The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se petitioner Louis Morgan ("Morgan" or "Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his detention in Respondent's custody. Morgan is incarcerated as the result of a judgment entered against him on March 10, 2009, following a jury verdict in Erie County Court convicting him of one count of second degree (intentional) murder (N.Y. Penal Law § 125.25(1)) and one count of second degree criminal possession of a weapon (N.Y. Penal Law § 265.03(1)(b)).
II. Factual Background and Procedural History
The convictions here at issue stem from the fatal shooting of Liquori Mills ("Mills") on August 17, 2007, at Michelina's Bistro on Pearl Street in the City of Buffalo. A summary of the pertinent trial testimony follows.
David Szuba ("Szuba") is the brother of the owner of Michalina's. On the night of the shooting, a private party was being held to celebrate the eighteenth birthday of Brittney Parker ("Brittney"). The party had been arranged by Alex Parker ("Alex"), Brittney's brother. Scott Nowak ("Nowak"), who was friends the Szuba brothers, had introduced Alex to them. T.303-05, 495-96.*fn1
Szuba arrived early with Nowak to set up the bar and music.
T.305-06. Guests did not begin arriving until about 10:00 p.m.
T.305-06. Szuba acted as the DJ that night, while Nowak worked the door checking I.D.'s, as he typically did. T.303, 314, 318, 321.
At 3:00 a.m., Szuba recalled, he was DJ-ing and Nowak was at the front door. T.315. Szuba heard "bam, bam, bam" and saw "a van go flying by the front of the bar with . . . [a] guy's hand still hung out . . . ." T.316. The man hanging out of the van was black.
T.316. There was something in his hand but Szuba was not sure what it was. T.316. Szuba could not identify the shooter.
Brittney did not arrive at Michalina's until about 12:00 or 12:30 a.m. T.395. She was in the DJ booth when the shooting occurred. T.397. When she heard the shots, she ducked underneath the DJ booth and thus did not see the shooting at all. T.398. She did not know where Nowak, whom she knew as "Moe", was at the time of the shooting. T.410. According to Brittney, Nowak "was never working at the door, but if he was standing near the door, that [she] can't say." T.410. For a while, her cousin, Carmen Beasley ("Beasley") was collecting a cover fee at the door, but stopped shortly after Brittney arrived. T.419.
Brittney testified that she would have noticed if Nowak was standing at the door "a lot" but she did not "recall seeing him at the door a lot[,]" although she could not say that he was not at the door. T.411. She admitted that she was mostly dancing and making sure that the songs she wanted got played by the DJ. T.411. Brittney claimed that she only had one shot of Hennessy that night, although her brothers and her friends "kept trying to get [her] to drink all night. . . ." T.422-23.
3. Eyewitness Jeffrey Lesanti
Jeffrey Lesanti ("Lesanti") went to Michalina's with his girlfriend, not knowing that a private party was being held there.
T.369. The couple arrived about 1:00 a.m., finding the bar more crowded than usual and "rowdy" "like a mosh pit." T.370. Lesanti and his girlfriend did not know the people who were throwing the party. T.371.
At about 3:00 a.m., while they were outside having a cigarette in front of the bar, the victim (whom Lesanti did not know) walked by them, went over to a nearby fence, and started urinating with his back to them. T.377. Lesanti then heard "two firecracker-type noises" which he recognized as gunshots. T.378. Lesanti pushed his girlfriend down out of the way and looked to his left where he saw that the victim had been shot twice in the chest. T.378. Lesanti looked to his right and saw a minivan (either a Dodge Caravan or Voyager). A black male "kind of hanging out [of the van's window]. . . with a snub-nosed revolver, . . . [was] pulling off the third shot." T.379. The shooter was firing "more backwards than straight ahead." T.388. Lesanti testified that if the shooter had just moved his wrist slightly, he (Lesanti) would have gotten shot.
