Cole v. Chappius, 11CV912HBS

AHMIR COLE, Petitioner, v. CHAPPIUS, Superintendent, Respondent.

11CV912HBS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

Dated: April 7, 2014

Hon. Hugh B. Scott

CONSENT

Decision

&

Order

Petitioner Ahmir Cole has filed an application to this Court for habeas corpus relief pursuant to 28 U.S.C. § 2254 challenging his state court convictions. He asserts the following grounds in support of his Petition: severance and joinder of offenses, insufficient evidence of first degree murder, ineffective assistance of counsel, and other claims (Docket No. 34, Am. Pet.). The parties consented to proceed before the undersigned as Magistrate Judge (pursuant to 28 U.S.C. § 636(c)) (Docket No. 12, March 15, 2012).

BACKGROUND

Offense and State Court Proceedings

This habeas Petition arises from petitioner's conviction in two trials from the shooting of Salah Ahmed in April 5, 2006, at his Kenmore, New York, store; the murder of George Pitliangus at Tony's Ranch House Restaurant on April 14, 2006; an incident with Anthony Dawson, on May 7, 2006, at the Groove Night Club; and criminal possession of contraband found during a traffic stop on May 29, 2006 (Docket No. 1, Pet.; see Docket No. 34, Am. Pet.).Petitioner was convicted of murder in the first degree; attempted robbery in the first degree; robbery in the first degree; criminal possession of a weapon in the second degree; attempted murder in the second degree; assault in the second degree; assault in the first degree; criminal possession of controlled substance in third degree; attempted murder in the first degree; and murder in the second degree.

Petitioner was indicted in a twenty-one count Indictment, N.Y. Erie County Ct., No. 00952-2006. Upon petitioner's motion, these counts were tried in separate trials (Docket No. 11, Resp't Br. at 1-2). Counts 1-6 arise from the shooting of Ahmed, while counts 7-12 arise from the murder of Pitliangus. Counts 15-18 arise from the Groove Night Club incident with Dawson. The remaining counts are the criminal possession charges.

Below is a table of the charges alleged in these counts.

Count

Charge and Facts

attempted murder in the first degree, April 5, 2006, with Salah Ahmed at

Kenmore store, in violation of N.Y. Penal L. §§ 110.00 (attempt),

125.27(1)(a)(vii)

attempted murder in the second degree, April 5, 2006, in violation of Penal L.

§§ 110.00, 125.25(1)

robbery in the first degree, April 6, 2006, with loaded pistol, in violation of Penal

L. § 160.15(2)

robbery in the first degree, April 6, 2006, with injury to Ahmed, in violation of

Penal L. § 160.15(2)

assault in the first degree, April 6, 2006, in violation of Penal L. § 120.10(1)

criminal possession of weapon in second degree, April 6, 2006, in violation of

Penal L. § 265.03(2)

murder in the first degree, April 14, 2006, at Tony's Ranch House, of George

Pitliangus, during course of attempted robbery, in violation of Penal L.

§ 125.27(1)(a)(vii)

Count

Charge and Facts

murder in the second degree, April 14, 2006, in violation of Penal L. § 125.25(1)

murder in the second degree, April 14, 2006, while attempting a robbery, in

violation of Penal L. § 125.25(3)

attempted robbery in the first degree, April 14, 2006, in violation of Penal L.

§§ 110.00, 160.15(2)

murder in the first degree, April 14, 2006, during course of a robbery, in violation

of Penal L. § 125.27(1)(a)(vii)

murder in the second degree, April 14, 2006, during course of a robbery, in

violation of Penal L. § 125.25(3)

robbery in the first degree, April 14, 2006, in violation of Penal L. § 160.15(2)

criminal possession of weapon second degree, April 14, 2006, in violation of

Penal L. § 265.03(2)

attempted murder in the second degree, May 7, 2006, Andrew Dawson, at Groove

Night Club, in violation of Penal L. §§ 110.00, 125.25(1)

robbery in the first degree, May 7, 2006, in violation of Penal L. § 160.15(2)

assault in the second degree, May 7, 2006, in violation of Penal L. § 120.05(6)

criminal possession of weapon in the second degree, May 7, 2006, in violation of

Penal L. § 265.03(2)

criminal possession of controlled substance in the third degree, May 29, 2006,

possessing cocaine, in violation of Penal L. § 220.16(1)

criminal possession of controlled substance in the fifth degree, May 29, 2006,

possessing 500 milligrams or more of cocaine, in violation of Penal L.

§ 220.06(5)

criminal possession of weapon in the third degree, May 29, 2006, in violation of Penal L. § 265.02(4)

Upon his motion, petitioner was tried in two severed trials (trying counts 7-21 on February 26, 2007, and then counts 3-6 on July 30, 2007, while counts 1-2 were dismissed).

Tony's Ranch House, April 14, 2006

During the robbery at Tony's Ranch House, the suspect showed the owner, Pitliangus, a gun which Pitliangus said was a mere toy. Shots then were fired. Travis Cochran, petitioner's friend, testified that petitioner wanted to rob Tony's Ranch House and petitioner had displayed a .22 caliber Ruger pistol. (Docket No. 11, Resp't Br. at 6; Murder Trial Tr. at 542, 547-54, 614-15, 617-28, 630-31.)

