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Cox v. Lee

United States District Court, W.D. New York

November 26, 2014

HENRY COX, Petitioner,
v.
WILLIAM LEE, Superintendent of Green Haven Correctional Facility, Respondent.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Pro se petitioner Henry Cox ("Petitioner") has filed a petition for a writ of habeas corpus pursuant to § 2254, alleging 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 against him on April 29, 2008, in New York State Supreme Court, Monroe County (Affronti, J.), following a jury verdict convicting him of two counts of robbery in the first degree (N.Y. Penal Law § 160.15(1), (2)).

II. Factual Background and Procedural History

A. Petitioner's Trial and Conviction

On October 4, 2007, James Slater ("Slater") was shot and killed outside his home in the City of Rochester. A cell phone, an iPod and approximately fifteen dollars in cash were taken from him. T.557-58. Darnell Norton ("Norton") and Petitioner both were charged with two counts of second degree murder (N.Y. Penal Law § 125.25(2) (intentional murder), § 125.25(3) (felony murder)); and two counts of first degree robbery (N.Y. Penal Law § 160.15(1) (robbery with intent to cause serious physical injury) and § 160.15(2) (robbery while armed with a deadly weapon).

Norton accepted a plea bargain and pled guilty to one count of first degree robbery with a sentence promise of no more than 20 years incarceration, in full satisfaction of the indictment. In exchange, Norton was required to undergo a lie detector test and testify truthfully against Petitioner. Further, if the prosecutor recommended, Norton could have received a sentence of less than 20 years.

Norton testified at trial that, on the evening of October 4, 2007, he had been at the home of his friend, Kisha, at 310 Alphonse Street with Petitioner and several friends. After the other young men left, Petitioner told Norton to go with him to a woman's house. According to Norton, Petitioner was carrying a.22-caliber revolver in the waistband of his pants. They got on their bicycles and rode for about 10 minutes before arriving at their destination on Barons Street.

Norton testified that when they stopped, Norton borrowed Petitioner's cell phone to call Monique Jones ("Jones"). While talking to her, Petitioner got off of his bicycle. Norton then noticed Slater running down Barons Street while being pursued by Petitioner on foot. Norton watched as Petitioner shot Slater in the back, [1] causing him to fall to the ground. Jones testified that she heard Norton exclaim, "Oh, stop, man. What are you doing?" followed by the sound of a gunshot. T.628.[2]

Norton testified that he ended the call with Jones and ran over to Petitioner and Slater, saying "Hey, what's going on?" Petitioner turned the gun on Norton, told him to shut his mouth, and demanded that he search Slater's pockets. Norton testified that he removed some cash, a cell phone, and an iPod from Slater's pockets and displayed the items to Petitioner, who frowned. Petitioner then pointed the gun at Slater, who was lying on his back, and shot him in the chest.

Norton testified that he and Petitioner fled on their bicycles and returned to 310 Alphonse Street where Norton laid the proceeds of the robbery on the kitchen counter. He recalled that Petitioner picked up the cash and the cell phone, and then returned a couple days later to retrieve the iPod.

Slater's sister, Rochelle Slater ("Rochelle"), was inside the house they shared on Barons Street talking on the phone when she heard the first shot. She then a voice she identified as Norton's say, "What are you doing? What are you doing?" This was followed by another shot. Rochelle called the police, but she did not know it was her brother who had been shot until the police told her.

Five days later, on October 9, 2007, the police executed a search warrant on the property of Cornelius Nesmith ("Nesmith"), an inmate at the Monroe County Jail, after receiving information concerning the stolen iPod. The police retrieved the iPod from Nesmith's property.

Also on October 9, 2007, Investigators Dominick and Penkitis of the Rochester Police Department met with Petitioner at the Public Safety Building. After being read his Miranda rights, Petitioner agreed to waive them and speak to Investigators Dominick and Penkitis. Petitioner said that he had heard about the shooting on Barons Street, but he had not been there and did not know who was responsible. Petitioner explained that he had been at his friend Kisha's house on Alphonse Street on October 4th with a bunch of people including "Pookie" (i.e., Norton), and that he "wouldn't doubt" it if "Pookie" had done the shooting and trying to pin the blame on him. T.410-12.

The investigators took a 10 minute break. When they returned, they asked Petitioner about Slater's iPod which had been recovered from Nesmith's property at the jail. Petitioner admitted that he had seen Nesmith (a/k/a, "Slugs") around the time ...


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