Lesanti looked back towards the victim and saw the third bullet go through his head, causing him to fall to the ground.
T.379. Lesanti could tell that the victim was dead, so he attempted to see which way the van went as it drove away. T.380-81. Lesanti recalled that the lighting in front of the bar was very good due to the streetlights, the lights on the Michalina's building, and the lights from the surrounding businesses. T.383.
4. Identification Witness Scott Nowak
At the time of trial, Nowak was working full-time as a mechanic doing collision work. T.476. However, in September of 2007, about a month after the Mills shooting, Nowak had been arrested for acting as a "look-out" while a friend of his went into a house and took some jewelry and money. T.476-77. A neighbor became suspicious and called the police, which resulted in the police apprehending Nowak and his friend. T.479. His friend, who was driving, got out of the car and ran away, while Nowak stayed behind and got arrested. T.480.
Nowak admitted that he had a criminal history dating back to his adolescence. Between the ages of nineteen and twenty-one, Nowak was arrested three times for driving while intoxicated and spent eighteen months in jail. T.481. He successfully completed a six-month rehabilitation program in 2003. From 2003 until 2007, things were going pretty well, but by the end of 2007, things had started to go downhill. That is when he was arrested in connection with the burglary. Nowak testified that while he was at the holding center, he "asked to talk to somebody, because [he] had information about something that was on [his] mind, . . . , and [he was] trying to help [him]self a little." T.483.
Two detectives from the Buffalo Police Department's homicide bureau came to speak with him--Reginald Minor and Mary Evans. T.485. Nowak told them everything he knew about the murder of Liquori Mills. T.485. In particular, Nowak identified the shooter as "Lou" and provided several addresses where he knew Lou to stay. T.485-86. Nowak said that he was friends with Lou, and hung out with him "a bunch of times" in Depew and at houses on Humboldt and Northumberland. T.486-87. In addition, Lou used to hang out with Nowak and other friends every weekend at Michalina's. T.487. The group of friends included Heather Kretzman, who was dating Darawmus Gardner ("D"), Brittney's half-brother; Alex; Tone; and Lou. T.489. "Lou" also had been over to Nowak's house on two occasions. T.490.
On the night of Brittney's party, Nowak went to Michalina's with Amanda Dolac ("Dolac"),*fn2 Amanda Lignos ("Lignos"), and Jeff Gervace ("Gervace"), arriving at about 9:30 or 10:00 p.m. T.496. Neither Tone nor Petitioner were there yet. T.497. Nowak was checking I.D.'s but someone else was collecting money for the party. T.499. According to Nowak, he was in the doorway "basically the whole night," and only left to use the bathroom or get a drink.
T.500. Nowak recalled that he saw Brittney come outside one time to cool off; she did not hang out by the door at all. T.502. Between 10:00 p.m. and 3:00 a.m., he had about six drinks and was "a little buzzed[.]" T.500.
Awhile before the shooting, Tone had commented to Nowak, "[W]e're scaring away all the white people, come hang outside so we can get people in here." T.511-12. From that time on, Nowak was standing in front of the bar with a group of people including Tone, Dolac, Lignos, D, and someone named Corey. T.513.
Nowak testified that at about 3:00 a.m., Tone said, "I would move out of the way if I were you[.]" T.515. The comment was directed at Dolac, who was standing closer to the alley on the side of Michalina's. T.515, 516. Nowak looked at Tone, who gave "a head nod towards the guy [Mills] that's taking a leak on the side of a building[.]" T.515, 518. Just then a van pulled up and Nowak saw "Lou hanging out of the side of the van shoot the guy taking a leak on the fence." T.515. Nowak heard three shots. T.519. The shooter was "facing back a little bit out of the window." T.519. According to Nowak, the van was a "gold/tan colored" Dodge Caravan. T.517.
After the shooting, Nowak left with Gerace, Dolac, and Lignos. He did not talk to the police or leave his contact ...