Groove Night Club, May 7, 2006

On the night of May 7, 2006, Anthony Dawson was leaving the Groove Night Club when petitioner approached him and demanded his gold chain. Dawson refused. Petitioner then fired a shot at Dawson and left with the chain. A shell casing was later found in the night club's door and it matched the shell casing found at Tony's Ranch House. (Docket No. 11, Resp't Br. at 7.)

On May 29, 2006, petitioner was stopped while driving his girlfriend, Tamika Hunter's, car and drugs and a gun were recovered from the car. The recovered gun had a partial DNA profile of petitioner on it. (Id. at 8-9.)

Salah Ahmed, April 5, 2006

On April 5, 2006, Ahmed was a cashier at a Kenmore corner store. After 10 pm, a masked man entered the store and ordered Ahmed to open the cash register at gun point. Cochran later testified that he wanted to rob this store and petitioner served as look out as the robbery occurred. Petitioner later admitted to his girlfriend, Hunter, that he and Cochran robbed the Kenmore store. (Id.)

Trials

After petitioner moved to sever the Tony's Ranch House and Groove Night Club incidents from the Ahmed robbery, and the dismissal of two counts, he was convicted in both trials of most of the remaining nineteen counts¹. He was sentenced to life in prison for the murder conviction with concurrent 25-year, 15-year, 7-year, and 1-year sentences for the other offenses.

Appeal

Petitioner appealed to the New York State Supreme Court, Appellate Division, arguing that evidence is legally insufficient; that the verdict was against the weight of evidence; objecting that joinder of offenses (the Tony's Ranch House murder and the Groove Night Club robbery) in the first trial was improper; that he was denied his statutory right to testify before the Grand Jury; improper amendment of the Indictment; police misconduct; and ineffective assistance of trial counsel. The Appellate Division affirmed his conviction, People v. Cole, 68 A.D.3d 1763, 892 N.Y.S.2d 694 (4^th Dep't 2009), and leave to appeal was denied, People v. Cole, 14 N.Y.3d 839, 901 N.Y.S.2d 145 (2010). The Appellate Division rejected petitioner's contention that the verdict was against the weight of evidence for two counts of murder at Tony's Ranch House and the attempted murder charge at the Groove Night Club, 68 A.D.3d at 1763, 892 N.Y.S.2d at 695. That court upheld the denial of severance of the drug possession count from the weapons possession count since both the drugs and the weapon were possessed at the time of petitioner's arrest on May 29, 2006, 68 A.D.3d at 1763, 892 N.Y.2d at 695. Since the weapon seized on May29, 2006, was also used at Tony's Ranch House and the Groove Night Club, the Appellate Division upheld the "chain of joinder" of the robbery, murder and attempted murder counts, id. The Appellate Division also held that admission by petitioner to his girlfriend Hunter concerning his involvement in the Kenmore store crimes corroborated the testimony of an accomplice, id. The court found that petitioner did not preserve for review the sufficiency of evidence for the first degree murder counts as to petitioner's age when the offense was committed because he failed to move at trial for an Order of dismissal, 68 A.D.3d at 1763, 892 N.Y.S.2d at 695-96.

Petitioner was represented by counsel and also appeared pro se on this appeal.

Petitioner meanwhile filed a post-conviction motion under New York Criminal Procedure Law §§ 330.30, 440.20, 440.10(F), (H), which was denied on September 18, 2008, and writ of coram nobis was denied on July 1, 2011. Leave to appeal was denied on September 28, 2011, and the writ of coram nobis to the Appellate Division was denied on April 20, 2012. Petitioner's additional coram nobis writs also were denied. (See Docket No. 38, Resp't Memo. at 3-4.)

Habeas Petition

Petitioner then filed this Petition on October 27, 2011 (Docket No. 1), and he amended the Petition on June 12, 2013 (Docket No. 34). Respondent filed an Answer with an attached record from the state court proceedings (Docket No. 10), and then a response to the Amended Petition (Docket No. 37).

DISCUSSION

I. Exhaustion

In the interest of comity and in keeping with the requirements of 28 U.S.C. § 2254(b), federal courts will not consider a constitutional challenge that has not first been "fairlypresented" to the state courts. See Ayala v. Speckard, 89 F.3d 91, 94 (2d Cir. 1996), citing Picard v. Connor, 404 U.S. 270, 275 (1971); Daye v. Attorney General of New York, 696 F.2d 186, 191 (2d Cir. 1982) (in banc), cert. denied, 464 U.S. 1048 (1984). A state prisoner seeking federal habeas corpus review of his conviction must first exhaust his available state remedies with respect to the issues raised in the federal habeas petition. Rose v. Lundy, 455 U.S. 509 (1982). However, under 28 U.S.C. § 2254(b)(2), where appropriate the Court may deny the relief requested in the petition...