The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se Petitioner Kenneth Pringle ("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 December 5, 2005, in New York State, Supreme Court, Erie County, convicting him, upon a plea of guilty, of Attempted Murder in the Second Degree (N.Y. Penal Law ("Penal Law") §§ 110.00, 125.25 ), Assault in the First Degree (Penal Law § 120.10), and Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03).
II. Factual Background and Procedural History
Under Erie County Indictment No. 02634-2004, Petitioner was charged with second-degree attempted murder, first-degree assault, and second-degree criminal possession of a weapon. The charges arose from an incident that occurred on October 25, 2004 on Loring Avenue in the City of Buffalo, New York, wherein Petitioner shot Jerome Crosby ("Crosby" or "the victim") in the face. Trans. of 04/20/05 3-4.
At Petitioner's trial, Lieutenant Michael Quinn of the Buffalo Police Department ("BPD") testified that, on October 25, 2004, he responded to a call of a man shot on Loring Avenue. Trial Trans. [T.T.] 22-23. Lieutenant Quinn arrived at the scene approximately one minute after receiving the dispatch and observed a middle-aged black male, who was later determined to be Crosby, laying on the ground. Crosby had been shot in the face. T.T. 24. Lieutenant Quinn asked Crosby who shot him, to which Crosby responded, "Kenny shot me. Now get me a fucking ambulance." T.T. 31. Lieutenant Quinn testified that Crosby, who was curled up and face down, was trying to stop the bleeding from his head with his hands, was moaning, and was very agitated. T.T. 31. Lieutenant Quinn immediately dispatched the information about the shooter's name, and also put a "rush" request on the ambulance due to the seriousness of Crosby's injuries. T.T. 31. Lieutenant Quinn told Crosby that an ambulance was on the way and to remain calm. He asked Crosby if he knew "Kenny's" last name, to which Crosby responded, "they call him K-man . . . [a]nd his phone number is in my cell phone." T.T. 32. Lieutenant Quinn passed this information along to the homicide detectives. T.T. 32.
Crosby was taken to Erie County Medical Center for treatment. T.T. 46. As a result of having been shot between the eyes, Crosby's right eye was damaged beyond repair and had to be removed. T.T. 48. Crosby wore an eyepatch for two or three weeks and was eventually fitted with a prosthetic eye. T.T. 56.
At the trial, Crosby testified that he had gone to watch Monday Night Football on the evening of the shooting, arrived home at approximately 11:00 p.m., and pulled his vehicle into his neighbor's driveway because his wife was using their driveway. T.T. 41, 43. He testified that he exited his vehicle and began walking towards his home when Petitioner appeared and approached him. T.T. 43. According to Crosby, Petitioner said something about, "oh[,] you thought I was trying to sneak up on you? Some shit like that." T.T. 44. Crosby then heard a noise and fell to the ground, believing he had been shot in the cheek although he later discovered he had been shot between the eyes. T.T. 44, 45. Petitioner then nudged Crosby with his foot, and said, "[C]uz[,] you alright? You alright[,] [C]uz?" T.T. 54. Crosby did not see a gun or see a muzzle flash. T.T. 45. Crosby did not say anything to Petitioner and acted like he was dead because he was afraid Petitioner was going to shoot him again. T.T. 54. Crosby testified that he had known Petitioner from "the hood" for twelve to fifteen years. T.T. 48. Crosby testified that Petitioner owed him "[a]bout sixty-two hundred" dollars for "a few autos" that Crosby had sold him. Crosby had attempted to collect the money Petitioner owed him. Crosby testified that earlier than 11:00 p.m. on the day of the shooting, he had asked Petitioner for the money and Petitioner agreed and told Crosby "he'd see [Crosby] the next day." T.T. 49.
Crosby also testified that he met with Petitioner's lawyer in November 2005 and signed a statement indicating that he did not know who shot him. T.T. 60. Crosby testified that this statement was not true and that he had told Petitioner's lawyer that he did not know who shot him because he wanted Petitioner to remain out of custody so that he could exact revenge on Petitioner. T.T. 61. Crosby testified that he wanted to keep the matter "in the streets" and that "[he] wanted to do what he did to me, I wanted to get him." T.T. 62. In an effort to pursue this type of street justice, Crosby "missed three court appointments" and "refused to testify at [Petitioner's] parole hearing." T.T. 62. Crosby testified that he subsequently changed his mind and decided not to proceed with that course of action. T.T. 62. Crosby decided to pursue Petitioner through legal means and cooperate with the People in prosecuting Petitioner. T.T. 62-63. He testified that, since the day of the shooting, he had never had a doubt that Petitioner was the person who shot him. T.T. 63.
