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Brandon Mcgrady v. James Conway

May 2, 2011

BRANDON MCGRADY, 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 Brandon McGrady ("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 June 1, 2005, in New York State, County Court, Monroe County (Frank P. Geraci, J.), convicting him, after a jury trial, of Murder in the Second Degree (N.Y. Penal Law ("Penal Law") § 125.25 [1]). Petitioner was sentenced to a term of 25 years to life imprisonment.

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

II. Factual Background and Procedural History

The charges arise from an incident that occurred on June 30, 2004, wherein 17-year-old Petitioner shot and killed thirty-year-old Corey Stanley ("Stanley" or "the victim") as Stanley ran into the home where Petitioner resided with his mother, father, and six younger sisters at 62 Trust Street, in the City of Rochester, New York.

At approximately 6:00 p.m. on the date of the shooting, Petitioner was playing dice on the Corner of Trust and Miller Streets with at least four other young men, one of whom was Stanley. Trial Trans. [T.T.] 301, 967. After Stanley disputed the outcome of one roll of the dice, he became enraged and made various threats against Petitioner, Petitioner's family, and his friends. T.T. 301, 968. Stanley also hit Petitioner in the head and hands. T.T. 967. Petitioner tried to walk away from the situation, but Stanley pushed him from behind. T.T. 968. Petitioner then walked away and into 63 Trust Street, a building across the street from Petitioner's home. There, Petitioner found a rifle, brought the rifle downstairs, left it in the doorway, and went back outside onto the porch. T.T. 303, 969.

Stanley, who was still outside on the street, continued to make threats against Petitioner and Petitioner's family. Stanley asked Petitioner if he had a gun, and Petitioner lifted up his shirt to show that he did not have one. When Petitioner indicated that he did not have a gun, Stanley stated, "[i]f you got it, better use it. You better do something, because it be all over tomorrow . . . . It be all over later." Stanley also stated that he was going to "wet everything up," which, according to Petitioner, meant that Stanley was going to "[c]ome by and start shooting [Petitioner's home] up." T.T. 969. After Stanley made the threats, Petitioner went back inside of 63 Trust Street and came outside with the gun. T.T. 970. Stanley stated, "[y]ou better shoot me . . . cause I'm coming back later. It's going to be over. It's going to be over for you and your family." T.T. 970. Then, Stanley turned and ran toward Petitioner's home. T.T. 262, 846-847, 910-911, 970-971. Petitioner shot at Stanley as he was running toward the home.*fn1 T.T. 264, 677-678, 974. Stanley stumbled and fell to one knee. Thereafter, he continued to run toward Petitioner's home and up the front porch steps. As Stanley ascended the stairs to Petitioner's home and front porch, Petitioner fired at Stanley again, but did not hit him. Petitioner chased Stanley into his family's house, and Stanley fell just as he entered the family's living room. T.T. 263-269, 368, 848, 973-975. While Stanley was on the ground on his back, Petitioner repeatedly pulled the trigger of the gun. In total, Petitioner fired fifteen bullets from the gun.*fn2 According to Petitioner, he "blacked out" and continued to shoot Stanley because he had "lost it." T.T. 975- 977. The victim died of multiple gunshot wounds. T.T. 685. After the shooting, Petitioner got into a car and drove away from the scene. T.T. 977. The murder weapon was recovered later that evening by police from the basement of Petitioner's home. T.T. 476-478, 484.

On July 17, 2004, Petitioner was taken into custody and transported to the police station for questioning. Hr'g Mins. [H.M.] of 01/21/05 7-8. There, he was read his Miranda rights, waived them, and proceeded to give police a written statement, wherein he admitted to shooting Stanley in the doorway of his family's home. H.M. of 02/04/05 11-18, 34-35.

Petitioner was subsequently indicted by a Monroe County Grand Jury and charged with: Murder in the Second Degree, in violation of Penal Law § 125.25 [1] (intentional murder); and Murder in the Second Degree, in violation of Penal Law § 125.25 [2] (depraved indifference murder). See Resp't App. B at 5. Petitioner pleaded not guilty and proceeded to trial. Mins. of 11/28/04 at 3.

At the close of his trial, Petitioner was found guilty of intentional murder (Penal Law § 125.25 [1]) and sentenced to a term of 25 years to life imprisonment. T.T. 1216; Sentencing Mins. [S.M.] 12.

On November 9, 2007, the Appellate Division, Fourth Department ("Fourth Department"), unanimously affirmed Petitioner's judgment of conviction, and leave to appeal was denied. People v. McGrady, 45 A.D.3d 1395 (4th Dep't 2007); lv. denied, 10 N.Y.3d 813 (2008). This habeas corpus petition followed, wherein Petitioner seeks relief on the basis that he received ineffective assistance of trial counsel. See Pet. ¶ 22A; Traverse [Tv.], Ground I. This claim is exhausted and properly before the Court.

III. General Principles Applicable to ...


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