations omitted). Even where the state court also considers a petitioner's arguments on the merits, that is of no moment because "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris, 489 U.S. at 264 n. 10; accord Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991);
Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir.2000); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir.1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436, 131 L.Ed.2d 316 (1995).
To show a "fundamental miscarriage of justice" requires a demonstration of "actual innocence." See, e.g., Calderon v. Thompson, 523 U.S. 538, 559, 118 S.Ct. 1489, 140 L.Ed.2d 728 (1998) (citing Sawyer v. Whitlety, 505 U.S. 333, 339 (1992) (."The miscarriage of justice exception is concerned with actual as compared to legal innocence."). The Supreme Court has emphasized that the exception has a "narrow scope," Sawyer, 505 U.S. at 339. "To be credible," a claim of actual innocence must be based on reliable evidence not ...