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Terry Washington v. Gary Fillion

February 22, 2012


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


I. Introduction

Pro se Petitioner Terry 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 6, 2004, in New York State, County Court, Monroe County (Hon. Patricia D. Marks), convicting him, after a jury trial, of Murder in the Second Degree (N.Y. Penal Law ("Penal Law") § 125.25(2)) (depraved indifference murder) and Assault in the Second Degree (Penal Law § 120.05(2)). Petitioner was sentenced to an indeterminate term of imprisonment of twenty-two years to life on the murder conviction and to a determinate term of imprisonment of seven years on the assault conviction, with five years post release supervision.

II. Factual Background and Procedural History

Petitioner was charged in a five-count indictment with Murder in the Second Degree (Penal Law § 125.25[1]) (intentional murder), Murder in the Second Degree (Penal Law § 125.25[2]) (depraved indifference murder), Criminal Possession of a Weapon in the Second and Third Degrees (Penal Law §§ 265.03[2], 265.02[4]), and Assault in the Second Degree (Penal Law § 120.05[2]). The charges arose from a shooting incident that occurred on the evening of September 23, 2001 on Mead Street in the City of Rochester, New York. See Monroe County Ind. No. 00645, dated 12/19/03 at Resp't Appendix A.

On June 14, 2004 a jury trial commenced in the Monroe County Court before the Hon. Marks.

Robert Rogers ("Rogers") testified that, on the afternoon of September 23, 2001, he was at home at 208 Avenue A. Rogers' girlfriend, Petitioner, and Petitioner's cousin's children were present. Brenda Palmo ("Palmo"), Petitioner's cousin, came to Rogers' home and, according to Rogers, she was crying and upset, and indicated to him and Petitioner that "the dude around the corner had slapped her in the face." T.T. 296, 297. Palmo asked Rogers and Petitioner to take a ride with her to see the man that had slapped her. T.T. 298-299. Rogers testified that he then saw two African American men, whom he did not recognize, come from around the corner and stand in front of his home. The two men threatened him, Petitioner, and Palmo. T.T. 300, 303. Rogers declined to go for a ride with Palmo and advised Petitioner not to get involved. Petitioner then left with Palmo. T.T. 301. Rogers testified that in November or December of 2003, Rogers saw Petitioner and they talked about the events of September 23, 2001. At that time, Petitioner stated to Rogers that "[Rogers] had no evidence . . . . No gun, no evidence, and that the victims was dead."*fn1 T.T. 301-302. On cross-examination, Rogers testified that while Petitioner was at 208 Avenue A on September 23, 2001, he did not observe Petitioner in possession of a gun, did not see a gun in the home, and that Petitioner never displayed a weapon to him. T.T. 306.

Justin Pearson ("Pearson") testified that, on September 23, 2001, he was with his brother, Cornell Douglass ("Douglass"), and Derrick Smalls ("Smalls") drinking and smoking marijuana on Mead Street when a car pulled up with Palmo, Petitioner, and another man in the car. T.T. 277, 285. Palmo, who had been driving, exited the vehicle and approached the group, at which point Smalls "smacked" the beer she was carrying out of her hand. T.T. 277. Smalls then approached the front passenger side of the vehicle where Petitioner was seated and began to hit Petitioner. T.T. 277-279, 289-290. Douglass walked behind Smalls. According to Pearson, Smalls dove into the car in the process of striking Petitioner and Petitioner "[p]ut [Smalls] in like a head lock or something." T.T. 278-290. Douglass, who was still positioned behind Smalls, grabbed at Petitioner. The man in the back seat of the car then got out and joined in the melee. T.T. 277-279. Pearson testified that he then heard a gunshot and ran away and later met up with Douglass, who indicated to him that he had been shot. T.T. 279. Pearson testified that he did not observe any guns at any point throughout the incident. Pearson eventually returned to the scene of the crime and observed Smalls laying face down in the street. T.T. 283.

