The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner pro se Shane Craft ("Craft" or "Petitioner"), currently incarcerated for his conviction for first degree gang assault, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Also pending before the Court is Craft's motion to stay the petition in order to return to state court to exhaust claims of ineffective appellate and trial counsel. For the reasons that follow, the petition is dismissed and the motion to stay is denied with prejudice.
Petitioner and his co-defendants (James Reed ("Reed"), Paul Dawson ("Dawson"), Charles Magaddino ("Magaddino"), David Kennerkneckt ("Kennerkneckt")) were charged with depraved indifference murder and gang assault in connection with the death of Nicholas Kwasniewski ("Kwasniewski" or "the victim") in the City of Niagara Falls on June 4, 2005. Reed, Dawson, and Magaddino elected to plead guilty and cooperated with the district attorney's office with regard to Petitioner's prosecution. The trial court dismissed the depraved indifference murder count against Petitioner before his trial began.
The prosecution argued that the Krasniewski murder was done in retaliation for injuries Craft sustained in March 2005, during a drug-deal. While Petitioner was consummating a marijuana sale to four men, his skull was fractured when struck with a metal pipe and he was robbed of a gold chain. One of the four alleged assailants was Nick Payne ("Payne"), a former friend of Petitioner's. The incident was reported to the police, who concluded that the robbery was a drug-deal gone bad; no arrests were made.
About two months later, Petitioner was interviewed by a victim's assistance advocate. Upset about the lack of any arrests, Petitioner stated that if something was not done soon he would take matters into his own hands. Petitioner repeated his threats of retaliation against Payne to one of his teachers and his guidance counselor. When his teacher asked Petitioner not to do anything, he replied that he would not have to do it, and that he had friends who would take care of it for him. This conversation occurred on June 2nd, two days before the victim was killed.
On June 4, 2005, Petitioner's friend Amanda Fero ("Fero") thought she saw Payne at a gray house about a block and a half from her own house. Fero called Petitioner and told him that she had just seen Payne.
Petitioner and Kennerknecht traveled in Petitioner's Cadillac to Reed's house. Dawson and Magaddino were also there. Petitioner told the group that Fero had called and told him where Payne was living. Petitioner also told the group that "he wanted [them] to go with him so he could -- he could fuck Nick up."
The five men then traveled in Petitioner's Cadillac and drove to Fero's house. On the way, everyone but Dawson took their shirt off, leaving their white T-shirt on. According to Magaddino, "whenever somebody gets in a fight or plans on fighting, it's habit -- habit to take off your overshirt so you don't ruin it."
They all walked several blocks down 19th Street to where Fero had last seen Payne. During the walk, there was conversation to the effect that the four co-defendants were going to "watch [Petitioner's] back."
Reed and Magaddino stopped in front of the house and the rest of the group walked past three more houses. Magaddino screamed out, "Nick!" A man later identified as Kwasniewski came out, walked off the porch onto a concrete sidewalk that led to the front sidewalk, and talked with Magaddino. The victim asked Magaddino if he had lost his dog. Magaddino told him no, but he would like to talk to him. The victim said sure and walked off the porch and down the sidewalk towards the fence that bordered the street sidewalk and the front yard of the house. The victim was about 5 to 10 feet away from the fence when Petitioner put his right hand on the fence and jumped over.
After Petitioner jumped the fence, he said, "[C]lose enough or this will do, something along them [sic] lines." The victim said, "[Y]ou don't know me or I don't know you, something like that". After that exchange, Petitioner punched the victim several times in the face. The victim stumbled back after the blows and threw no punches.
After Petitioner threw the first several punches, Magaddino opened the gate, entered the yard and began punching the victim. Magaddino testified that he threw the punches because he "took that to be the person that hit [Petitioner] with a lead pipe." When Magaddino started to hit the victim, Magaddino was to the side of the victim and Petitioner was in front of the victim. Reed and Kennerkneckt also entered the yard and began hitting and punching the victim. Having thrown the first two punches, Petitioner stepped back and stood either on one side of the gate or the other. The victim slumped to the ground with his back to the fence and Magaddino and Reed kicked him.
Dawson then yelled "let's go" and everybody ran out of the yard and back to Petitioner's Cadillac. Petitioner did not drive because "he didn't want to be seen."
During the drive to Reed's house, Petitioner was "gloating" about what happened and was "saying stuff like 'we got him.'" Dawson asked Petitioner if the victim was one of the guys who had jumped him and Petitioner said no. When Dawson asked Petitioner why he had just attacked Krasniewski, Petitioner replied that the victim "obviously" knew Payne and deserved everything he got. When Dawson asked Petitioner what would happen if the person was really hurt, Petitioner replied "no one cared when they beat me in the head with a lead pipe so why would they care about this."
At Reed's house, Petitioner was complaining that he had cut his hand when he jumped the fence. His friends suggested that he go to the hospital to get stitches, but Petitioner just wrapped his hand in a gauze bandage. Petitioner admitted to Matthew Fickes, who was present at Reed's house, that he had hopped the fence, cut his hand, and hit the victim two or three times.
DNA evidence established that Petitioner's blood was at the crime scene. The medical examiner testified that the victim's death was caused by blunt force trauma with ten separate areas of head injury.
The jury returned a verdict convicting Petitioner of first degree gang assault. He was sentenced to the maximum term of 25 years to life in prison.
A. Legal Insufficiency of the Evidence
Petitioner argues there was insufficient evidence to convict him of first degree gang assault because his co-defendants' testimony allegedly was coerced and uncorroborated, and failed to state that Petitioner actually participated in the gang assault.
When reviewing a state court conviction on these grounds, a federal habeas court considers "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). Where, as here, a challenge to the sufficiency of the evidence is based upon a witness's alleged lack of credibility, the petitioner's burden becomes insurmountable because section 2254 "gives federal habeas courts no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them." Marshall v. Lonberger, 459 U.S. 422, 434 (1983). The weight given to a witness's testimony is a question of fact to be determined by the jury, Mason v. Brathwaite, 432 U.S. 98, 116 (1977), and a district court sitting in habeas review must resolve all credibility issues in the verdict's favor and cannot second-guess the jury's determinations. United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993).
In any event, there is ample testimony in the record corroborating his accomplices' version of the murder: three witnesses testified that Petitioner sought a confrontation with the victim; he was wounded when he returned to his house ...