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Rahad Ross, 03-B-1779 v. Robert Kirkpatrick

April 27, 2011

RAHAD ROSS, 03-B-1779, PETITIONER,
v.
ROBERT KIRKPATRICK, RESPONDENT.



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

ORDER

I. Introduction

Pro se petitioner Rahad Ross ("petitioner") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Supreme Court of Murder in the Second Degree (N.Y. Penal § 125.25(1)) and Assault in the Second Degree (§ 120.05(2)) following a jury trial before Justice David D. Egan. Petitioner was sentenced to consecutive sentences totaling thirty-two years to life imprisonment.

II. Factual Background and Procedural History

On the night of September 25, 2002, petitioner shot Phillip Gaylord ("Gaylord") and Kevin Williams ("Williams") on Aebersold Street in the City of Rochester. Petitioner fired approximately five shots, striking Gaylord four times and Williams once as the men were walking down Aebersold toward Portland Avenue. T. 264-265, 267, 334, 337, 426.*fn1 Gaylord died as a result of his injuries and Williams survived, suffering a gunshot wound to his ankle. T. 337, 348, 426, 432.

Rochester Police Officer James Reed responded to the scene of the shooting and found Gaylord laying on the sidewalk, unresponsive. T. 214-215, 220.

Eyewitness Sherry Melcer ("Melcer") had been sitting on her front steps outside 74 Aebersold Street when petitioner shot Gaylord and Williams. T. 265. Melcer testified that she observed petitioner emerge from a vacant lot next to her house wearing all black and a do-rag on his head. T. 265-266, 269, 281. Petitioner then walked to the sidewalk, raised his hand and fired five or six shots toward the direction of Portland Avenue. T. 265-267, 282, 285. Melcer then saw Gaylord fall to the ground. T. 266. Petitioner turned around and ran back through "the cut". T 265. Melcer called 911 to report the shooting, which she viewed from approximately twenty feet away. T. 242-245, 267, 288, 419-420. She testified that after she called 911, she saw Gaylord lying face-down on the sidewalk with "a lot of blood" and "gasping for air." T. 270, 299.

Melcer also testified that she had a prior criminal history, with her last arrest occurring about five years prior. She also had a history of drug and alcohol abuse, and was consuming alcohol the night of the shooting. T. 270-271, 297, 302-304. Despite her alcohol consumption that day, Melcer testified that she "knew what was going on" and was able to answer the questions posed by the 911 operator. T. 268. According to Melcer, she had known petitioner for approximately two years because he sold drugs in the Aebersold neighborhood where she lived. T. 262-263. A year before the shooting, Melcer had confronted petitioner about selling drugs outside of her house, although she acknowledged having a history of selling drugs herself. Hr'g Mins. dated 6/19/2002 at 33-44; T. 264, 328-30.

Williams, who survived the shooting, testified that at the time of the shooting, he was high on cocaine, and was looking to buy more from Gaylord. T. 336. He was walking down Aebersold Street toward Portland Avenue when he was shot in the ankle. According to Williams, he turned around and saw a man wearing what looked like a "black hoody" or "black mask", and the man continued to shoot at him and Gaylord. Williams stated that the shooter was approximately twenty feet away from him and four feet away from Gaylord, but Williams was unable to see the shooter's face. T. 334, 340, 343. As Williams was "hopping" away, he too saw the shooter run through the cut. T. 338. Although Williams did not identify the shooter, he testified that he knew petitioner because he was dating Williams' sister. T. 339. He also stated that petitioner was about the same height and build as the shooter. Id.

The prosecution's theory in this case was that Gaylord, a witness in a murder case against a man named Wiley McCloud, was killed by petitioner to prevent him from testifying at the upcoming trial. Hr'g Mins. dated 6/19/2003 at 174; T. 387. Prior to being shot to death, Gaylord had identified Wiley McCloud as the individual who murdered Michael Graham. T. 391-394. According to the testimony of a Rochester Police investigator, Gaylord was the only person who could identify Wiley McCloud as Michael Graham's killer. T. 402.

The jury found petitioner guilty of second-degree intentional murder and second-degree assault. T. 645-646. He was subsequently sentenced to consecutive, aggregate terms of imprisonment of thirty-two years to life. S. 14.

Petitioner appealed his conviction to the Appellate Division, Fourth Department, on the sole ground that he was denied a fair trial due to the improper admission of evidence of petitioner's prior bad acts. The Fourth Department unanimously affirmed the judgment of conviction. People v. Ross, 43 A.D.3d 1434 (4th Dept. 2007), lv. denied, 9 N.Y.3d 1038 (2008). Petitioner also filed a motion for writ of error coram nobis challenging his appellate counsel's effectiveness, which was denied by the Fourth Department. People v. Ross, 63 A.D.3d 1670 (4th Dept. 2009), lv. denied, 13 N.Y.3d 862 (2009).

The instant petition for habeas corpus followed, alleging that the verdict was not supported by legally sufficient evidence and that his trial and appellate counsel were ineffective.*fn2 Pet. ΒΆ 22(A)-(C). For the reasons that follow, the Court finds ...

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