The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Petitioner Jeremy Miller ("Miller" or "Petitioner"), through counsel, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered January 14, 2008, in New York State County Court, Erie County. Miller was convicted, after a jury verdict, of intentional murder and related charges.
II. Factual Background and Procedural History
On October 27, 2006, Petitioner was indicted by an Erie County grand jury and charged with Murder in the Second Degree (New York Penal Law ("P.L.") Law § 125.25(1)), Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03(2)), and Making a Punishable False Statement (Penal Law § 210.45). By the same indictment, Alysia Hawks ("Hawks"), Petitioner's girlfriend, was charged with Making a Punishable False Written Statement (P.L. § 210.45). The charges arose from an incident on September 16, 2006, in the City of Buffalo, New York, wherein Petitioner shot and killed Steven Austin ("Austin" or "the victim"), and then falsely denied his guilt in a written statement to police.
On September 16, 2006, at approximately 4:00 a.m., Antwoine Brown ("Brown") and James Simpson ("Simpson") were at the Copacabana nightclub located at the corner of Fillmore Avenue and Bradley Street. T.653.*fn1 An altercation began in the bar and spread to the area outside, involving a large number of people. T.657.
While standing outside the bar, Brown and Simpson saw Austin, a mutual friend of theirs. T.656. Simpson and Austin chatted as Brown stood nearby. T.657. Brown and Simpson observed a heavy-set man in a grey hooded sweatshirt retrieve a gun from a vehicle and tuck it into the pocket of his hooded sweatshirt. T.658, 686. After alerting Brown and Austin about the man with a gun, Simpson left the area. T.686.
Brown observed the heavy-set man remove the gun from his sweatshirt and fire one shot into the crowd of people congregated outside of the bar. T.658, 671. Brown then ran from the scene but eventually returned with Simpson to find Austin lying on the sidewalk across from the street from the night club. T.661, 690. Austin later died from a gunshot wound to the chest. T.918.
From a police photo array, Simpson identified a man named Edwin Garner ("Garner"), also known as "Blow", as the shooter. T.707. When Garner was brought in for questioning, he told the police that Petitioner was shooter. T.816-818. At trial, however, Garner testified that he was "not sure if [Petitioner] was the shooter" and that when he attempted to tell the police that he was unsure of the identity of the shooter, he was told that he had already made a statement identifying Petitioner as the gunman. T.862.
After Garner implicated Petitioner as the shooter, the police shifted the focus of their investigation to him. T.659, 821. Austin's friend, Brown, identified Petitioner as the shooter from a photo array, as did Nakeya Roseboro ("Roseboro") and Tammy Donaldson ("Donaldson"). These women knew Petitioner and had been patrons at the bar on the night of the crime. T.659, 821.
Roseboro's and Donaldson's accounts of events were conveyed to the jury only by their prior statements.*fn2 According to Roseboro, she was on the sidewalk down the street from the nightclub with Donaldson on the night of the crime. The club had just closed and the patrons had gathered outside on the street. Roseboro saw Austin "trying to be the peacemaker" in the middle of an argument. T.728. As she watched, Petitioner, whom she knew as "Swo", removed a gun from his right side and shot Austin. T.728. According to Roseboro, Petitioner, who was wearing a grey and red sweatsuit with a white t-shirt, jumped into the back of a black two-door car which headed toward Broadway. T.737-38. Austin ran across the street and collapsed. T.737. Roseboro did not observe Austin with a gun, and stated that Petitioner was only "a couple feet" away from Austin when Petitioner shot him. T.730. At the time of the shooting, Roseboro had known Austin for three years and Petitioner for about one year. T.731.
Donaldson's statement corroborated Roseboro's observation that Austin was trying to be a peacemaker when he was shot by Petitioner. T.727-28, 730, 733. As the fight appeared to be breaking up, Donaldson saw Petitioner run to a black Dodge Intrepid vehicle parked across the street from the club, reach behind the driver's seat, and retrieve a black handgun. Saying, "Nigger, you are going to die tonight," Petitioner ran into the middle of the street and shot Austin in the chest. Austin ran across Fillmore, and fell to the ground. T.734. Donaldson did not know Austin and did not see him with a weapon. T.735, 736.
After Petitioner shot Austin, he got into the car from which he had retrieved the gun. According to Donaldson, the vehicle headed down Fillmore Avenue toward Sycamore Street, not toward Broadway. T.730, 738. Donaldson had known Petitioner for six years, having attended high school with him. T.738, 739.
