The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge Dated: Rochester, New York
Pro se petitioner Dennis Bell ("Bell" or "Petitioner"), an inmate at Elmira Correctional Facility, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in Respondent's custody in violation of his federal constitutional rights. Bell is incarcerated pursuant to a judgment entered against him on June 7, 2006, in Monroe County Court of the New York State (Kehoe, J.), following a jury verdict convicting him of Murder in the Second Degree (New York Penal Law ("P.L.") § 125.25(1)), and Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03).
II. Factual Background and Procedural History
On June 11, 2003, shortly after 10:00 p.m., in Rochester, New York, Petitioner and an unidentified man approached Calvin Bryant ("Bryant"), a former friend of Petitioner's. Bryant was sitting in his front yard at 573 Maple Street with three of his friends. The men began to yell at each other, and Petitioner pulled out a gun and repeatedly fired at Bryant. Sparks from the gunfire illuminated Petitioner's face. Bryant's three friends ran away in different directions. T.287-89, 432-33, 444-46, 457, 464-65, 483-84, 490-92, 495, 499.*fn1
Despite having sustained a serious head wound, Bryant began running towards his house. Petitioner ran after Bryant, continuing to fire, and shot him in the head and neck. After reaching his house, Bryant collapsed inside from the fatal gunshot wounds.
T.318-20, 368-69, 373, 434-36, 467. Petitioner then ran across Maple Street, through a driveway between two houses, and out of the area. T.289, 468, 496.
Meanwhile, fourteen-year-old Melissa Rodriguez ("Rodriguez") was at home across the street from the shooting, at 566 Maple Street. There was a street light directly in front of her home.
T.278, 283-84. From her second-story bedroom window, she saw Petitioner and his companion approach Bryant and his friends, and also saw Petitioner shoot Bryant. T.279-81, 285, 295, 429, 463, 520. Rodriguez knew both Petitioner and Bryant, who was a friend of her brother's. T.279-80, 304. Rodriguez saw Petitioner's face during the shooting, and again as he ran across Maple Street and through the driveway alongside her house. T.289-90. Rodriguez did not report her observations to the police on the night of the shooting because she was reluctant to get involved. T. 291.
The other eyewitness, Yolanda Elliott ("Elliott"), was sitting on her porch at 562 Maple Street, which was on the same side of the street as Rodriguez's house. She was with her upstairs neighbor, Carrie Preston ("Preston"), along with their landlord and his friend. T.426-28, 459. From the porch, Elliott and Preston saw Petitioner shoot Bryant. Elliott knew both Bryant and Petitioner, who had socialized with her brothers. T.456-57, 461, 482. Elliott testified that she saw Petitioner's face and recognized him as he ran past her house and through the driveway alongside Rodriguez's house. T.469, 481-82, 489-90.
Elliott then called 911 on her cell phone from the porch. T. 470, 485. When the police arrived, Elliott did not inform them that she had seen Petitioner shoot Bryant. T.471. Later that night, however, when someone informed Elliott that Bryant had died, Elliott told that person that Petitioner was the shooter. T.473.
A little over a month later, on July 21, 2003, Investigator Thomas Cassidy ("Cassidy") of the Rochester Police Department visited Rodriguez's house to speak with her regarding an unrelated homicide for which her boyfriend, Israel Miranda, had been arrested. When Cassidy arrived at Rodriguez's house, he noticed that the location of Bryant's shooting was across the street. He accordingly decided to ask Rodriguez about that case as well.
During his conversation with Rodriguez that day, Rodriguez told Cassidy that Petitioner had shot Bryant. T.301-02, 353-57. Elliott also was interviewed by the police on July 23, 2003, and she informed them that Petitioner was the shooter. T.471-73, 487-89.
Petitioner did not present any witnesses at trial.
The jury returned a verdict on May 11, 2006, finding Petitioner guilty of both counts in the indictment. T.609-10. Petitioner filed a motion to set aside the verdict on the grounds that it was against the weight of the evidence and that the prosecutor improperly vouched for the People's witnesses in her summation. The trial court denied the motion in a ruling issued from the bench on June 7, 2006. S.2-3.*fn2
For the second degree murder conviction, the trial court sentenced Petitioner to a term of 25 years to life. S.10-11. With regard to the weapons-possession conviction, Petitioner received a determinate term of 15 years, to be followed by five years of post-release supervision. S.11-12. These sentences were set to run consecutively to an unrelated sentence which Bell was then serving for attempted second degree robbery. S.12.
Represented by new counsel on direct appeal, Petitioner argued that (1) the prosecutor committed misconduct during summation when she (a) vouched for the credibility of the witnesses by stating that they were credible, accurate, and brave for testifying, and showing a PowerPoint presentation calling them truthful, credible, and accurate; (b) argued that truth and justice were on the side of the prosecution; and (c) claimed that a pole depicted in a photographic exhibit that may have obstructed the witnesses' views was not there at the time of the shooting; and (2) the verdict was against the weight of the evidence.
On October 2, 2009, the Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed the conviction. People v. Bell, 66 A.D.3d 1478 (4th Dept. 2009). The New York Court of Appeals denied leave to appeal on January 6, 2010. People v. Bell, 13 N.Y.3d 937 (2010).
This timely habeas petition followed in which Bell asserts that various incidents of prosecutorial misconduct deprived him of his due process right to a fair trial and that the verdict was against the weight of the credible evidence.
For the reasons that follow, Bell's request for a writ of habeas corpus is denied, and the petition is dismissed.
For federal constitutional claims adjudicated on the merits by a state court, a reviewing court applies the deferential standard of review codified in the 1996 amendments to 28 U.S.C. § 2254(d). A habeas petitioner can only obtain habeas corpus relief by showing that the state court decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or was based on "an unreasonable ...