The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se Petitioner Nathaniel B. Washington ("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 August 25, 2003, in New York State, Supreme Court, Erie County (Hon. Russell P. Buscaglia), convicting him, after a jury trial, of Manslaughter in the First Degree (N.Y. Penal Law ("Penal Law") § 125.20 ), Criminal Possession of a Weapon in the Second Degree (Penal Law former § 265.03 ), and Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02 ). Petitioner was sentenced to twenty-five years imprisonment for the manslaughter conviction, fifteen years imprisonment for the second degree weapons conviction, and two and one-third to seven years imprisonment for the third degree weapons conviction. The sentences were ordered to run concurrently with each other.
For the reasons stated below, habeas relief is denied and the petition is dismissed.
II. Factual Background and Procedural History
Under Indictment No. 01-2203-S02, Petitioner was charged with Murder in the Second Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. See Ind. No. 01-2203-S02 dated 10/25/02 at Resp't Ex. A. The charges arose from an incident that occurred in the City of Buffalo, New York on October 20, 2001, wherein Petitioner shot and killed Robert Gamble ("Gamble" or "the victim").
On the date of the crime and the night prior thereto, Petitioner, his girlfriend (Raquel Calhoun ("Calhoun")), and two of his friends, Michael Ott ("Ott") and Nya Smith ("Smith"), had been drinking at several clubs. Trial Trans. [T.T.] 439. The four friends drove in Calhoun's white Ford Explorer to an all-night restaurant to get something to eat. T.T. 456. Calhoun wore a pink shirt, pink boots, pink belt, and carried a pink purse. T.T. 108, 294. Petitioner and Ott exited the vehicle and Petitioner went into the restaurant to order food while Calhoun and Smith remained inside the vehicle. T.T. 463. When Petitioner exited the restaurant, he noticed Ott talking to Gamble. T.T. 465-466. Gamble and Ott approached Petitioner, and Petitioner asked Gamble if he was looking for him, to which he responded he was not. T.T. 300. Petitioner then walked around the corner with Ott and Gamble. About a minute later, several gunshots were fired. T.T. 301.
Smith, who was still sitting in the vehicle, saw one or two flashes, and saw Petitioner's arm in the air. T.T. 104. Shortly thereafter, Petitioner and Ott returned to the vehicle and Petitioner told Calhoun to drive off. Petitioner stated that "he" --- referring to the victim --- was about to shoot "Mike." T.T. 105.
Gamble was hit with four bullets from a Colt .45 semi-automatic handgun, and died at the scene of the crime. Dr. Sung Ook Baik, who subsequently conducted Gamble's autopsy, testified that Gamble died from multiple gunshot wounds to the back. T.T. 196, 369-370, 403, 405-406.
Shawn Ashford ("Ashford"), a friend of Gamble's, after hearing the gunshots, ran to the scene and saw Gamble on the ground. He held Gamble until police arrived. About fourteen feet away from the victim's body, the police found an unloaded .25 caliber weapon with a pink handle and pink plastic grips. T.T. 190-193, 230, 234, 235, 338. While Gamble's body was being moved by a morgue attendant at the scene of the crime, an unloaded .25 caliber pistol fell out of Gamble's underwear. T.T. 196-199, 340. Neither of these .25 caliber guns had been fired. T.T. 250.
Meanwhile, Calhoun drove down Main Street and turned onto Niagara Falls Boulevard. Calhoun pulled into a restaurant parking lot a few lots away from a motel. All of the occupants --- except Calhoun --- exited the vehicle and began walking away from it when Town of Amherst Police Officer Michael Camilleri, who had received a radio dispatch from Buffalo Police with respect to the shooting, pulled up behind the Ford Explorer. Officer Camilleri ordered the three individuals back to the vehicle and to put their hands on the vehicle. He also ordered the driver out of the vehicle. Officer Camilleri radioed for back-up and approximately three to four minutes later, Buffalo police officers arrived. Petitioner, Calhoun, Smith and Ott were frisked, handcuffed and placed in separate police cars. One of the officers directed his flashlight into the white Ford Explorer and discovered a gun in the vehicle's cargo area. Hr'g Mins. [H.M.] of 01/23/02 5-13; T.T. 139-150. This gun was determined to be the same Colt .45 that was used to kill Gamble. T.T. 167-168, 203. Subsequent examination of the gun revealed that the hammer was back, the magazine was gone and no cartridges were in the chamber. T.T. 203. The empty magazine was discovered outside on the vehicle's rear passenger running board. T.T. 168, 204-205. Officer Camilleri testified that Petitioner had exited the vehicle from the passenger side. T.T. 148. The police also discovered a pink purse in the backseat, containing items that belonged to Calhoun, as well as a health card that belonged to Petitioner. T.T. 212. As Petitioner sat handcuffed in the police car, Officer John Abrams of the Buffalo Police Department overheard Petitioner muttering to himself. According to Officer Abrams, Petitioner stated, "I blasted the fool, he had it coming." T.T. 267. Petitioner, who testified at trial, stated that he did not remember making this statement. T.T. 483.
