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Cole v. Chappius

United States District Court, W.D. New York

April 7, 2014

AHMIR COLE, Petitioner,
v.
CHAPPIUS, Superintendent, Respondent.

DECISION & ORDER

HUGH B. SCOTT, Magistrate Judge.

Petitioner Ahmir Cole has filed an application to this Court for habeas corpus relief pursuant to 28 U.S.C. § 2254 challenging his state court convictions. He asserts the following grounds in support of his Petition: severance and joinder of offenses, insufficient evidence of first degree murder, ineffective assistance of counsel, and other claims (Docket No. 34, Am. Pet.). The parties consented to proceed before the undersigned as Magistrate Judge (pursuant to 28 U.S.C. § 636(c)) (Docket No. 12, March 15, 2012).

BACKGROUND

Offense and State Court Proceedings

This habeas Petition arises from petitioner's conviction in two trials from the shooting of Salah Ahmed in April 5, 2006, at his Kenmore, New York, store; the murder of George Pitliangus at Tony's Ranch House Restaurant on April 14, 2006; an incident with Anthony Dawson, on May 7, 2006, at the Groove Night Club; and criminal possession of contraband found during a traffic stop on May 29, 2006 (Docket No. 1, Pet.; see Docket No. 34, Am. Pet.). Petitioner was convicted of murder in the first degree; attempted robbery in the first degree; robbery in the first degree; criminal possession of a weapon in the second degree; attempted murder in the second degree; assault in the second degree; assault in the first degree; criminal possession of controlled substance in third degree; attempted murder in the first degree; and murder in the second degree.

Petitioner was indicted in a twenty-one count Indictment, N.Y. Erie County Ct., No. 00952-2006. Upon petitioner's motion, these counts were tried in separate trials (Docket No. 11, Resp't Br. at 1-2). Counts 1-6 arise from the shooting of Ahmed, while counts 7-12 arise from the murder of Pitliangus. Counts 15-18 arise from the Groove Night Club incident with Dawson. The remaining counts are the criminal possession charges.

Below is a table of the charges alleged in these counts.

Count Charge and Facts 1 attempted murder in the first degree, April 5, 2006, with Salah Ahmed at Kenmore store, in violation of N.Y. Penal L. §§ 110.00 (attempt), 125.27(1)(a)(vii) 2 attempted murder in the second degree, April 5, 2006, in violation of Penal L. §§ 110.00, 125.25(1) 3 robbery in the first degree, April 6, 2006, with loaded pistol, in violation of Penal L. § 160.15(2) 4 robbery in the first degree, April 6, 2006, with injury to Ahmed, in violation of Penal L. § 160.15(2) 5 assault in the first degree, April 6, 2006, in violation of Penal L. § 120.10(1) 6 criminal possession of weapon in second degree, April 6, 2006, in violation of Penal L. § 265.03(2) 7 murder in the first degree, April 14, 2006, at Tony's Ranch House, of George Pitliangus, during course of attempted robbery, in violation of Penal L. § 125.27(1)(a)(vii)

8 murder in the second degree, April 14, 2006, in violation of Penal L. § 125.25(1) 9 murder in the second degree, April 14, 2006, while attempting a robbery, in violation of Penal L. § 125.25(3) 10 attempted robbery in the first degree, April 14, 2006, in violation of Penal L. §§ 110.00, 160.15(2) 11 murder in the first degree, April 14, 2006, during course of a robbery, in violation of Penal L. § 125.27(1)(a)(vii) 12 murder in the second degree, April 14, 2006, during course of a robbery, in violation of Penal L. § 125.25(3) 13 robbery in the first degree, April 14, 2006, in violation of Penal L. § 160.15(2) 14 criminal possession of weapon second degree, April 14, 2006, in violation of Penal L. § 265.03(2) 15 attempted murder in the second degree, May 7, 2006, Andrew Dawson, at Groove Night Club, in violation of Penal L. §§ 110.00, 125.25(1) 16 robbery in the first degree, May 7, 2006, in violation of Penal L. § 160.15(2) 17 assault in the second degree, May 7, 2006, in violation of Penal L. § 120.05(6) 18 criminal possession of weapon in the second degree, May 7, 2006, in violation of Penal L. § 265.03(2) 19 criminal possession of controlled substance in the third degree, May 29, 2006, possessing cocaine, in violation of Penal L. § 220.16(1) 20 criminal possession of controlled substance in the fifth degree, May 29, 2006, possessing 500 milligrams or more of cocaine, in violation of Penal L. § 220.06(5) 21 criminal possession of weapon in the third degree, May 29, 2006, in violation of Penal L. § 265.02(4)

Upon his motion, petitioner was tried in two severed trials (trying counts 7-21 on February 26, 2007, and then counts 3-6 on July 30, 2007, while counts 1-2 were dismissed).

Tony's Ranch House, April 14, 2006

During the robbery at Tony's Ranch House, the suspect showed the owner, Pitliangus, a gun which Pitliangus said was a mere toy. Shots then were fired. Travis Cochran, petitioner's friend, testified that petitioner wanted to rob Tony's Ranch House and petitioner had displayed a.22 caliber Ruger pistol. (Docket No. 11, Resp't Br. at 6; Murder Trial Tr. at 542, 547-54, 614-15, 617-28, 630-31.)

Groove Night Club, May 7, 2006

On the night of May 7, 2006, Anthony Dawson was leaving the Groove Night Club when petitioner approached him and demanded his gold chain. Dawson refused. Petitioner then fired a shot at Dawson and left with the chain. A shell casing was later found in the night club's door and it matched the shell casing found at Tony's Ranch House. (Docket No. 11, Resp't Br. at 7.)

On May 29, 2006, petitioner was stopped while driving his girlfriend, Tamika Hunter's, car and drugs and a gun were recovered from the car. The recovered gun had a partial DNA profile of petitioner on it. (Id. at 8-9.)

Salah Ahmed, April 5, 2006

On April 5, 2006, Ahmed was a cashier at a Kenmore corner store. After 10 pm, a masked man entered the store and ordered Ahmed to open the cash register at gun point. Cochran later testified that he wanted to rob this store and petitioner served as look out as the robbery occurred. Petitioner later admitted to his girlfriend, Hunter, that he and Cochran robbed the Kenmore store. (Id.)

Trials

After petitioner moved to sever the Tony's Ranch House and Groove Night Club incidents from the Ahmed robbery, and the dismissal of two counts, he was convicted in both trials of most of the remaining nineteen counts[1]. He was sentenced to life in prison for the murder conviction with ...


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