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Rouse v. Attorney General of State of New York

United States District Court, Second Circuit

May 31, 2013

JACOB ROUSE, Petitioner,


MICHAEL A. TELESCA, District Judge.

I. Introduction

Pro se Petitioner Jacob Rouse ("Petitioner" or "Rouse") 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 September 25, 2006, in New York State, Monroe County Court, convicting him, upon a jury verdict, of Murder in the Second Degree (N.Y. Penal Law ("Penal Law") § 125.25[3] (felony murder)).

For the reasons that follow, habeas relief is denied and the petition is dismissed.

II. Factual Background and Procedural History

A. Introduction

On March 9, 2006, Petitioner, Antwon Owens ("Owens"), Brandon West ("West"), and Lucious Peters ("Peters") set out to commit a robbery in Rochester, New York. Petitioner picked up the three men in his vehicle and drove them around looking for potential robbery targets. The men were armed with a shotgun, a.22 caliber pistol, and a pellet gun. Shortly before 11:00 p.m., Petitioner parked his car on Magnolia Street. Petitioner remained in the car while the other three men left the vehicle. Owens carried the shotgun, West carried the.22 caliber gun, and Petitioner gave Peters his pellet gun. The three men walked up to a car that was backing out of a nearby driveway. The three men surrounded the vehicle, which had stopped when the driver, Hershel Scriven ("Scriven" or "the victim"), realized people were behind the car. Scriven, realizing that the men were armed, reversed his vehicle and, as he did so, West fired shots at the car and Owen fired one shot through the driver's side window that hit and killed Scriven. The men then ran back to Petitioner's parked car and Petitioner drove them away from the scene.

In April 2006, a Monroe County grand jury charged Owens with first-degree murder, and Petitioner and Peters with second-degree (felony) murder.[1] Trial Trans. [T.T.] 313-314. The indictment charged Rouse as an accomplice to the events of March 9, 2006, pursuant to Penal Law § 20.00. T.T. 314-315.

Petitioner and his co-defendants were tried separately.[2] On September 18, 2006, Petitioner proceeded to trial before the Hon. Frank P. Geraci, Jr. and a jury.

B. The Trial

1. The People's Case

On March 9, 2006, Melinda Nelson ("Nelson"), Jerry Lattimore Humphrey ("Humphrey"), Ashley Snead, and Scriven, all of whom were members of the Disciples of Christ Community Choir, went to see a play together. Trial Trans. [T.T.] 350-351, 414, 441, 471-473. Ashley Snead's son, Miracle Snead, was also with the group. T.T. 441. After the play, Scriven drove Nelson's car to Ashley Snead's house on Magnolia Street for purposes of dropping off Miracle Snead and to pick up Ashley Snead's sister, Nicole Snead. The group planned to go to Applebee's Restaurant. T.T. 352, 414-415, 441, 473.

As Scriven pulled the car out of the driveway, Nicole Snead told Scriven to stop the car because there were three people walking behind the car. Scriven braked and stopped the car without hitting the individuals behind the car. T.T. 357, 418-420, 443-444, 474-475. A person wearing a mask approached the driver's side window and stood in front of the car pointing a gun at Scriven. T.T. 359, 423, 444, 476. A second man stood by the passenger side of the car. T.T. 424. Nelson, who was in the front passenger seat, in a panic, screamed, "get us out of here" and Scriven put the car in reverse. T.T. 360, 424-425, 448, 479. As Scriven tried to drive away, shots were fired. T.T. 426-427. Scriven, struck by a bullet, slumped over the steering wheel as blood dripped from a hole in his head. T.T. 481. The car crashed into the porch of a house across the street from Ashley Snead's house. T.T. 361-363, 449-450, 481. Nelson got out of the car and ran. Humphrey called 911 and the three remaining occupants stayed crouched in the car until police arrived. T.T. 450-451, 481.

Arthur Tariq Robinson ("Robinson"), Ashley Snead's neighbor, heard gunshots shortly before 11:00 p.m. on the night of the incident. T.T. 459-460. Robinson testified that "[t]he first two, three [gunshots], maybe, were real small... and the last one was real loud and distinctive." T.T. 460. When he heard the gunshots, Robinson ran to his front window and saw three men running past his house towards a Ford Taurus that was parked down the street with its lights off. T.T. 461. All three of the men were black males, two were "really dark" and "one [was] really light." T.T. 461. One man was very tall and the other two were shorter. T.T. 461, 463. The taller man appeared to be putting a handgun in his coat pocket. T.T. 462. The three men got into the parked Ford Taurus, and the car drove away with its lights off. T.T. 464.

At approximately 10:54 p.m., Sergeant David Gebhardt of the Rochester Police Department ("RPD") responded to the 911 call and was flagged down by a man on Magnolia Street who directed him to Nelson's car. T.T. 327-329. Sergeant Gebhardt found Scriven in the driver's seat of the car. Scriven had ben shot in the head and was breathing sporadically, but did not appear to be conscious. T.T. 329.