At trial, Petitioner admitted to shooting Gamble, but maintained that it was done in self-defense. Petitioner testified that when he encountered Gamble at the restaurant, Gamble appeared high and drunk and "was acting crazy." T.T. 470. According to Petitioner, as he and Gamble walked around the corner of the building toward Main Street, Gamble repeatedly asked Petitioner what Petitioner was doing in Gamble's neighborhood. T.T. 471-473. Petitioner testified that Gamble then pulled out a gun, cocked it, and started to point it up at him. Petitioner testified that he heard a click and feared that Gamble was going to shoot him. T.T. 475-479. Petitioner testified that he then pulled out his own loaded Colt .45 and fired it until it was empty because he feared for his own life; there were six rounds in the magazine. T.T. 479-480, 185. According to Petitioner, he and Ott then ran back to Calhoun's vehicle, and told Calhoun to drive away quickly. T.T. 480. Petitioner testified that Calhoun decided to head toward a motel on Niagara Falls Boulevard so that they could figure out what to do next. T.T. 481. Petitioner further testified that Calhoun stopped in a restaurant parking lot near a hotel on Niagara Falls Boulevard and that he then exited the vehicle. Shortly thereafter, an Amherst Police patrol car pulled into the parking lot. T.T. 147-148.
A jury trial was conducted over the course of several days before the Hon. Russell P. Buscaglia. Prior to jury deliberations, the trial court informed the jury that the three weapons in evidence would be sent to the jury room, and that the weapons would have trigger locks on them, rendering them inoperable. The trial court instructed the jurors that if they wished to have the trigger locks removed in order to "experiment" with the weapons, the foreperson should submit a note to the court requesting same. During deliberations, however, and without having submitted such note or otherwise advising the court, the jury foreperson requested a court deputy to remove the trigger lock and pull back the slide of People's Exhibit Number 60 (a .25 caliber pistol) so that the jury could hear the sound that was produced. The deputy complied with that request. The foreperson also asked the deputy to show the jury where the clip release is located, and the deputy did so. The deputy then replaced the trigger lock and left the pistol in the jury room. He had no conversation with the jurors relative to the demonstration. The deputy informed the court what had occurred during an off-the-record conversation held in chambers in the presence of the attorneys. The court then placed the issue on the record, explaining that if the jurors had sent a note, the jurors themselves would have been permitted to test the slide after the trigger lock was off, but that the court did not intend to permit a demonstration by the deputy. The prosecutor objected to the demonstration that had occurred, and Petitioner's attorney did not. The court gave no additional instructions regarding the incident. T.T. 828-836.*fn1
Petitioner was found guilty of first degree manslaughter (under the first count of the indictment) and both of the counts charging weapon possession. T.T. 847. He was subsequently sentenced to twenty-five years for the manslaughter conviction, followed by a five-year period of post-release supervision. He was also sentenced to fifteen years for the second degree weapon possession conviction, followed by a five-year period of post-release supervision, and to two and one-third to seven years for the remaining weapon possession conviction. The sentences were ordered to run concurrently with each other. See Certificate of Conviction-Imprisonment at Resp't Ex. A.
The Appellate Division, Fourth Department unanimously affirmed the judgment of conviction on February 2, 2007. People v. Washington, 37 A.D.3d 1131 (4th Dep't 2007); lv. denied, 8 N.Y.3d 992 (2007).
On or about April 21, 2008, Petitioner moved, pursuant to N.Y. Crim. Proc. Law ("CPL") § 440.10, to have the judgment of conviction vacated. That motion was denied, and leave to appeal was denied. See Resp't Ex. D.
This habeas corpus petition followed, wherein Petitioner seeks relief on the following grounds: (1) that an unsupervised communication between court personnel and the jury denied him of his right to due process and a fair trial; (2) ineffective assistance of trial counsel; and (3) erroneous jury instructions. See Pet. ¶ 12, Grounds ...