United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Proceeding pro se, George Harris ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is being held in State custody in violation of his Federal constitutional rights. Petitioner is incarcerated pursuant to a judgment entered against him on November 17, 2008, in Erie County Court (Troutman, J.) of New York State Supreme Court. Following a non-jury trial, Petitioner was convicted of one count of second degree (intentional) murder (N.Y. Penal Law ("P.L.") § 125.25(1)).
II. Factual Background and Procedural History
The conviction here at issue stems from the February 7, 2008, premeditated shooting of his stepson-in-law, Tom Liberatore ("Tom"), at the multi-family house Petitioner, Tom's mother ("Mrs. Harris"), Tom, and Tom's wife, Kristen Liberatore ("Kristen"), shared.
About three weeks before the murder, Petitioner had put leftover pizza in his refrigerator. It was a well-understood house rule that no one apart from Petitioner and his wife, Mrs. Harris, were allowed to eat food from Petitioner's refrigerator. Petitioner and Mrs. Harris then took a weekend trip out of town. When they returned, they found that someone had eaten the pizza. They both were upset and blamed Tom, who, admittedly, had eaten the pizza. T.235-236. Although Tom bought a replacement pizza, Petitioner was not appeased.
The tension in the household caused by this incident grew steadily. Tom and his mother reconciled, and Mrs. Harris urged Petitioner to smooth things over with Petitioner. Petitioner responded, "Me? Apologize? No. I'll get my respect." T.240.
On February 1, 2008, Petitioner purchased a shotgun and hid it in his attic. T.241, 378, 404-406, 623.
On February 6, 2008, Mrs. Harris talked to Petitioner about buying a place for themselves so that they could have more privacy. T.246-248.
On the morning of February 7, 2008, Petitioner acted as if it were just another day, getting up at his regular time and eating breakfast with his wife. When she left for a luncheon date, Petitioner waited for Tom to return home for lunch. On hearing Tom enter the lower apartment, Petitioner ran and got his shotgun, and stationed himself behind a pillar in the basement. He knew Tom would have to walk through the basement to return to work at the automotive garage he owned with his brother. T.620, 624, 653, 664.
Meanwhile, Tom's wife was taking a nap in their apartment. T.92, 99. Tom stopped in to see her before he went back to work, gave her a kiss, and left. Moments later, Kristen was wakened by a loud explosion and heard her husband scream from the basement, "Oh my God! Mom! Mom! Kristen!" T.100. Kristen put on her bathrobe and ran downstairs to find her husband crawling toward her, away from Petitioner. He said to her, "He shot me." T.101-102.
As blood flowed from the wound on Tom's right side, Petitioner stood over him and reloaded the shotgun. T.103. Kristen begged Petitioner not to shoot her husband again. Petitioner trained the muzzle of his shotgun on her face briefly and returned to pointing it at Tom. T.105. When Kristen asked Petitioner why he was doing this, Petitioner calmly replied, "He's an asshole." T.105, 107. After repeating this in the same tone of voice, Petitioner shot Tom in the back of the skull. T.106.
According to Kristen, Petitioner maintained his normal demeanor throughout the assault. After shooting Tom in the head, Petitioner remained calm, let the shotgun fall to his side, and walked out of the basement, leaving Kristen with her robe covered in her husband's brain matter, tissue and blood. T.107-108, 170.
When a police officer arrived at the house, Petitioner calmly told her, "I'm the one you're looking for. I shot him. He's on the ...