United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Proceeding pro se, Robert Anthony ("Anthony" or "Petitioner"), seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is being detained in Respondent's custody in violation of his federal constitutional rights. Anthony is incarcerated pursuant to a judgment entered on May 19, 2008, in New York County Court, Ontario County (Doran, J.), following a jury verdict convicting him of first degree burglary (N.Y. Penal Law § 140.30(2), (3)), first degree assault (id., § 120.10(1)), and third degree criminal possession of a weapon (id., § 265.02(1)).
II. Factual Background and Procedural History
Petitioner's conviction stems from an incident that occurred on June 18, 2007, in which Petitioner struck Jacob Vandemortel ("Jacob") with a metal pipe or rod, hitting his head and breaking his arm. At the time of the attack, Jacob was having sex with his estranged wife and mother of his child, Elisha Vandemortel ("Elisha"). Elisha, although still married to Jacob, was involved in a relationship with Petitioner. As a result of the assault, Jacob sustained permanent, visible scars on his head and limited arm mobility.
A. Petitioner's Trial
Jacob lived at 81 North Genesee Street in Geneva, New York. His uncle's family lived in the home attached to his, at 79 North Genesee Street. As of the time of the incident, Jacob and Elisha were married but living apart. Elisha was staying at 72 Wadsworth Street with Petitioner, whom she was dating. Jacob had known Petitioner for about two to three weeks at that time, but had no social relationship with him. Apparently, Jacob had seen Petitioner outside his uncle's home, and Petitioner announced that he wanted to fight him.
On June 18, 2007, Jacob was temporarily staying at 79 North Genesee Street to watch his 14-year-old cousin, Todd Vandemortel ("Todd"), while Todd's family was in Rochester. Jacob's friend, David Collins ("Collins"), also planned to sleep there that night. At about midnight, Collins was settling in on a couch downstairs. Elisha and Jacob were in the upstairs bedroom, having sex. Elisha had left her and Jacob's two-year-old child with Abrianna "Sweet Pea" Pesante ("Pesante") and Megan Vandemortel ("Megan"), Todd's sister, at 72 Wadsworth Street.
According to Pesante,  when Petitioner had been at 72 Wadsworth Street earlier that night, he had been told by Megan that Elisha was visiting Jacob. Pesante called Elisha twice and told her to come home, but Elisha did not. Pesante then went over to 79 North Genesee Street. Todd let her in, and she told him she wanted to speak with Elisha.
As Todd and Pesante mounted the stairs, Petitioner "busted in the [front] door" and ran past them. Todd saw a brown object in Petitioner's hand; Collins described it as a brown rod or metal pipe. Pesante testified that Petitioner was holding an object, but stated she did not know whether it was a metal pipe. At that point, Pesante left the house.
Once upstairs Petitioner kicked in the door to the bedroom where Jacob and Elisha were having sex. Collins heard Jacob yell, "[M]otherfucker!" According to Jacob, he and Elisha were in the missionary position when Petitioner burst into the room. Jacob turned to the side and put his arm up in an attempt to shield his face and head against Petitioner's blows. Petitioner hit Jacob with a steel bar once, striking Jacob's head and arm, and then ran from the room. Jacob briefly gave chase but stopped because he was bleeding profusely. From the top of the stairs, Jacob yelled to Collins to call an ambulance.
Collins and Todd saw Petitioner jump down the entire flight of stairs and run from the house. Todd recalled that Petitioner looked right at him as Petitioner passed through the brightly-lit area at the bottom of the staircase.
Trial counsel called Elisha to testify for the defense. Elish testified that although they were living apart, she and Jacob still had sexual relations "mostly for money so [she] could buy stuff to help [her] [drug] habit so [she] wouldn't get dope sick." T.254. Elisha testified that she and Jacob used heroin and smoked crack daily. She also claimed that, before the trial had begun, she had been to "detox" and was using only methadone. On cross-examination, she admitted that she had used crack cocaine the day before appearing at trial. Elisha acknowledged serving jail time for violating probation for an unnamed conviction. She twice had been convicted of possession of a hypodermic instrument, and also had been also convicted of unauthorized use of a motor vehicle and petit larceny. She served prison time for possession and sale of heroin.
On June 18, 2007, she brought her and Jacob's baby to see Jacob, because it was Father's Day. At some point she brought her baby back to the apartment she shared with Petitioner on Wadsworth and returned to 79 North Genesee Street. According to Elisha, she and Jacob used drugs and consumed alcohol that night. She blacked out at around midnight while they were having sex. She did not recall seeing Petitioner in the bedroom and did not see anyone strike Jacob, although she was aware that Jacob did sustain a head injury. Elisha eventually returned to Wadsworth Street to look for her baby; she picked him up at the police station and spent the night at a friend's house.
After Elisha's testimony, trial counsel stated that he would need to secure the attendance of Cody Adams ("Adams"), who was incarcerated. The following morning, Adams was produced in court. The prosecutor noted that he had gone to the jail the night before to talk with Adams, who said that he had not been present when the crime occurred and then refused to speak any further. The prosecutor objected to trial counsel's request to call Adams on the basis that he did not have relevant testimony to offer. Trial counsel explained that Adams was related in some manner to Jacob, and that Jacob had told Adams, at a family gathering, that "they were setting up [Petitioner] and that he, in fact, was not the one that hit people on the head." T.272. In response, the prosecutor argued that the statement was hearsay and that, in any event, trial counsel first was required to lay a foundation for that testimony by asking Jacob whether he had made the statement that Adams assertedly would attribute to him. Trial counsel argued that Adams' testimony was admissible as a statement against Jacob's penal interests.
Following a recess, the trial judge held that Adams' proposed testimony was hearsay but also amounted to a declaration against Jacob's penal interests. However, because there was no independent evidence to support Adams' purported statement that Jacob said they were "setting Petitioner up" (i.e., evidence that someone other than Petitioner committed the crime), the trial judge held that Adams' testimony did not have sufficient indicia of trustworthiness. Since trial counsel was unable "to put forth any other specifics upon which [t]he [c]ourt would permit that evidence to come in, " the trial court precluded Adams' proposed testimony.
Trial counsel proposed recalling Jacob to lay a foundation for the admission of Adams' testimony, and the trial court agreed that counsel was entitled to make that application. The prosecutor noted that if trial counsel did call Jacob to testify as a defense witness, he could not later impeach him. The trial court indicated that it would take a brief recess to consider the legal issues raised by Adams' proposed testimony. The court also asked Petitioner directly whether he had discussed with his counsel whether he would testify, and whether he had made the decision not to testify knowingly and voluntarily. Petitioner stated that after discussing the matter with counsel, he had decided not to testify.
When court reconvened five minutes later, trial counsel announced that he was withdrawing his application to call Adams, and he rested his case. Trial counsel did not explain why he was not calling Adams, and the judge did not address the matter further. T.281-82.
On March 21, 2008, the jury convicted Petitioner as charged in the indictment. Following a hearing, the trial court adjudicated Petitioner a persistent violent felony offender. Petitioner received ...