BPD Officer Monte Montalvo testified that on November 19, 2004, he was working the day shift when he stopped a sport utility vehicle because the driver was not wearing a seatbelt. T.T. 91-93. Subsequent to the traffic stop, Officer Montalvo learned through the police radio in his vehicle that there was a warrant out for Petitioner's arrest for attempted murder. T.T. 95. Officer Montalvo testified that he then took Petitioner into custody and Mirandized him. T.T. 95. Petitioner asked Officer Montalvo why he was being arrested, to which Officer Montalvo responded that it was because he had shot someone. T.T. 95-96. In response, Petitioner stated to Officer Montalvo, "if they thought I shot somebody, why wouldn't they come arrest me when it happened?" T.T. 96. Officer Montalvo transported Petitioner to police headquarters to be booked. T.T. 96. While at police headquarters, Petitioner asked to see a sworn statement that Crosby had provided to police after the shooting in which he identified Petitioner as the shooter. T.T. 97. Officer Montalvo asked Petitioner if he knew Crosby, to which Petitioner first responded that he did not and then indicated that "[he] may have heard of him." T.T. 98.
New York State Peace Officer Robery Vickery testified that, on November 22, 2004, he had a conversation with Petitioner about the shooting. Petitioner told Vickery that he did not shoot Crosby, that he was home the night of the shooting, and that he did not even know Crosby and did not know why Crosby came up with his name. T.T. 107-108.
Detective Mark Vaughn of the BPD testified that he was assigned to investigate the shooting on Loring Avenue. T.T. 117-118. Detective Vaughn testified that after he learned of Petitioner's name, he looked up Petitioner's cell phone number through Crosby's cell phone at the scene of the crime. T.T. 118. Later, Detective Vaughn called the number and asked for "Kenny". The voice on the other end of the call responded "what's up?" T.T. 119. Detective Vaughn explained that he was investigating the shooting of Crosby, to which the person responded, "I don't know anything about the shooting" and then ended the call. T.T. 119.
Detective Vaughn testified that he subpoenaed the victim's phone records and corroborated that "Kenny" had called Crosby earlier on the day of the shooting. T.T. 120. Detective Vaughn and other officers canvassed the area where the shooting occurred and discovered that some of the neighbors saw a "heavy set black male" running through their yards shortly after the time Crosby was shot. T.T. 121.
At the close of the trial, Petitioner was found guilty as charged. T.T. 211. He was sentenced, as a second felony offender, to two determinate terms of twenty years imprisonment for the attempted murder and assault convictions, and a determinate term of fifteen years imprisonment for the weapon possession conviction.
All three terms were set to run concurrently. Sentencing Mins. [S.M.] 7.
C. Post-Conviction Relief
On or about July 17, 2007, Petitioner filed a counseled motion, pursuant to N.Y. Crim. Proc. Law ("CPL") § 440.10, to vacate his judgment of conviction on the basis that he was denied effective assistance of counsel because counsel failed to call material exculpatory witnesses, failed to withdraw as counsel despite himself being a material witness in the case, failed to deliver coherent opening and closing arguments, and failed to effectively cross-examine witnesses. See Pet'r Ex. A.*fn1 The Erie County Supreme Court denied the motion on the merits on February 3, 2009, and leave to appeal was denied. See Pet'r Exs. B, C.
On or about September 30, 2009, Petitioner, through counsel, appealed his judgment of conviction on the following grounds:
(1) his confrontation rights were violated; (2) prosecutorial misconduct in summation; (3) ineffective assistance of counsel;
(4) the verdict was against the weight of the evidence and the evidence was legally insufficient to support his conviction; and
(5) the sentence was unduly harsh, excessive, and severe. See Pet'r Ex. D (Pet. Br. on Appeal, Points I-V). The Appellate Division, Fourth Department unanimously affirmed the judgment of conviction, and leave to appeal was denied. People v. Pringle, 71 A.D.3d 1450 (4th ...