Kenneth Welling ("Welling"), a technician with the RPD, photographed the crime scene and noted that the car had three bullet holes in the windshield and one bullet hole in the passenger side window. T.T. 395. Welling also collected a bullet fragment from inside the car. T.T. 403.

On March 15, 2006, Dr. Caroline Dignan performed Scriven's autopsy. T.T. 701-702. She removed several bullet fragments from Scriven's head and brain. T.T. 704. She noted that there were massive injuries to the brain, and opined that Scriven's death was caused by a gunshot wound to his head. T.T. 706-707.

On April 3, 2006, at approximately 1:45 p.m., Investigator Thomas Cassidy and Police Officer Angel Vasquez of the RPD took Petitioner into custody outside of a drugstore. T.T. 494, 497, 507. As Petitioner exited the blue Ford Taurus he was driving, Investigator Cassidy and Officer Vasquez drew their guns and told Petitioner to put his hands up. Petitioner complied, and stated, "I have a BB gun in the car." T.T. 497. Investigator Cassidy looked in the car, saw the BB gun, and had the car towed to the police station without removing the gun. T.T. 499. Officer Vasquez brought Petitioner to the police station and placed him in an interview room. T.T. 508-509.

At approximately 2:35 p.m., Investigators David Salvatore and William Lawler of the RPD interviewed Petitioner. T.T. 517, 521-522. First, they asked Petitioner pedigree and background information, and then advised him of his Miranda rights. T.T. 523-524. Investigator Salvatore asked Petitioner if he owned a car and Petitioner replied that he owned a blue Ford Taurus. T.T. 528. He then asked Petitioner if he was aware of the shooting on Magnolia Street where a man was killed. Petitioner responded that he had heard about it from the news. T.T. 528. When Investigator Salvatore responded that he did not believe that Petitioner was being completely honest, Petitioner replied that he was a good kid and that he was in the Army Reserves and wanted to go to Iraq. Petitioner added that he did not hang around bad people. The investigators then left Petitioner in the interview room. T.T. 528. About forty minutes later, the investigators returned with a wiretap order from an unrelated case and a photo array, which included a photo of West. T.T. 530-531. Petitioner stated that he did not recognize anyone. T.T. 531. With respect to the wiretap, the investigators told Petitioner - although it was not true - that they had been wiretapping Peters's phone calls and that Peters had implicated Petitioner. Petitioner denied involvement. T.T. 531. The investigators then told Petitioner that Peters had confessed to the crime and implicated Petitioner and that Peters was in the station being interviewed. T.T. 533. Petitioner asked if he could see Peters and the investigators escorted Petitioner past the interview room where Peters was being questioned. Petitioner did not speak to Peters, but was permitted to look in the room. T.T. 534. Petitioner was brought back to the interview room where he stated, "I was there, but I only drove." T.T. 534-535. Petitioner then admitted that he knew West. T.T. 535.

At approximately 5:30 p.m., Petitioner was shown another photo array containing Owens's picture, and Petitioner identified Owens. T.T. 537. Petitioner explained that on the night of the shooting, he picked up West, Owens, and Peters. T.T. 539. The men discussed committing a "juke", which meant a robbery. West had a handgun, Owens had a sawed-off shotgun and Petitioner had a pellet gun. Petitioner stated that he gave the pellet gun to Peters and acknowledged that it was the same gun recovered from his car. T.T. 540. Petitioner explained that he drove the men to Magnolia Street where they looked for someone to rob. The first person that the men followed went inside a house. Petitioner then saw a car coming out of a driveway, which almost hit his three cohorts. He heard shots fired and a loud bang. Petitioner saw West fire his gun, but could not see Owens. T.T. 541. The three men then ran back to the car and someone said, "it shouldn't have went down like that." Thereafter, West stated, "the car almost him me." T.T. 541. Petitioner then dropped the men off and spent the night with a friend. T.T. 541. Petitioner stated that West and Owens were brothers. T.T. 542. At no point did Petitioner request an attorney, and he was not threatened or promised anything in exchange for his statement. T.T. 552. Petitioner then consented to a search of his vehicle, in which the pellet gun was taken as evidence. T.T. 543-544.

Investigator Randall Benjamin of the RPD spoke to Petitioner later that evening. He asked Petitioner if he had spoken to the other men earlier on March 9, 2006 to plan the robbery. Petitioner stated that he made two phone calls to the men earlier in the evening regarding the robbery. T.T. 601. Petitioner also stated that before the shooting, he and the men had followed three other people with the intent to rob them. Petitioner then signed a three-page written statement about the incident. T.T. 603-607. During the interview, Petitioner stated that he deserved whatever punishment he received and stated, "whatever you guys want to do with me, you can do with me." T.T. 607-608.

Eric Freemesser, of the Monroe County Public Safety Laboratory, examined bullet fragments from Nelson's car and determined that they were fired from a.22 caliber handgun. T.T. 718-719. He also examined the fragment received from the medical examiner's office and determined that, based on its weight, it was ...

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