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Sell v. Conway

United States District Court, W.D. New York

June 16, 2014

DAVID SELL, Petitioner,
JAMES T. CONWAY, Respondent.


MICHAEL A. TELESCA, District Judge.

I. Introduction

Pro se petitioner David Sell ("Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his detention in state custody. Petitioner is incarcerated as the result of a judgment entered against him on September 12, 1997, in New York State Supreme Court, Erie County (Rossetti, J.) following a jury verdict convicting him of second degree (intentional) murder in the second degree (New York Penal Law ("P.L.") § 125.25(1)); second degree criminal possession of a weapon (P.L. § 265.03); and first degree reckless endangerment (P.L. § 120.25). He was sentenced to an aggregate sentence of 43½ years to life.

II. Factual Background and Procedural History

A. Overview

The charges against Petitioner stem from a shooting on October 21, 1995, which resulted in the death of Sheldon Newkirk ("Newkirk") and minor injuries to Gerald Webb ("Webb"). Over defense objection, the trial court granted the prosecution's motion to amend the indictment on July 23, 1997, to include a theory of accomplice liability under P.L. § 20.00, based upon the findings that Newkirk's body contained bullets fired from two different guns.

B. The Trial

A summary of the relevant trial testimony follows.

1. Gerald Webb

Prior to the shooting, Webb had known Petitioner for about three or four years. About two years prior to this incident, they had had a falling out because Petitioner had made some remarks to Webb that angered him. T.81.[1] Webb and Sell had a physical fight over Petitioner's comments.

On the night of Friday, October 20, 1995, Webb went to a party on Boehm Street with his girlfriend, Elizabeth Hernandez ("Hernandez"); his sister, Michele Bailey ("Bailey"); and his sister's boyfriend. Also present were Virgil Williams ("Williams") and Webb's good friend, Newkirk. T.50-51. In the early morning hours of October 21st, Webb left the party to go to the convenience store on Genesee and Bailey Streets. T.52. He was accompanied by Hernandez, Newkirk, Bailey, and Williams. As they were crossing the street, "a car pulled up and tried to hit [them]." T.52. Webb delivered a kick to the car and asked the driver (Petitioner), "what the hell was wrong with him". T.52. As Petitioner drove away, he said, "I'll be right back." T.52, 53.

Webb and his friends continued on to the store. As they were heading back down Boehm Street, Petitioner "flew by [them] in the car." T.54. When Webb and his companions got back to 29 Boehm, he saw Petitioner turn the corner onto Warring Street. Petitioner got out of the car and started coming back across the street towards them carrying a chrome pistol. T.57. Webb believed it was a pistol rather than a revolver because he did not see a round barrel. T.57. There were about three men with Petitioner when he first started walking across the street, but they "went other directions", leaving Petitioner by himself. T.57. According to Webb, Petitioner was "twirling" the pistol in his right hand as he walked up to the bottom of the steps of the porch. T.57.

Newkirk told Bailey and Hernandez to go upstairs and said to Petitioner, "[A]in't no need for no guns." Newkirk grabbed Webb, and they both turned to go into the house. T.58. That is when Petitioner started shooting at Webb and Newkirk. T.58. Webb was able to get to the door first; he looked around and saw Sell pull the trigger and shoot Newkirk. T.59. As Webb stumbled on the steps, bullets kept brushing his leg and his hands. The only injury he suffered was a laceration on his right hand from being grazed by a bullet. T.60.

When the shooting finally stopped, Webb ran upstairs to get a towel so that he could tend to Newkirk, who was not responsive by that point. When Webb returned to Newkirk's side, Sell was gone, the car he had arrived in was gone, and the people who had gotten out of Sell's car were gone. T.78.

Webb eventually learned about another shooting in the vicinity at around the same time: Michael Ridgeway, a guest at the same party on Boehm Street, had been shot by his brother, Terry Ridgeway, out in the street. Webb learned about the Michael Ridgeway shooting when he was in the patrol car going to give a statement. T.66. Webb denied that he knew the Ridgeway brothers, and maintained on cross-examination that he did not know them or anything about their reputation on the street. T.69, 81. Neither Webb nor any of his companions had a firearm that night. He did not see anyone shooting back at Petitioner or any of "these people in the street." T.64.

Defense counsel impeached Webb with inconsistencies between his trial testimony and his statement to the police. See T.70 et seq. Webb admitted that there was no reference to his having kicked Sell's car. T.71. Webb only described the weapon as a handgun; he did not indicate whether it was an automatic or what color it was. Id . Webb claimed that he told the police it "was like a silverish color chrome gun", but his statement did not reflect that. T.72. Webb further admitted that the part about Sell coming down the street twirling the gun was not contained in his statement to the police. Id . Webb conceded that it was not until a year and two months later that he told this story again to the prosecutor at the grand jury. T.73. Webb claimed that he "was in shock" when he first reported the incident. Id . On re-direct, the prosecutor pointed out that the statement commenced at the point of the narrative when Petitioner approached the porch where Webb and Newkirk were standing. T.84.