Upon learning that police wished to question him with respect to the shooting, Petitioner voluntarily went to the police station on September 28, 2006, without an attorney. T.805. Petitioner told the police that he arrived at the Copacabana a little after midnight. His girlfriend, Hawks, and her friend, Samantha Hendrix, were both there. The three left the bar about 2 a.m., and Samantha drove them all to her house, where they watched television and then went to sleep. T.805. Petitioner denied shooting Austin or being part of any disturbance at the bar. T.806. Hawks gave a statement to the police corroborating Petitioner's statement. T.815.
To rebut Petitioner's alibi defense, the prosecution called Antwane Hendrix, Samantha Hendrix's brother, who testified that he went to the night club sometime after midnight after receiving a call that his sister was drunk. T.885, 902, 906. According to Antwane Hendrix, he drove his sister, Hawks, and some other male or female passengers to the nearest corner. He then got out of the car but did not explain what happened to his sister and the other passengers. T.887.
The jury returned a verdict finding Petitioner guilty as charged in the indictment. He was sentenced to an indeterminate term of 25 years to life for the murder conviction, a determinate term of imprisonment of 15 years for the weapons possession conviction, and a one-year definite term for the false statement conviction, all to be served concurrently.
The Appellate Division, Fourth Department unanimously affirmed the judgment of conviction on April 24, 2009. People v. Miller, 61 A.D.3d 1429 (4th Dep't 2009), lv. denied, 884 N.Y.S.2d 708 (2009). On June 7, 2010, Petitioner filed a motion in the trial court pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 to vacate the judgment on the basis that he was denied the effective assistance of trial counsel. The trial court denied the motion on the merits, and leave to appeal was denied. On March 13, 2011, Petitioner filed an application for a writ of coram nobis in the Fourth Department, arguing that he was denied the effective assistance of appellate counsel. That motion was summarily denied, and leave to appeal was denied.
Represented by counsel, Petitioner filed a timely habeas corpus petition in this Court on May 18, 2011. The Court subsequently granted Petitioner's motion to amend the petition which now includes the following grounds: (1) the trial court violated his Sixth Amendment right of confrontation by introducing the prior statements of Donaldson and Roseboro; (2) the verdict was against the weight of the evidence; (3) the trial court erred in denying a missing witness charge with regards to Samantha Hendrix; (4) the prosecutor committed misconduct; (5) trial counsel was ineffective in failing to call a material witness with potential exculpatory evidence; and (6) appellate counsel was ineffective. See Amended Petition ("Am. Pet."), ¶¶22(A)-(F) (Dkt. #8). For the reasons that follow, habeas relief is denied and the petition is dismissed.
III. The AEDPA Standard of Review
For federal constitutional claims adjudicated on the merits by a state court, the deferential standard of review codified in the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") applies. 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 determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2) (Dkt. No. 8).
IV. Analysis of the Petition
A. Denial of the Right of Confrontation (Ground One)
Petitioner claims that the People's introduction of Donaldson's and Roseboro's sworn statements to the police, their photo array affidavits, and grand jury testimony violated his Confrontation Clause rights. Specifically, he claims that the evidence presented at the Sirois hearing*fn3 was insufficient to establish that Donaldson and Roseboro were threatened and that these threats were made at his request, or with his acquiescence.
As noted above, Donaldson and Roseboro were patrons at the Copacabana club, witnessed the shooting, and gave sworn statements implicating Petitioner as the perpetrator. On the morning of jury selection, however, Donaldson and Roseboro appeared in the prosecutor's office pursuant to a subpoena and had informed him that they had been threatened by Petitioner's associates and were afraid to testify. T.443. In support of his motion for a Sirois hearing, the prosecutor related three incidents of threatening behavior allegedly experienced by Donaldson and Roseboro. T.444. The trial court granted the request.
At the hearing, Donaldson testified that on Mothers's Day 2007, she had accompanied Roseboro to a liquor store on Box and Fillmore Avenues, and remained in the car while Roseboro went inside. T.468. Two men approached the car and one pointed a gun to her temple, while the other asked if she knew petitioner. When Donaldson told him no, he asked if she knew "Swo", and she again replied in the negative. T.467. The man asked her to accompany him to Stanton Street "to clear everything up" and asked for her phone number. Donaldson gave him a "bogus" number and both men left in a car. T.467-68.
As soon as Roseboro returned, Donaldson told her what had happened. Donaldson also related the incident to her probation officer who advised her to contact Assistant District Attorney Chris Belling ("A.D.A. Belling"), the prosecutor handling the case.
Two weeks later, Donaldson was with Roseboro ...