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Douglas Gross v. Superintendent Five Points Correctional Facility

October 9, 2012

DOUGLAS GROSS, PETITIONER,
v.
SUPERINTENDENT FIVE POINTS CORRECTIONAL FACILITY RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se Petitioner ("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 November 1, 2005, in New York State, Supreme Court, Monroe County, convicting him, upon a jury verdict, of Murder in the Second Degree (N.Y. Penal Law ("Penal Law") § 125.25[1]) and two counts of Manslaughter in the First Degree (Penal Law § 125.20[1]).

II. Factual Background and Procedural History

A. Indictment & Pre-Trial

A Monroe County Grand Jury charged Petitioner with three counts of Murder in the First Degree (Penal Law § 125.27), two counts of Murder in the Second Degree (Penal Law § 125.25[2]), and Criminal Possession of a Weapon in the Second Degree (Penal Law § 265.03[3]).*fn1 The charges arose from a shooting incident that occurred on June 11, 2000 at 53 Romeyn Street in the City of Rochester, New York. See Resp't Ex. A at 5-8.

Prior to trial, a Wade and Huntley hearing*fn2 were conducted, at the close of which the trial court denied suppression. See Resp't Ex. A at 287-288.

B. Trial

On June 11, 2000, Jermaine Gross drove Petitioner and Timothy Davis ("Davis") to Romeyn Street, where Davis handed Petitioner a handgun. Trial Trans. [T.T.] 677-752. Thereafter, Petitioner went to 53 Romeyn and fatally shot Josue Calloway, Gary Green and Soueuth Heme. Petitioner was arrested after witnesses placed him on Romeyn Street, and one witness placed him exiting 53 Romeyn minutes before the police arrived at that location and found the victims' bodies. While in police custody, and in the presence of investigators, Petitioner told his girlfriend that he "killed those boys on Romeyn Street" because he owed them money, they had beaten him, and threatened his girlfriend and her family. Petitioner later signed a confession in which he stated that he went to the house on Romeyn Street armed with a handgun, and he started shooting after one of the occupants of the house yelled at him and reached for a gun. T.T. 322-326, 330-522, 540, 677-683, 685-686, 704, 709-712, 713-714, 753-756, 835, 838-888, 894-896, 898-904, 967-969, 980, 982, 989.

C. Verdict and Sentencing

At the close of the trial, the jury found Petitioner guilty of Murder in the Second Degree and two counts of Manslaughter in the First Degree, as lesser-included offenses. T.T. 1286-1287. The jury found Petitioner not guilty of three counts of Murder in the First Degree and Criminal Possession of a Weapon in the Second Degree. T.T. 1286-1287. The court sentenced Petitioner to an indeterminate term of twenty-five years to life imprisonment for murder, and two determinate terms of twenty-five years imprisonment for the manslaughter counts. The sentences were set to run consecutively. See Resp't Ex. A at 4 (Certificate of Conviction).

D. Direct Appeal

Through counsel, Petitioner appealed his judgment of conviction on the following grounds: (1) he was entitled to a missing witness charge with respect to Davis; (2) the verdict was against the weight of the evidence; (3) the trial court committed reversible error by restricting Petitioner's cross-examination of Jermaine Gross; and (4) the trial court's failure to impose post- release supervision for the sentences for first-degree manslaughter required that those sentences be vacated and that the matter be remitted for sentencing. See Resp't Ex. B. Petitioner also filed a pro se supplemental brief in which he argued that: (1) the trial court's jury instructions deprived him of a fair trial; (2) the verdict was repugnant; (3) his sentence violated Apprendi v. New Jersey, 530 U.S. 466 (2000), was violative of the Eighth Amendment, and that any resentencing would violate the Ex Post Facto clause; (5) the grand jury proceedings were defective; and (6) his statements were obtained in violation of his constitutional rights. See Resp't Ex. C.

The Appellate Division, Fourth Department determined that the trial court erred in failing to impose a period of post-release supervision in sentencing Petitioner on the first-degree manslaughter counts, thereby rendering the sentences with respect to those counts illegal. The appellate court modified the judgment by vacating the sentences imposed on the first-degree manslaughter counts, and remitted the matter to the trial court for re-sentencing. The court otherwise affirmed the judgment of conviction. People v. Gross, 71 A.D.3d 1526 (4th Dep't 2010) (Resp't Ex. H); lv. denied, 15 N.Y.3d 907 (2010) (Resp't Ex. K). On May 18, 2010, the Supreme Court resentenced Petitioner to a determinate term of twenty-five years imprisonment ...


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