The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se Petitioner Dominick Sutton("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 27, 2006, in New York State, County Court, Erie County, convicting him, upon a jury verdict, of three counts of Murder in the First Degree (N.Y. Penal Law ("Penal Law") § 125.27[a][viii], 20.00), two counts of Murder in the Second Degree (Penal Law §§ 125.25, 20.00), two counts of Attempted Murder in the Second Degree (Penal Law §§ 110.00, 125.25, 20.00), and one count of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03).
II. Factual Background and Procedural History
A. Indictment and Pre-Trial
Erie County Indictment No. 00936-2005 charged Petitioner and co-defendant Justin Thompson ("Thompson") with three counts of Murder in the First Degree (Penal Law §§ 125.27[a][viii], 20.00), two counts of Murder in the Second Degree (Penal Law §§ 125.25, 20.00), and two counts of Attempted Murder in the Second Degree (§§ 110.00, 125.25, 20.00). Petitioner and co-defendant Thompson were also each charged individually with one count of Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03). Arraignment Mins. of 05/05/2005 2-3; see also Securing Order - C.P.L. Art. 510 at Resp't Ex. A.*fn1
The indictment was returned in connection with the murders of Robert Brown, Tonisha Brown, Gregory Conwell ("Conwell"), and Stacie Guest ("Guest"), and the attempted murder of Diondre Brown and Walisha Walker ("Walker"), the children of Tonisha Brown.
In addition to other pre-trial motions, Petitioner filed a motion to sever his trial from his co-defendant, which was initially granted on April 13, 2006. See Decision and Order of the Erie County Court (Hon. Timothy J. Drury) dated 04/13/2006 at Resp't Ex. A. Subsequently, the People moved to reargue the severance motion on the basis that the county court had misapprehended the facts concerning statements made by co-defendant Thompson to certain witnesses. See People's Notice of Motion to Reargue Defendants' Severance Motions and Supporting Affidavit dated April 17, 2006 at Resp't Ex. A. After oral arguments, the county court denied severance.
At trial, then eleven-year-old Diondre Brown testified that he was at his home, located at 320 Koons Avenue, watching television with his mother and his sisters on April 23, 2005 when Petitioner, who he knew as Damoo, arrived to talk to his mother, Tonisha Brown. Petitioner had "dreads" in his hair and was wearing a Jamaican hat. Trial Trans [T.T.] 971-972. Diondre Brown testified that he knew Damoo because he had previously visited his house several times to talk with his mother and play video games with him. T.T. 968-969. Diondre Brown testified that while Damoo was at his house, Damoo shook his hand and picked up his eleven-month-old baby sister Mytavia and kissed her on the cheek. T.T. 973. Petitioner then went upstairs via the back entrance of the house to the upper apartment. T.T. 974. Shortly thereafter, Diondre Brown heard arguing and then heard eleven gunshots ring out from upstairs. T.T. 974.
Diondre Brown testified that when his mother heard the gunshots, she picked up baby Mytavia and ran outside. T.T. 975. Diondre Brown and his eight-year-old sister, Walker, also ran outside. T.T. 975. Diondre testified that, once outside, he ran to the front porch of the house next door. From there, Diondre saw Petitioner, who was standing on the porch of his house, shoot his mother while she was carrying baby Mytavia. T.T. 977-978. According to Diondre Brown, Petitioner then shot at him and at Walker. T.T. 978.
Diondre Brown testified that after his mother was shot, he saw co-defendant Thompson exit 320 Koons Avenue and heard him say to Petitioner, "come on, let's go." T.T. 983-984. Petitioner and co-defendant Thompson, who were both carrying guns, entered a black Chevy Lumina, which Diondre recognized as belonging to co-defendant Thompson. T.T. 983-984, 1034.
A police investigation of the crime scene shortly after the shootings revealed that Robert Brown, Guest, and Cornwell had been shot to death in the upper apartment of 320 Koons Avenue. Diondre Brown's mother, Tonisha Brown, had been shot to death outside her home. Walker suffered a non-fatal gunshot wound to her hand. T.T. 1175.
Robin Brown, Tonisha Brown's mother, testified that she knew Petitioner and co-defendant Thompson for "maybe five or six years" and that both visited 320 Koons Avenue frequently. T.T. 1164. Robin Brown testified that, at the time of the shooting incident, she was across the street at her friend's house when she heard gunshots, screaming, and then a car "screeching off." T.T. 1175.
Robin Brown went outside and saw Diondre Brown on her friend's porch, saying, "they shot my mommy." T.T. 1175. Robin Brown testified that she ran to Walker, who stated, "I think I got hit" and then showed Robin Brown her bloody hand. T.T. 1175. Robin Brown then ran to her daughter, who was lying on the ground outside between two houses with "a bullet hole in her neck." Baby Mytavia was sitting between her mother's knees. T.T. 1176. Robin Brown picked up the baby and then started screaming for help. Shortly thereafter, the police arrived. At this point, worried that something had happened to her brother, Robert Brown, Robin Brown ran back into the house and to the upper apartment. T.T. 1178. There, she observed her brother and Guest laying dead on the floor. Robin Brown collapsed and started screaming. T.T. 1179. The police eventually transported Robin Brown to the station where she later gave a statement. T.T. 1181.