Christine Smith ("Smith") testified that, at approximately 7:30 p.m. on September 23, 2001, she was sitting in her kitchen at

43 Mead Street when she heard two gunshots. Smith testified that she ran to find her sister and then rushed to her front door to see what had happened. Smith testified that she saw an African-American male running down Mead Street toward Remington Street. She called 911 and then went outside. Smith testified that she walked down off her porch and saw an African-American woman kneeling on the ground over an African American male who was lying face down in front of Smith's hedges. T.T. 168-170.

Officers Jorge Perez and Brian Sextone of the Rochester Police Department ("RPD") arrived shortly after the 911 call. Officer Perez testified that, upon arrival at the scene, he observed a black male lying face down on the ground on the sidewalk with what appeared to be a gunshot wound to the man's upper left back. T.T. 184-185. Emergency personnel arrived shortly thereafter and took the man, who was identified as Smalls, to the hospital where he died. T.T. 183-187. While at the scene of the crime, Officer Sextone learned that a second individual by the name of Cornell Douglass had also been shot. Officer Sextone testified that he followed emergency personnel to Strong Memorial Hospital where Douglass was taken for treatment. At the hospital, Officer Sextone observed wounds to Douglass' left arm and left hip. T.T. 193-196.

Evidence technicians from the RPD subsequently arrived at Mead Street and took photographs and measurements and searched the area for physical evidence. They recovered projectile pieces or bullet fragments at two different locations on Mead Street near the shooting. T.T. 244, 249. They also secured a vehicle located at 232 Whitney Street in the City of Rochester, which was involved in the incident. Petitioner's fingerprints were found in the front passenger interior of the vehicle as well as the outside of the vehicle. The victim's fingerprints were also found on the exterior of the vehicle. T.T. 223-231.

Dr. Thomas Smith ("Smith"), the Chief Medical Examiner for the Monroe County Medical Examiner's Office, performed the autopsy on Smalls and concluded that Smalls died from a single gunshot wound to the upper chest which entered through Smalls' back, traveling back to front, left to right, and then slightly down and through both lungs, exiting from the victim's right chest near his armpit. T.T. 204, 211-213. On cross-examination, Smith testified that his opinion with respect to the angle of the bullet that killed Smalls was made "[w]ithin reasonable medical certainty," although "reasonable minds [could] differ as to the direction of [the] bullet." T.T. 217.

In November 2003, police located Petitioner in Elkhart, Indiana, where they took him into custody and questioned him about the September 23, 2001 homicide. Initially, Petitioner denied being in Rochester around the time of the homicide, and denied any involvement in the death of Smalls. After being confronted by the police with information placing him at the scene of the crime, Petitioner changed his story. Petitioner eventually told police that he had driven to Mead Street on the day of the shooting with his cousin Brenda, her two young children, and his friend Tyrone. Petitioner was in the front passenger seat, Brenda drove the vehicle, and Tyrone was in the back seat with Brenda's two children. Brenda got in an argument with various individuals on Mead Street, and then a man came up to the front passenger side of the vehicle and began to punch him through the window. Petitioner told police that the individuals on Mead Street dragged Tyrone out of the car and that he and Tyrone believed one of the individuals in the group had a gun. Petitioner told police that he then got out of the vehicle and ran away, and it was not until some time later that he learned of the shooting. Police continued to question Petitioner and took a written statement from him. In the process of doing so, Petitioner admitted that he was the shooter.

In his written statement, Petitioner stated that he was dragged out of the vehicle by two individuals and was getting punched, kicked, and dragged, when he saw one of the men drop a gun. Petitioner fought with one of the men who was standing between him and the car door. Petitioner explained that a struggle ensued and that the gun fell near the car door. At that point, he reached down, grabbed the gun, and then tried "to scare the dudes off by pointing the gun at them." Petitioner stated that one of the men grabbed his hand and Petitioner pointed the gun in the air and fired a shot to scare them. When the man continued to fight ...

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