The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se Petitioner Antoine Davis ("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 January 7, 2010, in New York State, County Court,
Erie County, convicting him, upon a non-jury verdict,*fn1
of Attempted Assault in the First Degree (N.Y. Penal Law
("Penal Law") §§ 100.00, 120.10), Endangering the Welfare of a
Child (Penal Law § 260.10), Menacing in the Second Degree (Penal
Law § 120.14), and Aggravated Harassment in the Second Degree
(Penal Law § 240.30).
II. Factual Background and Procedural History
Petitioner was charged in a five-count indictment with Attempted Assault in the First Degree (Penal Law §§ 100.00, 120.10), Attempted Assault in the Second Degree (Penal Law §§ 100.00, 120.05), Endangering the Welfare of a Child (Penal Law § 260.10), Menacing in the Second Degree (Penal Law § 120.14), and Aggravated Harassment in the Second Degree (Penal Law § 240.30). The charges arose from an incident that occurred on July 7, 2008 in the City of Buffalo, New York, wherein Petitioner squirted lighter fluid on Pamela Ervin ("Ervin"), and threatened to set her aflame. See Erie County Ind. No. 01870-2008, dated 09/10/08 at Resp't Ex. A.
In July 2008, Petitioner was living with then-girlfriend Ervin at her apartment at 199 Hastings, but they were in the process of breaking up. Trial Trans. [T.T.] 9-13. On the morning of July 7, 2008, Petitioner and Ervin had an argument over the possibility of another woman in Petitioner's life, and Ervin told Petitioner "[she] wanted him to get out." T.T. 13. Later that same day while Ervin was at her uncle's home, she received numerous text messages on her cell phone from Petitioner inquiring about her whereabouts. T.T. 12-13. When Ervin refused to answer her phone, Petitioner's text messages began to change, indicating that "[he] was going to fuck [Ervin] up." T.T. 12. Ervin left her uncle's home and picked up her friend, Beth Moore ("Moore"), and Moore's one-year child, Shardon. T.T. 13. Thereafter, Ervin, Moore, and Shardon returned to Ervin's apartment. T.T. 14.
Back at her apartment, Ervin received a call from Petitioner and an argument ensued over Petitioner's personal belongings. Petitioner also indicated to Ervin on the phone that he wanted returned to him a bracelet he had bought for her. T.T. 14. Petitioner hung up the phone and eventually called back and told Ervin to open her door. T.T. 15. Petitioner stated to Ervin that "[he] [would] bust the window out if [Ervin] didn't open the door." T.T. 15. After some reluctance, Ervin opened the door to let Petitioner inside to collect his belongings. T.T. 15.
Petitioner entered the apartment and walked into the kitchen where Moore and Shadron were sitting at the kitchen table. T.T. 16. Ervin turned around to the counter to take the bracelet off. When she turned around, Petitioner had a white plastic container of lighter fluid and began squirting the lighter fluid on Ervin from her neck down to her feet. T.T. 18-20, 37, 68-69. Ervin testified that she recognized the white plastic container as lighter fluid and smelled the odor of lighter fluid. T.T. 19, 21. After Petitioner stopped squirting Ervin with the lighter fluid, he stated to her, "bitch, I'm going to burn you" and then patted his pockets. T.T. 21, 22, 69-70, 75. Ervin testified that she felt "like [Petitioner] was gonna get a lighter out of [his] [pocket] and set [her] on fire . . . ." T.T. 22. Ervin testified further that she knew Petitioner to be a smoker and to carry matches or a lighter. T.T. 22. Moore then got up from the kitchen table, carrying Shadron, and she tried to run. T.T. 22, 70. Petitioner grabbed Moore's shirt and stated, "bitch, you ain't going nowhere." T.T. 22, 70, 75. While Petitioner held Moore's shirt, Ervin attempted to run. Petitioner let go of Moore and grabbed Ervin's shirt, ripping it. Ervin broke free from Petitioner's grasp and ran outside to a neighbor's house and called the police. Shortly thereafter, Petitioner exited Ervin's apartment and fled the scene. T.T. 24-25.
Later that same evening and into the following day, Ervin received numerous phone calls and text messages from Petitioner, in which Petitioner called Ervin a "bitch," indicated that he was "going to fuck [her] up," and that he was "going to get [her]." T.T. 27-29. Ervin testified that she was frightened for her safety at this time. T.T. 28.
On July 23, 2009, Petitioner was found guilty of all counts of the indictment, except count two (attempted assault in the second degree), which the trial court dismissed as a lesser-included offense. Verdict Mins. of 07/23/09 at 2.
After the trial court rendered its verdict, Petitioner, through counsel, filed a N.Y. Crim. Proc. Law ("CPL") § 330.30 motion to set aside the verdict on the basis that he was not informed during the trial that his trial attorney had previously represented prosecution witness Moore, creating the potential for a conflict of interest. After oral arguments, the court denied the motion. See Sentencing Mins. [S.M.] of 01/07/10 at 2-6; Decision and Order of the Erie County Court, dated 03/02/10 at Resp't Ex. A.
Petitioner was subsequently sentenced, as second violent felony offender, to a determinate term of seven years imprisonment plus five years of post-release supervision for attempted assault in the first degree, and definite terms of one year imprisonment for each of the remaining convictions. All of the sentences were set to run concurrently. S.M. 14-16.
Represented by counsel, Petitioner appealed his judgment of conviction on the grounds that the evidence was legally insufficient to support his conviction of attempted assault in the first degree and that the verdict was against the weight of the evidence; and that he was denied effective assistance of counsel because of his counsel's conflict of interest. See Pet'r Br. on Appeal at Resp't Ex. B. The Appellate Division, Fourth Department determined that Petitioner's claims were meritless and unanimously affirmed the judgment of conviction on April 29, 2011. People v. Davis, 83 A.D.3d 1492 (4th Dep't 2011) (Resp't Ex. B); lv. ...