United States District Court, S.D. New York
REPORT AND RECOMMENDATION
PAUL E. DAVISON, Magistrate Judge.
TO THE HONORABLE CATHY SEIBEL, United States District Judge:
On October 10, 2005, petitioner Rodney Alston ("petitioner" or "defendant") fatally shot Dacheau Brown outside Club Eclipse in New Rochelle, New York. On August 1, 2006, a Westchester County jury convicted petitioner of second degree murder (N.Y. Penal Law § 125.25(1)), second degree criminal possession of a weapon (N.Y. Penal Law § 265.03) and third degree criminal possession of a weapon (N.Y. Penal Law § 265.02(4). He was sentenced on September 25, 2006 to concurrent terms of twenty years to life imprisonment (murder), fifteen years imprisonment with five years post-release supervision (criminal possession second) and seven years imprisonment with three years post-release supervision (criminal possession third). Petitioner is currently incarcerated at Great Meadow Correctional Facility in Comstock, New York.
Presently before this Court is petitioner's pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. This petition is before me pursuant to an Order of Reference dated December 20, 2012 (Dkt. #7). For the reasons set forth below, I respectfully recommend that Your Honor deny the petition in its entirety.
A. Evidence Adduced at Trial
Thirty-three year old Dacheau Brown, nicknamed "2-5, " owned a party promoting business called "Deuce Nickel Entertainment." T. 506, 509, 517. On Sunday, October 9, 2005, Brown arranged a party at Club Eclipse. T. 511, 517, 519. Brown's girlfriend, Keshia South, often assisted Brown at his Club Eclipse parties by collecting money at a booth near the front door. T. 517-18. On October 9, 2005, South arrived at Club Eclipse a little after 11:00 p.m. T. 517, 519. Brown was already there. T. 519-20. Anthony Bowden, the front door bouncer, arrived around midnight. T. 546-47.
Over one hundred people came to Brown's party that night (and into the next morning). T. 520. Bowden frisked everyone for contraband (particularly knives and guns) before they were allowed to enter. T. 535-36, 549. Bowden testified that he also checked everyone's identification. T. 559. Customers were allowed to enter if they were eighteen and, according to South and Bowden, were given a wrist band if they were twenty-one or older (so the bartender knew they were old enough to drink). T. 542, 559-60. Devron Chambers testified, however, that he was at Club Eclipse on the night in question, that he had been there on one other occasion and drank alcohol even though he was underage, and that he never saw anyone checking identification at the club. T. 575, 584-85. Jack Benjamin, who was also present on the night in question, testified that he had been going to Dacheau Brown's parties every week for the past year and there was no rule about how old you had to be to drink at those parties. T. 711-12, 727-79.
Petitioner, who was eighteen, arrived at the club via taxi between 12:30-1:00 a.m.; Bowden patted him down, found no contraband and allowed him to enter. T. 549, 553, 562-63, 899-901. Upon entering the club, petitioner met up with "a lot of people, " including Carlos Brickle, Rich Falkner and Ray Gilkes. T. 923. The club sold liquor by the glass and by the bottle. T. 752. Petitioner and two of his friends immediately purchased two bottles of Hennesey for $240 and started drinking. T. 902-05, 923. Five people shared in the bottles of Hennesey; both bottles were finished by the time petitioner left the club. T. 905.
Benjamin testified that he "hung out" with petitioner at the club that night and they were both drinking. T. 714. Petitioner showed him a chrome colored handgun and told Benjamin if he "had any problems, " he (petitioner) was there for him. T. 714-16. Benjamin replied that he "was good" and "there was no problem." T. 716. Benjamin told Brown and Kendall Miller (Brown's business partner) that petitioner had a gun, but they did nothing. T. 726-17, 752.
By 2:30 a.m., petitioner was stumbling around and feeling drunk. T. 906. Around that time, petitioner asked Donald Evans (who was videotaping the party) to come into the bathroom and tape something. T. 671-72, 695-96. Evans filmed petitioner and four of his friends screaming and chanting and waving money around. T. 696. Petitioner had a chrome revolver and a glass of alcohol in his hands, and there was a bottle of Hennesey right behind him. T. 672, 696. According to petitioner, his friend, Jaishon Banks, gave him the gun "to use on the DVD." T. 906-07. Evans filmed petitioner opening the gun and showing the bullets inside. T. 673. Although Evans thought petitioner was "out of control" in the bathroom, wildly screaming and chanting, Evans believed petitioner was completely sober. T. 698. After Evans left the bathroom, he told Brown that petitioner had a gun. T. 677. Evans later gave the police a copy of approximately forty seconds of video showing petitioner and his friends in the bathroom. T. 694-95.
Kevin Calvin was working at the club on the night in question and first noticed petitioner standing against a wall with a group of his friends, drinking. T. 636-38. Later that night, Calvin saw petitioner in the bathroom with a group of his friends, collectively chanting, screaming and laughing while someone videotaped them. T. 656-67. Petitioner was waving around a chrome or silver revolver, saying things like "these niggers can get it" and "we get it poppin." T. 639-40, 657. "Poppin" is a "common term used among inner city youth" which means "we are not afraid to do things, we'll fight, we'll shoot, we'll do whatever." T. 641. Calvin noticed the Hennesey bottle near petitioner; it appeared to Calvin that ...