The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Luis Martinez ("Martinez" or "Petitioner"), proceeding pro se, seeks a writ of habeas corpus under 28 U.S.C. §2254 challenging his state custody pursuant to his convictions on two counts of first degree robbery and one count of third degree criminal possession of a weapon. For the reasons set forth below, the Petition is dismissed.
II. Factual Background and Procedural History
At 8:00 p.m. on May 10, 2003, the store manager at the Family Dollar Store, located at 1380 Norton Street in the City of Rochester, James Tolleson ("Tolleson") locked the doors to the store. There were two other employees inside the store, Richard and Kitty Pratt.
About twenty minutes later, as Tolleson attempted to "cash out" the register, two men came bursting out of the back room of the store with "mop heads" on their heads, armed with guns, and screaming for everyone "to get down on the floor". One of the firearms appeared to be a rifle.
One of the assailants, later identified as Petitioner, pushed Tolleson to the ground, placed a gun to his head, and asked if he knew what Petitioner was there for. Tolleson, replied, "I said the money. He said, it's not yours, you don't have to worry about it. No sense in being a hero. You know what happens to a hero, he gets a bullet in his head". Petitioner relieved Tolleson of his pager and store keys before searching his pockets for money.
Petitioner then ordered Tolleson to crawl into the back office area and open the store safe. The co-defendant forced Richard Pratt to do the same. While Tolleson and Richard Pratt were being held at gun point, Kitty Pratt remained hidden as the robbery unfolded.
After Tolleson complied with Petitioner's direction to remove the three bags containing cash from the safe, Petitioner ordered Tolleson to crawl to the front of the store to get any cash which might still be in the front registers. As they were approaching the middle register, Petitioner made him stop. Tolleson felt a gun pressed to his head, and "all of the sudden" Petitioner disappeared. As Petitioner was running through the back door he yelled to his accomplice in the back of the store. Tolleson looked through the front window and saw a police officer with his gun drawn.
Once Tolleson heard the "back door alarm go off", he located Richard Pratt, and the two ran out the front doors.
At about 8:30 p.m. the police became aware of a robbery in progress based on a 911 call made by a customer, Matthew Doward ("Doward"), who had arrived at the Family Dollar Store, unaware that it was closed or that it was being robbed. As he was sitting in his car to answer a cell phone call, Doward noticed one of the clerks with his back to the window "flaring his hands around . . . erratically." To the clerk's left, Doward saw a "gentleman with a wig on his head, well actually a mop on his head and an army jacket and he had a rifle."
Within fifteen seconds of the radio transmission, police officers arrived on the scene. After speaking with Doward, Officer Weech hid behind a motor vehicle about twenty feet away from the front door of the store. From there, Officer Weech observed Tolleson crawling on the floor while Petitioner, dressed in a Army-type jacket and disguised with a mop head covering his face, stood over him brandishing a shotgun. Petitioner appeared to have noticed Officer Weech because he "took off" towards the rear of the store.
Petitioner was observed fleeing the scene by Officer Wilson, who had arrived within minutes of the broadcast and was positioned on Branch Street, approximately one block from the rear of the Family Dollar Store. From that location Officer Wilson watched Petitioner, who was wearing a green Army jacket, blue sweat pants, and blue boots running westbound, at a "brisk" pace in a"crouched down" posture, through various residential yards. When Officer Wilson caught up and came face to face with Petitioner, Petitioner ran away.
During the ensuing foot chase, Petitioner took off his green Army jacket and threw it to the ground. He eventually was located near a door at the corner of a house on Cynthia Lane, trying to secrete himself on a cement patio slab.
Officer Wilson testified that during his pursuit of petitioner, there was "no one else running or walking around" in the area. Petitioner was secured and placed in Officer Wilson's patrol car to be transported to the scene of the robbery for a show-up identification procedure.
While seated in the patrol vehicle, a radio transmission went out that a canine dog and officers were looking for guns in the area. Without being questioned, Petitioner spontaneously blurted out that the police did not have to search for a gun because the gun was plastic and he had already broken it up. Before leaving the area, Officer Wilson retrieved the green Army jacket which Petitioner had discarded.
Upon his return to the Family Dollar Store, prior to any identification procedure, Petitioner offered to tell Investigator Friday about something "big" which was going to happen that night, apparently in an attempt to avoid participation in the show-up.
During the show-up procedure, Investigator Friday had Tolleson, Richard, and Doward view Petitioner and his co-defendant separately. Tolleson told the police he could identify Petitioner as his assailant by his shoes. Richard Pratt identified Petitioner's pants as being the pants worn by the individual who had controlled Tolleson during the robbery. Finally, Doward identified Petitioner's Army jacket as the ...