James Webb ("Webb") testified that he knew Petitioner from being incarcerated with him at the county jail. T.T. 1935. According to Webb, because there were only four people in their cell block, Petitioner and Webb began talking about their respective cases. T.T. 1939. Webb testified that, during one of their conversations, Petitioner, in explaining his role in a shooting, stated, "I did that bitch dirty up close and personal." T.T. 1943. Petitioner told Webb that he shot a female and that he had shot her within two to three feet away. Petitioner also told Webb that, at the time of the shooting, he was wearing a hat that had dreadlocks attached to it. T.T. 1943. Additionally, he told Webb that there had been one witness to the shooting and that this one witness was a young boy whom he had known before the shooting, as he had been to this particular boy's house on Koons Avenue "plenty of times." T.T. 1945. Petitioner told Webb that he took $4,000 from one of the victim's pockets, but that this money was confiscated by the police when he was arrested. T.T. 1947. Webb testified further that Petitioner told him that, after the shooting, he went to "his neighbor's house in the projects, like a door or two away from his baby's mother's house" and, while there, cut his hair. T.T. 1952-1953. Webb testified that he hoped to possibly receive a "deal" from the prosecution on his pending robbery conviction in exchange for his testimony, but that no deal had been made. T.T. 1957.
Buffalo Police Department Homicide Detective Mark Stambach testified that he interviewed Petitioner after the murders at 320 Koons Avenue. T.T. 1623-1624. Detective Stambach testified that when he asked Petitioner if he "hurt" anyone at 320 Koons, Petitioner nodded his head, indicating he had. T.T. 1638. Petitioner also nodded his head in the affirmative when Detective Stambach asked him if anything went wrong at 320 Koons, whether he had shot anyone at 320 Koons, and when asked, "did you shoot your way out of 320 Koons?" T.T. 1641-1644.
Lisa Rivera ("Rivera") testified that she knew co-defendant Thompson "almost a year" before the date of the murders, and that she had a relationship with him during that time. T.T. 1290. Rivera testified that, around April of 2005, co-defendant Thompson drove a black Lumina and that she had been a passenger in it "more than a dozen times." T.T. 1290-1291. Rivera also testified that prior to the date of the murders, Robin Brown had told her "not to mess" with co-defendant Thompson because the Secret Service was looking for him and that they had been to her house and would probably come to Rivera's house next. Rivera testified that when she told co-defendant Thompson what Robin Brown had told her, he said, "[t]hose motherfuckers snitching. I'm going to kill all of them motherfuckers." T.T. 1297. According to Rivera, after the murders, co-defendant Thompson came to her house and told her that he paid someone to commit the murders at 320 Koons. T.T. 1303-1305. The two continued their conversation and co-defendant Thompson proceeded to tell Rivera that he had shot Conwell, "some girl," and Robert Brown, recounting the details of the shootings. T.T. 1306-1310. Rivera also testified that Petitioner asked her to be an alibi witness for him, but that she declined. T.T. 1309-1310.
Forensic specialist Michael Dujanovich ("Dujanovich") testified that the bullets removed from Tonisha Brown were consistent with .22 caliber class bullets. T.T. 2041. He also testified that the bullets removed from the three other victims upstairs at 320 Koons Avenue were consistent with .9mm caliber bullets. T.T. 2042-2058.
At the close of the trial, Petitioner was found guilty as charged, and subsequently sentenced to life imprisonment without parole. T.T. 2370-2371; Sentencing Mins. [S.M.] 15-17.
Through counsel, Petitioner appealed his judgment of conviction in the Appellate Division, Fourth Department on the following grounds: (1) that he was entitled to a new trial because county court refused to sever his trial from co-defendant Thompson;
(2) that his constitutional speedy trial rights were violated when the county court refused to let him go to trial separately; (3) the jury's verdict was not supported by legally sufficient evidence and was contrary to the weight of the evidence; (4) that Petitioner was entitled to a new trial due to juror misconduct; and (5) the sentence was unduly harsh and severe. See Resp't Ex. B. The Appellate Division, Fourth Department unanimously affirmed the judgment of conviction, and leave to appeal was denied. People v. Sutton, 71 A.D.3d 1396 (4th Dep't 2010); lv. denied, 15 N.Y.3d 778 (2010).
E. The Federal Habeas Proceeding
On or about October 26, 2011, Petitioner filed the instant habeas corpus petition, seeking relief on the same five grounds he raised on direct appeal. See Pet. ¶ 12, Points One-Five, Appendices A-B. Before Respondent answered, Petitioner moved to stay his petition on the basis that he needed to "exhaust certain issues that were raised" and intended to add new issues. Dkt. No. 6. In a Decision and Order dated January 13, 2012, the Court (Hon. Charles J. Siragusa) denied the request for a stay without prejudice. Prior to the denial, however, the Court permitted the parties to address the issues raised by Petitioner's request. Dkt. No. 7 at p 3. The Court directed Petitioner to respond to the Order, "addressing whether a stay is necessary and appropriate in this action." Id. The Court also instructed Petitioner that, "[i]f [he] intends to amend his petition to include additional claims that are not yet exhausted, he is directed to submit a proposed amended petition, including all of the claims by which he seeks to challenge the conviction, both exhausted and unexhausted." Id.
Petitioner has now submitted a renewed motion for a stay on the basis that he is "in the ...