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Bernard v. Chappius

United States District Court, W.D. New York

November 21, 2017

GREGORY BERNARD, Petitioner,
v.
PAUL CHAPPIUS, JR., Respondent.

          DECISION AND ORDER

          HONORABLE MICHAEL A. TELESCA United States District Judge

         I. Introduction

         Pro se petitioner Gregory Bernard(“petitioner” or “Bernard”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is being unconstitutionally detained in respondent Paul Chappius, Jr.'s (“respondent”) custody. Petitioner is incarcerated pursuant to judgments of conviction entered against him on May 29, 2008 and September 25, 2008, in Monroe County Court of New York State (“Monroe County Court” or the “trial court”), following jury verdicts convicting him of murder in the second degree and criminal possession of a weapon in the second degree. Petitioner was sentenced to a determinate prison term of 12½ years on the weapon possession count, and a concurrent indeterminate prison term of 25 years to life on the murder count.

         In the petition, petitioner asserts that his continued incarceration is unconstitutional because: (1) the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), by failing to timely disclose certain grand jury testimony; and (2) the trial court denied him due process by failing to sua sponte reopen its pre-trial hearing on the admissibility of certain identification evidence following the disclosure of the grand jury testimony. For the reasons discussed below, the Court finds that petitioner has not shown he is entitled to federal habeas relief.

         II. Factual Background and Procedural History

         A. The Underlying Crime and Investigation

         Petitioner's convictions arise out of the shooting death of Raymundo Rodriguez on September 9, 2007. In September 2007, petitioner was involved in selling heroin and cocaine from Cynthia Bashaw's backyard on Clifford Avenue in Rochester. Ms. Bashaw testified at petitioner's first trial[1] that petitioner would obtain the drugs from Steven Rivera, who was known to her as “Crown, ” and from a second individual known to her as “Josh.” Ms. Bashaw further testified that she permitted petitioner, Mr. Rivera, and “Josh” to store drugs and three handguns in her bedroom dresser.

         In the early morning of September 9, 2007, Ms. Bashaw was in bed when she heard a lot of noise coming from outside. She subsequently discovered petitioner, Mr. Rivera, and “Josh” in her driveway. Ms. Bashaw let “Josh” into her apartment, whereupon he removed something from her dresser and then left. After his departure, Ms. Bashaw noticed that the three handguns, which she had seen earlier that day, were missing from her dresser.

         Also in the early morning of September 9, 2007, Josue Torres left a hip-hop club in Rochester and drove to an after-hours party at a house on Roycroft Drive. Mr. Torres testified that after attending the party for 15 to 20 minutes, he exited the house and spoke to Mr. Rivera, whom he had known since childhood. Mr. Torres further testified that Mr. Rivera then went over to a group of four men standing nearby and that he witnessed handguns being passed around before hearing one of the men say “let's bust him, ” which Mr. Torres understood to mean they intended to shoot someone. As. Mr. Torres walked away, he heard a shot. He looked back and saw petitioner, Mr. Rivera, and a third man shooting at Mr. Rodriguez. Mr. Torres testified that he heard one of the men say “this is for my cousin, this is for my cousin” as they shot at Mr. Rodriguez. Mr. Torres hid behind his truck, and the three shooters ran away, passing by him. Mr. Rodriguez died at the scene of multiple gunshot wounds.

         At approximately 3:30 a.m. on September 9, 2007, Rochester Police Department (“RPD”) Officers Korey McNees and Nicholas Gulla responded to the scene on Roycroft Drive. Officer McNees testified that Mr. Rodriguez's body was lying on the ground along with shell casings and projectiles.

         Ms. Bashaw testified that sometime after 4:00 a.m. that same day, she was awoken when Mr. Rivera's truck pulled into her driveway playing loud music. Ms. Bashaw saw petitioner, Mr. Rivera, “Josh, ” and a fourth individual known to her as “Punto.” “Josh” entered her bedroom and then left again. After his departure, Ms. Bashaw looked in her dresser and saw two guns. Ms. Bashaw further testified that later that day, she and petitioner were in her backyard and petitioner told her that he had shot an individual named “Ray-Ray” at an after-hours party and that he was going to get away with it.

         Mr. Torres was interviewed by the RPD the day after the shooting. He told the RPD that Mr. Rivera was one of the shooters and provided physical descriptions of the other two shooters.

         On September 27, 2007, RDP Officer Myron Moses executed a search warrant for Ms. Bashaw's apartment. Officer Moses recovered two handguns from her dresser, along with a .22 caliber live round and a quantity of suspected cocaine, heroin, and ecstasy pills.

         On September 28, 2007, the RPD presented a photographic array to Mr. Torres and Mr. Torres identified petitioner as one of the shooters. The details of this identification are discussed further below.

         On October 11, 2007, petitioner was interviewed by RPD Investigator Gary Galetta. Petitioner was given his Miranda warnings and agreed to speak to Investigator Galetta. Petitioner told investigator Galetta that he sold drugs on Clifford Avenue for Mr. Rivera. Petitioner further stated that he had been at the after-hours party where Mr. Rodriguez was killed, but claimed that he gave his handgun to Josh and that Josh and Mr. Rivera were the ones who fired at Mr. Rodriguez. Petitioner then traveled to Clifford Avenue in Mr. Rivera's vehicle. Later in the same interview, petitioner changed his story, and claimed that the shooters were actually individuals known to him as “Willie B” and “Collie Bling.”

         Ballistics analysis was performed on the two handguns recovered from Ms. Bashaw's apartment. This analysis showed that two .40 caliber shell casings and a projectile found at the scene of Mr. Rodriguez's shooting were fired from a semi-automatic pistol recovered from Ms. Bashaw's apartment. Additionally, two .38 caliber projectiles or bullets recovered at the shooting scene were fired from the revolver recovered from Ms. Bashaw's apartment. Police also recovered a .45 caliber shell casing from the shooting scene, which was not fired from either of the guns recovered from Ms. Bashaw's apartment.

         B. Pre-trial Proceedings

         Prior to petitioner's first trial, petitioner moved to suppress Mr. Torres' identification of him. The trial court held a hearing pursuant to United States v. Wade, 388 U.S. 218 (1967), to determine whether the identification procedure by which Mr.

         Torres identified petitioner as one of the shooters (namely, the photographic array) was unduly suggestive. At the Wade hearing, RPD Sergeant Mark Mariano testified that, on September 28, 2007, he showed a photograph array to Mr. Torres[2] and that Mr. Torres identified petitioner, stating “he is one of the shooters.” ...


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