The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se petitioner Ernest McWilliams ("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 September 8, 2004, in New York State, Supreme Court, Monroe County, convicting him, after a jury trial, of Murder in the Second Degree (N.Y. Penal Law ("Penal Law") § 125.25), Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03), and Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02).
For the reasons stated below, habeas relief is denied and the petition is dismissed.
II. Factual Background and Procedural History
Petitioner's conviction arises from an incident that occurred on April 16, 2003 in Rochester, New York, in which thirty-two-year-old Eric "Punree" Williams ("Williams" or "the victim"), who lived near the corner of Jay and Child Streets opposite the S&A Market, sustained gunshot wounds that resulted in his death. Trial Trans. [T.T.] 1112-1114, 1324-1328, 1349.
A number of witnesses saw the victim involved in a confrontation with two other African-American men just before 11:30 a.m. on April 16, 2003, near the market at Jay and Child Streets.
One of the witnesses was thirteen-year-old Shaunda McCarthy ("McCarthy"), who was watching television at a friend's house across the street from the market when she heard what she thought were gunshots. After going to the porch and looking across the street, McCarthy saw two men standing over Williams, whom she knew as "Punree," shooting him. T.T. 796-800.
Sarah Schaffer ("Schaffer") was in her bathroom when she heard shots. Looking out her window, Schaffer saw "Punree" on the ground. Another man was shooting him while the other was kicking him. T.T. 831-840.
Diane Christmas ("Christmas") testified that she saw two men approach Williams and "sandwich" him between the two of them. Christmas saw one of the men shoot Williams a number of times. She then saw the two men run to a car and drive away. She called 911. T.T. 956-964.
At about the same time, Julius Booker ("Booker") was working at a nearby food bank when he heard gunshots. As Booker went to the door, he saw three men on the ground. One of them got up and shot one of the other two, then ran away. The other two men appeared to be struggling over a gun. When the gun was being pointed toward Booker, he stepped away from the door. When he next looked, one man was left lying on the ground. T.T. 1076-1084.
Jim Candella ("Candella") heard what he later discovered were gunshots as he was driving on Jay Street near Child Street. Candella saw a man walk quickly by him and get in a dark-colored car. He was able to get the license plate number and called 911. He saw another man with a gun standing over a man on the ground. T.T. 866-881.
Jequan Patterson ("Patterson") was also driving in the area on his way to the Jay and Child Streets market. As he was approaching the intersection, he saw a man walking across the street carrying some groceries. Another man was crossing the street behind the man with the groceries. When the man with the groceries turned around, the other man grabbed him and "then they began like a tussle." A third man then joined the fight. The three then went out of his view before he heard what sounded like firecrackers. As Patterson traveled a little further in his vehicle, he heard a louder noise, or gunshot. Turning, he could see the three men who were fighting. He saw one man get up, shoot toward the two men on the ground, then run away carrying a handgun. A second man then got up and ran away, also carrying a handgun. The third man stayed down. T.T. 917-924, 934-936.
Traveling in the car with Patterson was Jennifer Smith ("Smith"). Smith testified that as they approached the intersection of Jay and Child Streets, she noticed three African-Americans wrestling in the street in front of the grocery store. One of them got up and fired a shot, ran, then came back and fired another shot. One of the other two then got up, stood over the man on the ground, fired shots at him, and then ran away with the first man who had fired the gun. T.T. 1002-1012, 1035-1038.
After police arrived at the scene of the shooting, Williams was taken to Strong Memorial Hospital, where he died from his gunshot wounds. Shortly after the victim was pronounced dead that same day between noon and 1:00 p.m., Rochester Police Department Officer Bryan Kehrig was approached by a woman who identified herself as Lisa McWilliams, and inquired as to whether Petitioner had been shot in the arm. After a conversation with her, Officer Kehrig radioed the dispatcher to check with area hospitals regarding a "walk-in gunshot wound." T.T. 1166-1176.
Later that day, at about 3:30 p.m., Rochester Police Department Investigator Randy Benjamin responded to Park Ridge Hospital where he met with Petitioner, who said he had been shot in the arm near his sister's house on Frost Avenue in Rochester at about 3:00 p.m. that day by a masked man who had chased him after getting out of a car. Petitioner told another officer at the hospital that he was shot by one of two men as he was turning to run away after walking towards the two who were involved in an argument. Investigator Benjamin made arrangements for the defendant to meet him the next day regarding the shooting, but Petitioner did not appear for the appointment. T.T. 623-634, 1203-1204.
A day after the shooting, on April 17, 2003, the car that was seen by the witnesses at the time of the shooting was discovered in a grocery market parking lot. Petitioner's fingerprint was lifted from the seatbelt buckle. T.T. 1205-1206, 1207-1221.
Four days later, on April 21, 2003, Rochester Police Department Investigator Thomas Cassidy interviewed Petitioner. At that time, Petitioner reiterated to Investigator Cassidy that he was shot by a masked man near his sister's house. T.T. 650-658.
About six months later, on September 18, 2003, police searched the home of Petitioner's uncle at 641 West Main Street in Rochester, pursuant to a search warrant, and recovered a .380 caliber handgun in the attic and a personal identification card belonging to Petitioner. T.T. 1138-1149, 685-687. Ballistics tests showed that spent casings found at the scene of the shooting, as well as the two projectiles removed from the victim's body during the autopsy, were fired from that gun. T.T. 1268-1315.
On October 2, 2003, police found a .22 caliber bullet on the floor of Petitioner's bedroom at 141 Grand Avenue in Rochester, New York. T.T. 1132-1137. The bullet, a misfire, had the same firing pin impression as exhibited on casings found at the scene of the shooting. T.T. 1313-1315.
Also on October 2, 2003, after Petitioner had been read and waived his Miranda rights, Investigator Cassidy interviewed Petitioner for a second time. Although Petitioner first denied any involvement in the shooting death of Williams, after being confronted with the evidence gathered during the investigation, he admitted that he shot Williams. In an oral statement that was reduced to a writing which Petitioner signed, he stated that he and Anthony Jenkins ("Jenkins") (who had died a few months earlier) drove together in a stolen car to the area of Jay and Child Streets because Petitioner wanted to talk to a man that lived on the corner about some stereos and televisions. After getting out of the car, the victim, who, according to Petitioner, "was acting like he was high or drunk," asked Petitioner for cocaine. Petitioner told the man that he did not have any and walked on. Seconds later, he heard something behind him and then saw that Jenkins had grabbed the victim, who was waving and firing a gun that struck Petitioner in the arm. Petitioner then pulled out his .380 handgun and shot the victim once before running for the car. As he ran, he fired twice more as Jenkins and the victim wrestled for the victim's gun. Petitioner then ran for the car, turned the car around, and waited for Jenkins. When Jenkins got in the car thirty to forty seconds later, he was carrying a .22 caliber handgun, which was, according to Petitioner, the same gun the victim shot Petitioner with. The two men then fled. In the car, Jenkins told Petitioner that the man he had jumped on was dead, and that he had jumped on him because he looked like he was going to rob Petitioner. T.T. 687-747.
Petitioner presented no evidence at trial. ...