Morgan v. Bradt

NICHOLAS MORGAN, Petitioner, v. MARK BRADT, as the Superintendent of Attica Correctional Facility,and ERIC SCHNEIDERMAN, New York State Attorney General, Respondents.

No. 6:13-CV-6643(MAT)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

June 15, 2015

DECISION AND ORDER

I. Introduction

Represented by counsel, Nicholas Morgan ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, on the basis he is being unconstitutionally detained in Respondents' custody. Petitioner is incarcerated pursuant to a judgment entered on May 24, 2006, in New York State Supreme Court, Monroe County (Valentino, J.), following a jury verdict convicting him of Murder in the Second Degree (depraved indifference murder) (New York Penal Law "P.L." § 125.25(2)) and various weapons-possession and drug-possession charges.

II. Factual Background and Procedural History

Petitioner's conviction stems from an incident that occurred on the evening of September 28, 2005, on Bismark Terrace in the City of Rochester. That day, sixteen-year-old Miquesha Hazzard ("Hazzard") was visiting her fifteen-year-old boyfriend, JamelWigington ("Jamel"), and his fourteen-year-old sister, Elizabeth Chung ("Chung"), at their home at 28 Bismark Terrace. Also at home were Jamel's brother, Michael Wigington ("Michael"), Chung's two pre-teen nieces, and Chung's mother's boyfriend, Wesley Arline ("Arline").

Petitioner's sister and co-defendant, Carrie Fulmore ("Fulmore") lived directly across the street at 31 Bismark Terrace with her teenaged daughters, Ashley Forte, Shana Forte, and Candice Forte.

During the summer of 2005, the teenaged residents of 31 Bismark Terrace and their friends had been feuding with the teenaged residents of 28 Bismark Terrace and their friends. At around 5:00 or 6:00 p.m., the animosities resumed when Ashley Forte's sixteen-year-old boyfriend, Jose Jimenez ("Jimenez"), asked Hazzard, "What the fuck are you looking at, you bitch?" T.859-63. After Hazzard and Chung related Jimenez's comment to Jamel and Michael, the brothers confronted Jimenez, who pulled up his shirt to display a handgun in his waistband. Saying, "Oh I be back, I be back," Jimenez walked away.

When Michael made a comment about Jimenez to Ashley Forte, an argument ensued between Fulmore and Michael which quickly escalated into a melee in the street. Fulmore and her three daughters were on one side, with the Wigington brothers, Chung, and Hazzard on theother. Chung got hit in the head with a shovel by Fulmore and Fulmore was punched in the eye.

Eventually, Arline, who was inside the house at 28 Bismark Terrace, came out broke up the fight. As the participants were dispersing, a witness heard Fulmore say, "You all going to get it tonight." Minutes later, Chung observed Fulmore standing on her porch yelling into a cordless telephone. Chung presumed Fulmore was calling the police. Fulmore did call 911 at 6:45 p.m. and told the operator, "No we ain't fighting now, but ya'all need to come because they gonna get fucked up, I'm serious." T.1138-1139, 869-871, 1112-1113. At 6:51 p.m., however, Fulmore called the phone number registered to the address at which her father (Willie Morgan) and Petitioner resided. Arline could hear Fulmore on her cordless phone saying to someone, "Come over here and shoot up this motherfucking house." T.1601-1614, 1145. Within minutes of Fulmore's call to Willie Morgan's house, a man identified by two eye-witnesses (Chung and Brandon Parrish ("Parrish")) as Petitioner, arrived on the scene. The witnesses watched as Petitioner walked down Bismark Terrace on foot, holding a black handgun in his hand. Petitioner stopped in front of Fulmore's house and asked, "[W]hich house are you talking about?" Fulmore, who was standing in her front yard, pointed across the street and said, "That house right there." Petitioner raised the handgun he was carrying and fired at least twelve times at the house at28 Bismarck Terrace. The shooting stopped when Arline grabbed his rifle and fired one shot out the front door of 28 Bismark Terrace toward the pavement. One of the multiple bullets fired into the house at 28 Bismark Terrace struck Hazzard in the chest, causing fatal injuries. T.873-881, 1035-1037, 1151-1154, 1647.

Parrish, a friend of Jimenez, Ashley Forte's boyfriend, was standing outside on Bismark Terrace during the shooting. Parrish witnessed Petitioner fire his gun at 28 Bismark Terrace and could hear the sound of a window breaking. After Petitioner fired the shots, Parrish saw him go back up the street in the same direction from which he had come.

