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Charles E. Hathaway v. John Burge

June 28, 2011


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


I. Introduction

Pro se Petitioner Charles E. Hathaway("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 November 23, 2004, in New York State, Supreme Court, Monroe County (Joseph D. Valentino, J.), convicting him, after a jury trial, of Murder in the Second Degree (N.Y. Penal Law ("Penal Law") § 125.25 [1]) and Criminal Possession of a Weapon in the Second Degree (Penal Law former § 265.03 [2]). Petitioner was sentenced to an indeterminate term of imprisonment of twenty-five years to life.

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

II. Factual Background and Procedural History

The charges arise from a shooting incident that occurred on September 22, 2002 near 700 South Plymouth Avenue in Rochester, New York, wherein Bruce Coley ("Coley") was killed by a gunshot wound to the head.

Sakin Mohamed ("Mohamed"), the sole eyewitness to the crime, testified that on September 22, 2002, at approximately 1:10 a.m., he was sitting on the balcony above the store where he worked at 675 South Plymouth. Trial Trans. [T.T.] 635, 637. From this vantage point, he could see the parking lot of a Sunoco gas station where Coley, whom he knew as "Dees," was riding a bicycle. T.T. 639, 640, 722. Mohamed saw Petitioner come from between two buildings and begin shooting at Coley. T.T. 641, 643. Coley tried to escape in a van that was at the gas station, but he was shot while in the van. T.T. 643-644. Coley then got out of the van, at which point he was shot once again and fell to the ground. T.T. 644. Mohamed recognized Petitioner as a customer at his store, whom he knew as "7-Up." T.T. 650, 722-723.

On the day of the crime, Rochester Police Investigator John Dianni met with Mohamed and conducted two identification procedures. Hr'g Mins. [H.M.] of 05/19/04 18-19.*fn1 First, Investigator Dianni performed a "general MoRIS query," whereby he entered the suspect's description into a computer system that then, one at a time, displayed images of people who had been arrested and who matched that description. H.M. of 05/19/04 19. Mohamed viewed approximately 200 photographs in the MoRIS query, but did not identify the perpetrator in any of them. H.M. of 05/19/04 19, 30.

Mohamed then told Investigator Dianni that the perpetrator was a customer at the store where he worked, whom he knew as "7-Up." H.M. of 05/19/04 20, 32, 37. Investigator Dianni then searched another database for the moniker "7-Up," obtained the name of a possible suspect, and then included that person's photograph into a photo array. H.M. of 05/19/04 20, 33. Investigator Dianni showed Mohamed the array, telling him that the person he saw shoot Coley "may or may not be within the array, but just look at it." H.M. of 05/19/04 21. The array had six photographs, matching the description of a "male black, 6'3", approximately 250" in the range of 20-25 years old. H.M. of 05/19/04 21. Investigator Dianni did not speak to Mohamed as he viewed the array or suggest which photograph Mohammed should pick. H.M. of 05/19/04 22. Mohammed picked out Petitioner's photograph and stated that he was "7-Up," the man he saw shoot Cooley. H.M. of 05/19/04 22-23, 36.

When Petitioner was brought in for questioning almost one year later, on August 8, 2003, he waived his Miranda rights and spoke with investigators. H.M. of 05/19/04 67-68; H.M. of 06/22/04 13-15. Petitioner gave a written statement to police in which he admitted that, at approximately 11:00 p.m. the night before the shooting, he had an argument with Coley because they were both selling marijuana in the area. Petitioner claimed that Coley hit him from behind, causing him to fall to the ground and lose consciousness. T.T. 795. According to Petitioner, after he regained consciousness, he left, went home to bed, and woke up the next morning. T.T. 795-796. The next day, he left for Gary, Indiana. Petitioner claimed that he was not involved in the shooting and that he avoided contact with the police because he "thought [he] had a warrant for a child custody issue." T.T. 796.

At trial, Mohamed identified Petitioner in court as the shooter. T.T. 651. However, between his original identification of Petitioner as the perpetrator on the date of the shooting and his identification of Petitioner at trial, Mohamed vacillated, as discussed below, with respect to Petitioner's identity as the shooter.

The April 16, 2004 Letter to ADA Splain

By letter dated April 16, 2004, Mohamed told ADA Kristin Splain "that he wasn't sure anymore about who did the shooting. And then, upon further questioning with Ms. Splain, he indicated he was scared." Mins. of 10/7/04 3; see also Resp't App. C at 45. Thereafter, ADA Splain requested a protective order to prevent disclosure to the defense of Mohamed's personal information ...

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