When asked to clarify his testimony about the other individuals who got out of the car with Petitioner, Webb stated that Petitioner was the only one coming in his direction. T.74. Webb did not know where the other individuals were. T.75. Although his statement to the police indicated that the other individuals "jumped out of the car and started shooting[, ]" Webb claimed that he did not remember telling the police that. T.75. Webb stated these other people pulled around the corner, parked the car, got out and "[t]hey just started-[Petitioner] started walking towards us. Where the rest of them went I don't know. I know where [Petitioner] was at." T.75.

2. Gordon Maston

Twenty-two-year-old Maston met Petitioner at the end of 1992, while they were both incarcerated. T.116. Maston considered Sell a friend, and the two had not had any disputes. T.117. On the night of the incident, Maston was walking by himself towards 29 Boehm from his sister's house on Bailey Street when he saw Petitioner "with a chrome gun shooting upon on the porch" and "somebody on the side of the porch" also shooting at people on the porch. T.119. Maston said the gun "could have been a chrome.380" or a "chrome nine" but he did not know for certain. T.119; T.139. Maston recalled that Petitioner "looked [him] dead in the face", turned away, and began shooting at the people on the porch. T.120. Maston related,

After I saw him shoot, ... I'm looking at him shoot, I just couldn't believe, you know what I'm saying, I was seeing him doing that. So, I got behind the tree because somebody was on the side of the street shooting too. When the firing ceased I walked back up the street to my sister's house.

T.121, 135. As Maston was approaching the corner of Bailey and Boehm, Petitioner was sitting his car. They looked at each other, and said, "[W]hat's up[?]" T.121. Petitioner replied, "[]I just bodied a nigger, I got to bounce.[']" Id .; see also T.136. Maston thought Petitioner meant that he had just killed somebody. Id . Before Maston could reply, Petitioner sped away in what Maston described as a red Acura Integra, a "little compact car." T.122, 137. Maston did not know where the Acura was parked during the shooting. T.137. There was one other male black in the car with Petitioner, whom Maston could not identify because he did not see his face. T.138. Maston had not consumed any alcoholic beverages or drugs that night, and recalled that the area was well-lit due to the street lights.

Maston claimed that he did not know the identities of the other people who were with Petitioner when he arrived on Boehm Street. Maston did see one other person shooting besides Petitioner, but Maston said, "I can't describe him. He was dark.... [Petitioner] is light, you know what I'm saying. The other character was dark skinned. Then he was on the side of the house behind the rail." T.132. Maston did not know who the second shooter was, and he did not give a description of him to the police or prosecutor. T.134. He did not see what kind of gun the other shooter had because he "wasn't paying attention to that" and it was dark on the side of the house where the person was, and so Maston could not see his face. T.139. Maston testified that he had heard of the Ridgeway brothers and their conviction for a murder about twenty-five years ago, based upon a news story he watched. T.135.

Maston admitted that he did not contact the prosecutor about his having witnessed the murder until 1997; he claimed that he waited to do so until Petitioner was caught, which was the "proper time." T.126. Maston admitted that he contacted his attorney to have the attorney contact the prosecutor on his behalf about the Petitioner case after he (Maston) had been indicted on a robbery charge. T.127. Maston admitted that he had a pending robbery charge that arose from an incident involving his ex-girlfriend, explaining that he wanted to take his car out of her name, and that she gave him the title, but then "called the cops and said that [he] took [his] title at gunpoint." T.122-23. While that case was pending, Maston advised the district attorney's office that he had witnessed the Newkirk/Webb shooting on Boehm Street. Maston testified that despite providing information regarding Petitioner's prosecution, he nevertheless was indicted for the robbery involving the car title. T.123. He testified on cross-examination that he received "[n]o deal." Id .; see also T.130 (Q: "You're not expecting to receive any benefit from this [i.e., testifying against Petitioner]?" A: "No, I'm not.").

