The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se Petitioner Samuel Dunwoody ("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 17, 1993, in New York State, Supreme Court, Erie County (Hon. Joseph S. Forma), convicting him, after a jury trial, of Murder in the Second Degree (N.Y. Penal Law ("Penal Law") §§ 125.25 (1), 20.00). Petitioner was sentenced to an indeterminate term of imprisonment of twenty-two years to life.
For the reasons stated below, habeas relief is denied and the petition is dismissed.
II. Factual Background and Procedural History
Under Indictment No. 91-0848-001, Petitioner, along with co-defendants Terrance Davis ("Davis") and Brenton Beckford ("Beckford"), was charged with one count of Murder in the Second Degree (Penal Law §§ 125.25 (1), 20.00) and one count of Criminal Possession of a Weapon in the Second Degree (Penal Law §§ 265.03, 20.00). The charges against Petitioner arose out of his participation in the shooting death of John Parham ("Parham" or "the victim") in a parking lot outside a motel in the City of Buffalo, New York on April 15, 1991. Trial Trans. [T.T.] 5.
Then seventeen-year-old Nyree Zelenka ("Zelenka") met Davis (a/k/a Morrese Green or Moe) in April 1991. T.T. 383, 435. Soon thereafter, Zelenka agreed to go to a party with Davis in Buffalo, which required a car trip from her home in Rochester. T.T. 382-385. Davis drove to Rochester to pick up Zelenka along with Beckford (a/k/a "Larry") and Petitioner (a/k/a "Lite") who were in the car with Davis. Zelenka had met Petitioner previously and knew him as Davis's friend. T.T. 385-386. The group did not attend the party as planned, and Zelenka stayed that night at Davis's home in Buffalo. T.T. 386-387.
The following day, Zelenka asked to be returned home to Rochester, but Davis told her a ride was not available because the window of his Jeep was being fixed. T.T. 387-388. During the following three or four days while at Davis's home, Zelenka saw Beckford handle a "long" gun "with a clip that [went] underneath the handle part." T.T. 389-391.
One morning, Zelenka awoke to find that Davis was not at home. T.T. 391-392. At approximately 10:00 a.m., Davis returned home and, in the presence of Zelenka, Beckford, and Petitioner, stated that he had "seen the mother fucker that shot his Jeep window." T.T. 392-393. Petitioner and Beckford asked Davis who he was referring to, and Davis replied that he was referring to "the guy that shot his window out." Davis then stated that he was "going to kick his ass," and Petitioner and Beckford indicated that they were going to go with Davis. T.T. 393-395. All four individuals then got in Davis's Jeep and left Davis's home. Davis was driving the vehicle. T.T. 395. Zelenka testified that she saw Beckford with the gun before the group left the house, and that he carried the gun in the waist area in the back of his pants. T.T. 402-403.
After traveling for approximately five minutes in the Jeep, the four individuals arrived at the Red Carpet Motel. T.T. 395. While traveling to the motel, Davis stated that he "was going to put lead in his ass because he didn't have time to mess up his hands." T.T. 396-397. Davis drove into the motel parking lot and got out of the Jeep, leaving the other three individuals behind. T.T. 396-398. When Davis got out of the Jeep, Petitioner moved over to the driver's seat. T.T. 397-398. Davis returned to the Jeep shortly and stated, "he was still there." T.T. 398. Beckford got out of the Jeep and followed Davis to the back of the motel. T.T. 398-399. Before going to the back of the motel, Davis told Petitioner to park the Jeep on the other side of the motel, which Petitioner did. T.T. 399-400.
While waiting in the Jeep, Petitioner looked at his watch several times and then asked Zelenka "to go see what's taking Mo and Larry so long." T.T. 400. Zelenka got out of the Jeep and walked to a fence by the parking lot and saw Davis and Beckford standing in the lot. T.T. 401-402. Zelenka returned to the Jeep and told Petitioner what she saw. T.T. 403. Petitioner and Zelenka continued to sit in the Jeep until Petitioner saw a man walking toward the Jeep. Petitioner indicated to Zelenka that the man looked familiar and that he "looked like one of those guys that be hanging with the guy that was in the motel." T.T. 404. Petitioner got out of the Jeep and confronted the man. T.T. 404-406. After the confrontation, the man ran away. T.T. 405-406.
Petitioner got back into the Jeep and turned on the music. Because the music was loud, an "older man" came out of a house nearby and asked Petitioner to move the Jeep. T.T. 406-407. Petitioner did not move the Jeep, but turned the music down. T.T. 407. A short while later, Petitioner moved the Jeep closer to the motel and kept the engine running. T.T. 407-408. Thereafter, Zelenka heard popping sounds and saw Davis and Beckford running from the direction of the parking lot toward the Jeep. T.T. 409. Beckford was carrying something in "white wrapping." T.T. 410. Petitioner asked Zelenka to open the back of the Jeep, which she did, before getting into the backseat. T.T. 411. Beckford got into the back of the Jeep and Davis got into the front passenger seat, and directed Petitioner to drive. T.T. 410-412.
Petitioner drove as he was instructed to do, slowing down when told to do so by Davis. T.T. 412. While in the Jeep, Davis and Beckford bantered about who shot when and how. Davis indicated that Beckford "didn't get him the first time," and Beckford agreed, indicating that "he missed him the first time, he got him the second time." T.T. 412-413. Beckford also stated that Davis "finished him" and Davis agreed, stating that he [Davis] "got the best of him." T.T. 413. Petitioner, referring to the confrontation he had with the man in the parking lot, told Davis and Beckford that "some other guy be hanging on the corner" and "it was like two more he had to get." T.T. 414. Zelenka then asked Davis if he was proud of himself, to which he responded, "you damn right." T.T. 414. Parham, who had been shot in the side and in the head, died sixteen days later as a result of his wounds. T.T. 165.
After the shooting, the four individuals drove to a girl's home where Zelenka saw that Beckford had a gun wrapped in a white t-shirt. T.T. 415-416. The four individuals left the girl's home later that night and returned to Davis's home. T.T. 416-419. Zelenka left the following night on a bus headed for Rochester with Davis and Petitioner. T.T. 420-421. About one week later, Zelenka ...