United States District Court, W.D. New York
NJERA A. WILSON, Petitioner,
T. LAVALLEY, Superintendent Clinton Correctional Facility, ERIC T. SCHNEIDERMAN, Att. General of the State of New York, Respondents.
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Proceeding pro se, Njera A. Wilson ("Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his November 23, 2010 conviction following a jury trial in Erie County Court (D'Amico, J.) of New York State on one count of Burglary in the Second Degree (N.Y. Penal Law ("P.L.") § 140.25(2).
II. Factual Background and Procedural History
On February 26, 2010, Petitioner and co-defendant Deyon T. Roberts ("Roberts") were charged in a two-count indictment with Burglary in the First Degree (P.L. § 140.30(3)) and Burglary in the Second Degree (P.L. § 140.25(2)). The charges stemmed from allegations that on the night of September 10, 2009, Petitioner and Roberts knowingly and unlawfully entered the dwelling of Jessie Lewis ("Lewis"), with the intent to commit a crime, and while inside the dwelling, one of them threatened the immediate use of a dangerous instrument (a crow bar).
Beginning on August 24, 2010, Petitioner and Roberts were tried jointly before Erie County Court Judge Michael D'Amico and a jury. Lewis testified that on September 10, 2009, he was residing at an apartment complex at 608 Niagara Street in the City of Buffalo. Sometime in the morning, Lewis took his 8-week-old puppy to a nearby park for a walk, locking his apartment when he left. Upon returning home about 45 minutes later, he entered the vestibule and noticed someone coming out of his apartment holding a crowbar and a duffel bag. This man, whom Lewis later identified as Petitioner, seemed startled. Lewis then saw Roberts inside the apartment holding a pistol, which he aimed in Lewis' direction.
Lewis turned and ran down the street and, in his haste, left his dog behind. Using his cell phone, Lewis called 911. While on the phone with 911, Lewis saw Roberts run toward the backyard of 608 Niagara Street. When the police arrived, Lewis spoke with them and provided a description of Petitioner and Roberts.
One of the responding officers, Keith Devlin ("Devlin") checked the backyard of Lewis' apartment complex since Lewis had seen Roberts run in that direction. From an adjoining vacant lot, Devlin heard a rustling sound coming from the vicinity of a couple abandoned vehicles and some tall weeds. As he walked toward that area, Roberts jumped up in front of him. Roberts was sweaty, covered in burrs and vegetation, and breathing heavily. Devlin arrested Roberts.
Another responding officer, Donna Donovan ("Donovan"), was speaking to some potential witnesses near Lewis' apartment when she observed Petitioner walking down a driveway located two houses down, at 551 7th Street. Petitioner was sweaty and covered in leaves. Donovan stopped him and asked him some questions. Because his answers did not make sense to her, Donovan placed Petitioner in the back of her patrol car and returned to the driveway down which she had seen Petitioner walking. Next to some garbage cans, she saw a duffle bag which appeared to be moving. Donovan opened up the bag and discovered Petitioner's puppy and a bulletproof vest.
Donovan brought Petitioner back to 608 Niagara Street, where he was identified by Lewis in a show-up identification procedure. At that time, Lewis also identified Roberts. While Petitioner was still in the back of Donovan's patrol car, Lewis heard him shout to his (Lewis') step-sister, "Monique, it wasn't me, I didn't have a gun!" T.448.
Several items found at Lewis' apartment-a pair of leather gloves, a black pry bar, and a screwdriver-were collected by the police. These items, along with a watch and a gun found in a nearby basement window-well, were submitted for DNA testing. The test results indicated that the pry bar contained a mixture of DNA, and Petitioner could not be excluded as a source of one of the DNA profiles found on the pry bar. The forensic chemist who tested the samples testified that the odds of randomly selecting an unrelated individual from the United States population as a possible contributor was 1 in 1, 070 individuals. The DNA profile on the right-hand leather glove matched Roberts' DNA. Roberts also could not be excluded as a contributor to the DNA found on the watch. The odds of randomly selecting an unrelated individual as a possible contributor was 1 in 22.9 million individuals.
Roberts testified that on the morning of September 10, 2009, he went to a local park to work out, after which he went to the Niagara Cafe for lunch. After trying to visit a friend, who was not home, he cut through a vacant lot to get to a gas station to buy some bottled water. A police officer appeared, forced him to the ground at gunpoint, and handcuffed him. Roberts said that, as was his habit, he had been wearing leather gloves during his workout to protect his hands and wedding ring. He did not know what happened to the gloves after his altercation with the police. He testified that he never had been inside Lewis' apartment.
Petitioner did not testify. The defense theory was that Lewis misidentified Petitioner as a suspect, and that Petitioner simply was in the wrong place at the wrong time when he was arrested.
On August 30, 2010, the jury returned a verdict acquitting Petitioner of the first degree burglary count but convicting him ...