United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Petitioner pro se Hector Gonzalez ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is being held in Respondent's custody in violation of his federal constitutional rights. Petitioner is incarcerated as the result of a judgment entered on April 29, 2010, in Erie County Court (Amico, J.) of New York State, following a non-jury trial convicting him of one count of second degree murder (N.Y. Penal Law § 125.25(1)) and one count of second degree criminal possession of a weapon (id., § 265.03(3)).
II. Factual Background and Procedural History
A. Summary of the Trial Testimony
Wanda Santana ("Santana") had two children with the decedent, Edwin Lasalle ("Lasalle"). During the spring of 2009, she began a four-month-long intimate relationship with Petitioner, whom she knew only as "Indio". Lasalle was aware of the former relationship between Sanatana and Petitioner; it was a source of contention among the three individuals.
On July 31, 2009, Lasalle drove Santana and her two-year-old son to Children's Hospital in the City of Buffalo to visit her stepbrother, Victor. After Victor was discharged a few hours later, Santana and several of her friends and family-members took a cab back to her neighborhood.
Santana stopped into the corner store to buy some chips and soda for her son, and then began walking towards Petitioner's home at 109 Auburn Avenue. She explained that the purpose of her visit was to attempt to resolve the tensions between Petitioner and Lasalle. Before Santana reached Petitioner's address, Lasalle approached her in his vehicle and began to argue with her, demanding that she get into the car. Lasalle turned his car around and drove the wrong way down Auburn, a one-way street, so that he could follow Santana. The two continued to argue.
As Santana passed 109 Auburn, she overheard Petitioner say in Spanish, "[G]ive me a gun!" Lasalle got out of his car, grabbed Santana's cell phone, punched her in the face, and threw her to the ground. Yaritza Acevedo-Rivera ("Rivera"), who had been at the hospital with Santana, witnessed the confrontation with Lasalle. Rivera, armed with a bat, began to argue with Lasalle. While Santana was on the sidewalk and Lasalle standing was next to his car, Petitioner, accompanied by several individuals, arrived and began arguing with Lasalle. Petitioner shot Lasalle in the head with a handgun from a range of about four to five feet. He and his companions then fled towards 109 Auburn.
Additional eyewitnesses observed the shooting. Briana Tirado ("Tirado") was living at 122 Auburn on the date of the incident. At around 4:00 p.m., she heard an argument outside followed by a loud noise that at first sounded like fireworks. Tirado then saw Petitioner, whom she knew lived at 109 Auburn, running towards his house and putting something in his waistband.
Lolitha Wright ("Wright"), who lived at 130 Auburn, heard an argument outside her house at about 4:00 p.m. on July 31, 2009. She saw a man and a woman, whom she did not recognize, arguing. As she turned to say something to her grandson, she heard a gun shot. Wright then saw Petitioner run towards West Street holding a shiny object in his hand.
Barbara Winslow ("Winslow") resided at 71 Dewitt Street. On July 31, 2009, at around 4:00 p.m., she heard a commotion outside her house. Looking outside, Winslow saw an argument between a man and a woman standing near a car parked facing in the wrong direction on Auburn Street. A second woman was nearby holding a baseball bat. Winslow saw two men approach the group, one of whom wrestled with the man who was arguing. As the man in the argument tried to get up, Winslow heard a gun shot. The man who had been arguing fell to the ground. Winslow, who could not identify the shooter, recognized the two men as being from the neighborhood; she had seen them before at 109 and 116 Auburn.
Rivera, the woman whom several witnesses saw holding a baseball bat, testified for Petitioner, her uncle. On July 31, 2009, she was staying with him at 109 Auburn. As she was walking back to 109 Auburn with Santana, they were approached by Lasalle in his car. Lasalle tried to hit them with his car and proceeded to beat Santana by striking her repeatedly and then kicking her while she was on the ground. Lasalle threatened to kill Santana and Petitioner. According to Rivera, upon seeing Lasalle attack Santana, Petitioner locked himself inside of 109 Auburn, did not come out to help Santana, and instructed Rivera to mind her own business. Rivera recalled that while Santana was on the ground, four to five individuals whom she did not know appeared on the scene, shot Lasalle, and then fled. Had Lasalle attacked her, she would have gone after him with a bat, which, according to her, she did not have at the time of the incident.
Samuel Mercedes ("Mercedes") was called as a defense witness and testified that on July 31, 2009, he lived at 33 Dewitt. Mercedes saw a man drive the wrong way down Auburn and get into a confrontation with two women, one of whom had a bat. He recalled hearing a gun shot but could not see the shooting or any of the participants in the altercation that preceded it. At the time, Mercedes believed the shooter was a woman.
As the result of complications from the gun shot wound to his right temple, Lasalle died on August 6, 2009. Santana gave a statement to the police implicating Petitioner as the shooter.
During their investigation, the police were unable to locate any shell casings, which suggested that the shooter had used a revolver. When police attempted to apprehend Petitioner at his Auburn Street residence, they could not find him. Buffalo Police Department Detective Brendon Kiefer obtained information from Petitioner's uncle that he was in Puerto Rico. Petitioner was arrested in Humanco, Puerto Rico on August 22, 2009, and returned to the United States.
Following his arrest, Petitioner phoned Santana numerous times and repeatedly urged her to contact his attorney, telling her that "him coming out [of jail] was in [her] hands.'" T.128-31. Petitioner ordered Santana not to date anyone else while he was away.
Abner Garcia ("Garcia"), who had a history of multiple felony convictions, was arrested for his involvement in a home invasion on October 4, 2009, and placed in the Erie County Holding Center. While there, Garcia ran into Petitioner, whom he had known for 15 years. When Garcia asked Petitioner why he had photos of Lasalle's girlfriend, Petitioner replied that "she was his". T.349. Petitioner confided to Garcia that he was in jail for murdering Lasalle. According to Garcia, Petitioner told him that Lasalle had pulled up to Santana on a one-way street and had gotten into an argument with her. Petitioner approached and shot Lasalle in the back of the head with a.38 caliber revolver and then ran towards West Street. Petitioner said that Santana was going to contact his attorney and change her statement to exonerate him. Petitioner explained that he had fled to Humanco, Puerto Rico, but one of ...