The following day, the police arrested Petitioner at 113 Bernard Street, and found him in possession of marijuana and crack cocaine.¹ Fulmore's stepmother, Judy Morgan, resided at 113 Bernard Street and was married to Petitioner's father, Willie Morgan. According to statements by Judy Morgan and by Petitioner at the time of his arrest, Petitioner lived about a block away at 210 Bernard Street with his father, Willie Morgan, who "was bouncing back and forth between 210 and 113 Bernard," but spent most of the time at 113 Bernard Street.

Later that day, police conducted a search at 113 Bernard Street pursuant to a warrant and found a Taurus Luger 9mmsemi-automatic handgun taped underneath a hutch in the dining room. At trial, a ballistics expert testified that the handgun seized by the police fired the casings and projectiles recovered by police at the crime scene. T.1316, 1384-86, 1402-16, 1425-28, 1648-85.

The jury returned a verdict convicting Petitioner of Murder in the Second Degree (P.L. § 125.25(2)), Criminal Possession of a Weapon in the Second Degree (P.L. § 265.03(2)), Criminal Possession of a Weapon in the Third Degree (P.L. § 265.02(4)), Criminal Possession of a Controlled Substance in the Third Degree (P.L. § 220.16(1)), Criminal Possession of a Controlled Substance in the Fifth Degree (P.L. § 220.06(5)), and Unlawful Possession of Marijuana (P.L. § 221.05). Petitioner was sentenced as a second felony offender to an aggregate term of imprisonment of twenty-five years to life.

Represented by new counsel, Petitioner timely filed a notice of appeal in the Appellate Division, Fourth Department, of New York State Supreme Court. The direct appeal was held in abeyance pending the outcome of Petitioner's counseled motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 filed in Monroe County Supreme Court (Valentino, J.) ("the 440 Court") and asserting claims of ineffective assistance of trial counsel. The 440 Court denied the motion on the merits without a hearing on November 9, 2010, and the Appellate Division denied leave to appeal.

On June 8, 2012, the Appellate Division, Fourth Department, unanimously affirmed the judgment of conviction. People v. Morgan, 96 A.D.3d 1418 (4th Dep't 2012). On December 4, 2012, the New York Court of Appeals denied leave to appeal. People v. Morgan, 20 N.Y.3d 987 (2012).

In his timely habeas petition, Petitioner asserts that trial counsel was ineffective for failing to investigate and present a defense on the science of firearm and toolmark identification and that the multiple identification procedures employed by the police were unduly suggestive. Respondent answered the petition, and Petitioner filed a reply brief. For the reasons discussed below, the Court declines to issue a writ of habeas corpus and dismisses the petition.

IV. Substantive Predicates to Habeas Relief

Under the amendments to the federal habeas statute contained in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214, if a petition includes a claim that has been "adjudicated on the merits in State court proceedings," 28 U.S.C. § 2254(d), the federal court may not grant relief unless that adjudication "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). AEDPA's standard is "difficult to meet," Harrington v. Richter, 562 U.S. ----, ----, 131 S.Ct. 770, 786 (2011), and "demands thatstate-court decisions be given the benefit of the doubt," Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (citation and internal quotation marks omitted).

V. Merits of the Petition

A. Ineffective Assistance of Counsel

Petitioner asserts, as he did in support of his C.P.L. § 440.10 motion and on direct appeal, that he was deprived of the effective assistance of trial counsel because counsel did not cross-examine the prosecution's ballistics expert regarding his testimony that the gun found at Petitioner's stepmother's house was the gun that fired the casings and projectiles found at the scene of the crime, and failed to counsel failed to call a rebuttal expert to counter the ballistics expert's conclusions. A brief summary of the state court proceedings and ruling follows.

1. Background

At trial, the prosecution's firearms and toolmark identification expert, John Clark ("Clark"), testified that it was "possible to determine if a spent shell casing has been fired from a particular semiautomatic handgun to the exclusion of all other handguns[,]" T.1652; that he was able to conclude, in this case, that "all 12 of the fired cartridge cases were fired in the Taurus pistol to the exclusion of all other firearms[,]" T.1665; and that it was "possible to determine if a particular spent bullet was fired from a particular firearm to the exclusion of all otherfirearms[.]" T.1654. In support of his argument that trial counsel unreasonably erred in failing to cross-examine Clark or retain a rebuttal expert, Petitioner submitted two affidavits from purported firearms and toolmark expert Adina Schwartz ("Schwartz"), opining that the evidence given by Clark should have been inadmissible because the field of firearms and toolmark identification is not generally accepted in the relevant scientific community. Schwartz asserted that...