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Johnnie M. Garcia, Iii v. Harold Graham

July 17, 2012


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


I. Introduction

Pro se Petitioner Johnnie M. Garcia, III ("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 July 9, 2007, in New York State, County Court, Chemung County, convicting him, after a jury trial, of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law ("Penal Law") § 265.03[1][b]) and two counts of Criminal Possession of a Weapon in the Third Degree (Penal Law § 265.02[1], [4]). Petitioner was sentenced to an aggregate indeterminate prison term of 15 years, plus five years of post-release supervision.

II. Factual Background and Procedural History

A. Indictment

By Chemung County Indictment No. 2006-351, filed on November 17, 2006, Petitioner was charged with one count of second-degree weapons possession, and two counts of third-degree weapons possession. See Resp't Ex. D.

B. The Trial

1. The People's Case

At about 2:00 a.m. on October 8, 2006, Officer Richard Comstock ("Comstock") ("Officer Comstock") monitored speeding traffic with a radar gun at the intersection of William and Church Streets in Elmira, New York. Trial Trans. [T.T.] 125-127. Comstock observed a tan Pontiac minivan chasing a green Jeep Cherokee on the southbound side of William Street. The Jeep turned right onto Church Street and then sped down that street. T.T. 131. The minivan stopped at the intersection, then turned to follow the Jeep. As the minivan started to turn, Officer Comstock saw Petitioner lean out of the front passenger side window of the vehicle and fire five or six shots from a handgun. T.T. 132. Petitioner, who was not driving, wore a white "do-rag" and a white sweatshirt with dark stripes on the shoulders. T.T. 133, 167. Officer Comstock was about 20 or 25 paces from Petitioner when he fired the shots. T.T. 167. The handgun was semi-automatic, as it ejected shells as Petitioner fired it. T.T. 134.

Officer Comstock transmitted a "shots fired" radio message and the location of the shots. T.T. 135. He pulled behind the minivan, which stopped. Officer Comstock waited behind the stopped minivan for assistance to arrive, and radioed the license plate to headquarters. He then saw Petitioner exit the front passenger door of the minivan and run. T.T. 135-137, 174. In the meantime, Officer Comstock lost sight of the Jeep. T.T. 137.

Officer Comstock then radioed that he would pursue Petitioner, and saw him run north around a church and across a parking lot toward an alley called Academy Place. T.T. 138-139, 140. Officer Comstock drove up Lake Street to try to stop Petitioner who ran toward William Street. T.T. 139, 141, 176.

At that point, Officer Todd Adams was working in the police building when he heard "several shots" close by, and ran from the building to Lake Street. T.T. 190. Officer Comstock also saw Officer Adams run from the building. T.T. 141. Officer Adams saw Petitioner, a light-skinned black male wearing a white-colored jacket, jeans, and "some sort of hat," run "full sprint" around the side of the church. T.T. 190. As Officer Comstock followed them in his patrol car, Petitioner ran behind some bushes alongside a law office building. T.T. 143, 192, 208.

Officer William Solt arrived at William Street, near the law office building. T.T. 220. He turned his spotlight onto the building and saw Petitioner standing in front, in the bushes. T.T. 220. Officers Solt, Adams, and Comstock ordered Petitioner, several times to walk out from the bushes. T.T. 143-144, 221. Ultimately, Petitioner walked out with his hands up and the officers arrested him. T.T. 144, 221. Petitioner was wearing only one boot when he was arrested. T.T. 149, 221.

Officer Adams found one Timberland boot in a parking lot near the law office, a Sig Sauer handgun near a grassy corner of that building, and a magazine clip in that parking lot. T.T. 195-201, 246. The gun was cocked in the firing position. T.T. 248. Officer Zachary Stewart also found a black and white cap bearing the Yankees insignia in the parking lot. T.T. 253.

Police found six 9 millimeter shell casings on the northwest corner of William and Church Streets. T.T. 258. Officers Stewart and Scott Packard observed a bullet hole in a double-paned window of an office at 412 East Church Street. T.T. 262, 275-276. They obtained entry to the building, where they saw a bullet resting on the inside window pane. T.T. 263, 275-277. Officer Solt also observed a fresh chip, consistent with a bullet strike, on the brick building next to 412 East Church Street. T.T. 226.

Officers Solt, Packard and Comstock went to the registered address of the green Jeep Cherokee, and saw it parked in the driveway. T.T. 155, 223, 233, 279. The Jeep owner, Patricia Freemen ("Freemen"), told them that her son Grant had been driving it earlier that evening, and that Grant was not at home. T.T. 157, 235. The officers showed her that the Jeep had tailgate damage, which was consistent with that of a bullet strike, and a bullet hole in the passenger side front door. T.T. 156-157, 160, 223-224, 236, 279-280, 315-316. Police impounded the Jeep and Sergeant David Kinnaird subsequently recovered a small projectile from inside the door. T.T. 315-316.

In the meantime, at police headquarters, Officer Comstock advised Petitioner of his Miranda rights. T.T. 150. Petitioner had a hole at the end of his right sweatshirt sleeve, and, in a booking photo, Petitioner's thumb could be seen poking through that hole. T.T. 152-153, 161, 204. Officer Comstock told Investigator Richard Weed that he had advised Petitioner of his Miranda warnings, and Petitioner told the sergeant that he understood those rights, and that Petitioner wanted to talk to the investigator. T.T. 294-295.

Petitioner told Investigator Weed that he was "jumped" by "several black males" at Zamboni's bar, which is not in the vicinity of William and Church Streets. T.T. 295-296. Petitioner then ran up to West Church Street with a white female he knew only as "Tarren". T.T. 295. At College and Church Streets, Petitioner encountered someone he knew only as "L" driving a minivan. T.T. 296. Petitioner entered the van and along with "L", there was a black male in the minivan, whom Petitioner did not know, who wore a white "do-rag" and hooded sweatshirt. T.T. 296, 297, 299. This man told Petitioner "the shit is about to get crazy," and then someone started shooting from within the minivan. T.T. 297. Petitioner became frightened, left the van and ran. T.T. 297.

Petitioner did not admit to Investigator Weed that he was the shooter. T.T. 301.

That night, Officer Comstock telephoned Kimberly Long ("Long"), Petitioner's mother. T.T. 159. Long went to the police station and told the officers that she had loaned her 1999 gold Montana minivan to Petitioner a few days earlier. T.T. 159, 239-240. The rear hatch door of the minivan contained a bullet imprint. T.T. 160. Long also identified Petitioner's sweatshirt, which had two holes in the sleeve. Each hole had blackened fibers around it. T.T. 161.

New York State Police Sergeant James Campbell examined the black stain on Petitioner's sweatshirt. T.T. 323-325. He found no particulate matter when he viewed the black stain under a microscope. T.T. 327. After testing the matter, he found no nitrates and no lead, and thus concluded that the black sootiness was not gunshot residue. T.T. 327, 338-339. He testified that gunshot residue is not normally found on a shooter's clothing because it exits the barrel in the direction of the projectile. T.T. 328.

Sergeant Campbell examined the Sig Sauer and the six expended shell casings, the deformed 9 millimeter bullet, and bullet fragment found by the officers. T.T. 327-328, 330. He test-fired the gun, and found it was operable. T.T. 323-333. The deformed slug was consistent with having been fired from the Sig Sauer.

T.T. 335, 341. Sergeant Campbell, however, could not determine the caliber of the deformed fragment. T.T. 336. The six spent shell casings were consistent with each other, and with the shells that ...

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