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Jessie J. v. Harold D. Graham

November 17, 2011

JESSIE J. COOPER, PETITIONER,
v.
HAROLD D. GRAHAM, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Jessie J. Cooper ("Cooper" or "Petitioner") has filed a pro se habeas corpus petition pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his federal constitutional rights. Petitioner is incarcerated pursuant to a judgment of conviction entered against him on September, 2003, following a jury trial, on charges of intentional murder and criminal weapons-possession.

II. Factual Background and Procedural History

Cooper was indicted with Terrance Washington ("Washington") on two counts of murder (intentional and depraved indifference) in connection with the shooting death of Kevin Hilliard ("Hilliard"). On the evening of January 31, 2003,*fn1 on Avenue D in the City of Rochester, Hilliard was seen arguing loudly with two men--one tall and thin, and one heavy-set by area resident Lisandra Barbosa ("Barbosa"). Barbosa heard several shots and went outside where she saw Hilliard drop to the ground and the thin man and the heavy man get into a car and drive away. Barbosa explained that there was a lapse between the shots, but neither of the men returned to the car before the second shot was fired.

Officer Daniel Zimmerman, executing an unrelated search warrant at 9 Miller Street later that evening, saw Cooper (a heavy-set man) run into the basement. Cooper was apprehended hiding behind a hot-water heater with a .22 caliber bullet in his front pants-pocket.

Cooper was brought to the hospital for treatment of some cuts sustained on his hand. While there, Cooper signaled Officer Efrain Gonzalez to come over to him. Cooper told Officer Gonzalez that he did not want to go to jail, that he wanted to talk to the officer, that he had something very important to say about a shooting that had occurred earlier that night. At that point, Officer Gonzalez stopped Cooper because he was aware of the shooting and wanted another officer present.

Investigator Anthony Campione was summoned and, at Cooper's request, the men went outside the emergency room so Cooper could have a cigarette and talk to them. Cooper announced that before saying anything, he wanted a guarantee from the police that he would be released. Investigator Campione replied that he could not do that since Cooper was under arrest on weapons-possession and drug charges based on what the police discovered at 9 Miller Street. Cooper, however, continued talking and said that he had been with "Jamal" (i.e., Jamal Williams) and "TT" who had been involved in the shooting. Cooper denied any involvement in the shooting but stated that the police could find another gun in the basement at 9 Miller Street. The police subsequently found a .32 caliber handgun with duct tape on it behind the hot-water heater in the basement at 9 Miller Street. A latent fingerprint on the duct tape matched Cooper's fingerprints.

After he was released from the hospital, Cooper was taken to the police station. Before talking to Cooper again, Investigator Campione issued Miranda warnings, which Cooper waived. Cooper then proceeded to give an oral statement to Investigator Campione. Cooper's last contact with Campione was 1:50 a.m. on the morning of February 1, 2003.

At 9:20 a.m., Officer Randall Benjamin had his first contact with Cooper and explained that they needed to interview some additional people before speaking with Cooper. Eventually, at 2:55 p.m., Officer Benjamin began reducing Cooper's statement to writing, although Cooper eventually refused to sign it.

At Cooper's trial, the prosecution's theory was that both Washington and Cooper injured Hilliard by shooting him in the knee with a .22 caliber handgun and in the head with a .32 caliber handgun. According to the prosecution, the .32 caliber handgun found in Cooper's possession was taken from Hilliard before he was shot.

Laverne Lovett ("Lovett") testified that she was at 9 Miller Street with Cooper on the night of the search warrant's execution, and that she saw him with a gun covered with duct-tape. (As noted above, Hilliard was shot with a .32 caliber gun, and a .32 caliber gun with duct tape and a fingerprint matching Cooper's was found at the scene of his arrest.) Lovett also testified that Cooper had a long-handled brown gun. Lovett heard Cooper call Washington a "punk" for shooting someone in the leg on Avenue D and forcing Cooper to "take the nigger out." T.378.

Through Investigator Campione, the jury heard the substance of Cooper's statement at the hospital in which he admitted bringing bullets to Jamal Williams ("Williams") and being with Williams and Washington in a sport-utility vehicle ("SUV"). They stopped the car on Avenue D after Washington spotted Hilliard. T.465, 470-71. Cooper stated that Williams put on his (Cooper's) blue sweatshirt and got out of the vehicle with Washington. Cooper watched from the car as both men approached Hilliard carrying guns. T.471-72. Cooper told Investigator Campione that he heard some gunshots but did not see who fired them. T.472. The .22 caliber gun was tossed into the backseat where Cooper was sitting, and he tossed it into front seat. T.472. Cooper insisted that he had no idea what Williams and Washington were going to do.

Cooper told a different story to Officer Benjamin at the police station, admitting that he knew Washington would use a gun to scare people with whom he had a problem. T.534. Later, Cooper changed his story to say that he had gotten out of the car, that he had seen Washington shoot Hilliard, and that Washington had come back to the car and asked Cooper to give him the .22 caliber revolver, which Cooper did. T.535. Cooper also admitted that during the shooting he was standing near Washington instead of standing near the SUV. Cooper told Officer Benjamin that he had seen Washington take a gun away from Hilliard (the victim) before the shooting and give it to him (Cooper). T.539. Cooper insisted that the .32 caliber revolver belonged to Washington, although he admitted handling it before the shooting. T.543.

Cooper testified in his own behalf and also called one witness, Jamal Williams. On the night of the shooting, Williams, Cooper, and Washington were driving around, getting high. Washington spotted Hilliard, Cooper with whom he had a "beef"; Cooper, however, testified that he had never seen Hilliard before. T.628.

Washington pulled over, and, taking the .32 caliber gun with him, walked up to Hilliard and began shoving him. When Hilliard reached into his pocket, Cooper got out of the car and approached the two men. Cooper testified that he tried to calm Washington down, but Washington pushed Hilliard to the ground, ...


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