3. Gail Buchanan

Thirty-one-year-old Gail Buchanan ("Buchanan"), who lived at 70 Warring on the date of the shooting, was friends with Newkirk, the murder victim. On the night of October 20th, Buchanan went to a party hosted by Gail Borum ("Borum") at 77 Warring. T.145. Buchanan said that Petitioner and Morrow were at the party. At some point, one of the speakers blew, and so Petitioner and Morrow left to go get new ones. T.148-49. They were gone for about 30 to 45 minutes. Id . Buchanan heard their car arriving back at the party but said, but they never came back in the house. Buchanan looked outside the door and saw Petitioner, who "seemed like he was upset and he was saying he was going back around the corner. Someone told him let that shit go, it's not worth it and he was like no, I'm going back around there." T.149. Buchanan went back into the house to use the bathroom. Upon hearing gunshots, she returned outside to see that everyone had left the house. She looked down towards the corner of Warring and Boehm where all she could see was "just a big commotion." T.149, 154. She then went across the street to her house to check on her kids. Id . Buchanan testified that she heard approximately four or five shots fired. T.155. Buchanan said that she did not know the Ridgeway brothers and did not know whether they were at the party at Borum's house. T.151.

4. Adrian Morrow

Morrow had met Sell on the street about eight months prior to the shooting. T.157. At Borum's party on October 20th, he and Petitioner, along with Fred Parsons ("Parsons") and a person named "Klee", left to go pick up some speakers at Morrow's house at 260 Percy. On the way back, Petitioner got into an argument with three guys on the corner because "[a]pparently somebody kicked the car." T.160. Morrow did not see anyone kick the car. Petitioner got out and "was arguing" with the guys on the corner. Then Petitioner got back into the car, and they drove down Boehm and turned onto Warring. Id . They popped the trunk, and Morrow removed a speaker and brought it into the house. When he returned, everyone had gone. Gunshots rang out around the corner, so Morrow ran in that direction. T.161.

Once at Boehm, Morrow saw Newkirk lying down on the porch. Sell was shooting "up in the air... [l]ike at the top of the house." T.161. Morrow testified that he heard "a lot of shots" before he got to the corner. Sell was firing a chrome-colored pistol. T.162.

According to Morrow, Michael Ridgeway was there, although he was still standing at the time Morrow arrived on the scene. T.163. Terry Ridgeway and Petitioner's friend, "Klee", both had handguns, but Morrow did not actually see them shooting. T.174. Neither Parsons nor Michael Ridgeway had guns. T.178,

At some point during the incident, Morrow saw Michael Ridgeway fall to the ground. He first thought Michael Ridgeway was "playing cause he was drunk." T.163. Morrow grabbed Michael Ridgeway's arm, pulled him up, and that is when he saw blood coming from the back of his head. Id . Petitioner, Terry Ridgeway, and "Klee" all left, but Morrow did not know where they went. T.164. Morrow described himself as "hysterical" by that point.

Morrow admitted that he had been convicted of third degree assault in 1992, for which he received a probationary sentence. Three years later, he was convicted of attempting resisting arrest. Most recently he had pled guilty to a drug charge in federal court. T.165. By the time he came forward in Sell's case, he had already been indicted and pled guilty in federal court. The prosecutor asked Morrow, "And according to federal law you're locked into a specific sentence, is that not true?" T.165. Morrow replied, "Yes." T.165. On cross-examination, Morrow admitted that his sentencing hearing had been adjourned, although he claimed not to know the reason for the adjournment. T.179-80. Morrow denied that he entered into a cooperation agreement with the United States Attorney's Office "so that he could get a better deal for himself." T.180. Morrow admitted knowing that the federal prosecutor had submitted a request on July 8th to adjourn his sentencing that had been scheduled for July 11th but claimed not to know the reason for the adjournment. Defense counsel marked the adjournment motion as an exhibit (Defendant's Exhibit D) for identification purposes. T.180. Morrow claimed that although his attorney had shown him the papers submitted on his behalf and dealt with by the attorney in federal court, Morrow had never seen the letter from the prosecutor marked as Defendant's Exhibit D. T.182. Morrow said, "I don't know why [it was adjourned]. My lawyer just called me and said that it was adjourned to August 15." T.183. The trial court interjected, "That's enough. You don't know why. Next question." T.183.

5. Virgil Williams

Twenty-two-year-old Williams was dating Webb's sister and had known Newkirk for about six months prior to the shooting. Williams did not know Sell and had no prior dispute with him. T195-96.

As Williams, Webb, Bailey, and Hernandez were on their way back from the store to Newkirk's house, "a car came speeding around the corner and we was [sic] walking in the middle of the street and it almost hit us." T.196. They started "yelling at the car or at the driver of the car slow down, watch where you [sic] going." T.197. The driver "backed up and he was like, what you say[?]" T.197. They repeated what they said-"slow down, watch where you [sic] going, you almost hit us." Id . The driver replied, "I'll be back" and pulled away, making a left turn at the next corner onto Warring, and then got out of the car and ...

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