Parker v. Wenderlich

KEENAN PARKER, Petitioner, v. SUPT. S. WENDERLICH, Respondent.

14-CV-5896 (JG)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 2, 2015

FOR ONLINE PUBLICATION ONLY

MEMORANDUM AND ORDER

APPEARANCES

KEENAN PARKER

# 09-A-4055

Southport Correctional Facility

236 Bob Masia Drive

P.O. Box 2000

Pine City, New York 14871-2000

Petitioner Pro Se

KENNETH P. THOMPSON

King County District Attorney's Office

350 Jay Street

Brooklyn, New York 11201

By: Keith Dolan

Attorneys for Respondent

JOHN GLEESON, United States District Judge:

Pursuant to 28 U.S.C. § 2254, Petitioner Kennan Parker applies for a writ of habeas corpus, challenging his conviction in New York Supreme Court, following a jury trial, of Murder in the Second Degree. For the reasons set forth below, the petition is denied.

BACKGROUND

A. The Offense Conduct

The evidence at trial established that on September 13, 2007, at approximately 12:00 P.M., at 22 Clifton Place in Brooklyn, Parker shot and killed Lawrence Sumpter. Parker was charged with one count of Murder in the Second Degree, and two counts of Criminal Possession of a Weapon in the Second Degree. N.Y. Penal Law §§ 125.25(1); 265.03(1)(b), (3). Parker was tried before a jury in the New York Supreme Court, Kings County. At trial, Parker was represented in part by counsel, and in part proceeded pro se.

1. The State's Case

Carmel Harding testified that around noon on September 13, 2007, she was talking to Lawrence "Rab" Sumpter and others in front of 22 Clifton Place, next door to her home in Brooklyn. Tr. 58-60, 63-67.¹ Harding noticed Parker, her brother Eric and others, talking or arguing on the stairs of 42 Clifton Place, about 13 houses away. Tr. 67-68, 104. Harding had known Parker for over 20 years because he had been raised with her son, and had spoken to him just two days earlier. Tr. 60-63.

Sumpter was walking down the block toward 42 Clifton Place when Harding saw Parker jump off the stoop and shoot at him. Tr. 67, 70-74. According to Harding, Sumpter had not done anything to provoke the attack and had no bad intentions towards Parker. Id. When Sumpter ran back towards Harding, Parker continued shooting at him. Id. Harding, for her part, started to run inside 22 Clifton Place, which was under renovation. Tr. 73. She heard about five shots before she entered the building. Tr. 74. Sumpter ran into the building behind her, but he was shot and fell down near the top of the steps. Tr. 73-77. Parker then appeared at the top ofthe stairs, about four or five feet from Harding. Parker was holding a gun, and cursed at Sumpter, "Motherfucker, I got you now." Tr. 76-78. As Harding ran away, she heard more gunshots and called 911. Tr. 79, 106.

Luis Gonzalez, a carpenter who at the time of the incident was working in another building on Clifton Place, testified that upon hearing three gun shots he looked out the third floor window and saw Parker chasing another man. Tr. 252-54, 257, 261. The man being chased by Parker ran towards a doorway. Tr. 253-56, 261, 274. Gonzalez saw Parker pull out a .38-caliber snub-nose gun and fire three shots at the victim, while the victim was at the bottom end of the stairs, by the doorway. Id. Parker emptied the gun at the victim; Gonzalez heard the weapon make a "click-click" sound. Tr. 256-57. Gonzalez first heard Parker fire three shots, then saw Parker fire three more shots. Id.

Gonzalez testified that Parker put the empty gun into his pocket, then reached behind his back and drew a second gun — a small, nickel or chrome-plated 9mm or .45-caliber pistol. Tr. 253, 257-58, 261, 274-75. The victim was already inside the building when Parker ran inside behind him. Tr. 259. Gonzalez heard three more shots, and a "tumble," which sounded like someone falling down the stairs. Tr. 253, 275. Then Parker said, "I got this motherfucker," and looked around before riding away on a bicycle. Tr. 253.

Police Officer Evita Poole testified that she arrived at 22 Clifton Place in response to a radio report of gunfire at about 11:53 A.M. Tr. 109-11. She observed Eric Harding standing over Sumpter, who had been shot numerous times. Harding was trying to help Sumpter, telling him to "Get Up. Get Up." Tr. 112-13. Carmel Harding then told the police that Parker had shot Sumpter. Tr. 80-81. Detective Anthony D'Amato recovered a discharged 9mm shell casing from the floor inside 22 Clifton Place. Tr. 115-16, 148-51, 154-55. Detectives Timothy Duffyand Ronald Johnson went to 22 Clifton Place, interviewed witnesses, and attempted to locate Parker after the shooting. Tr. 193-96, 213-16.

Weeks later, on October 6, 2007, Duffy and another detective were driving along Willoughby Avenue in Brooklyn when they spotted Parker standing on a corner and approached him. Tr. 196-98, 216-17. Duffy told Parker that he looked like a wanted person, but if he was not that individual, then he would be released soon. Tr. 197-98. Parker cooperated. Id. While being driven back to the 88th Precinct, Parker claimed that it was all Duffy's fault because Duffy had left a violent, three-time loser on the street. Tr. 202-03. Duffy asked Parker who he meant, and Parker said Lawrence Sumpter. Id. Parker also said that Sumpter had gotten what he deserved. Tr. 203. At the precinct, Parker stated that the entire case was based on the "white guy across the street from where it happened," and that person would not testify. Tr. 204-05. The police conducted a lineup with Parker. Tr. 205, 219-25. Prior to the lineup, Parker stated, "It's not like I killed Kennedy," and also asked, "How many murders am I being charged with?" Tr. 238-39. Carmel Harding and Gonzalez each viewed the lineup separately, and both identified Parker as the shooter. Tr. 81-82, 227-30, 269-70.

Detective James Valenti examined the three bullets recovered from Sumpter's autopsy and the shell casing recovered at the scene of the shooting. Tr. 178-80, 184. The three bullets had been fired from at least two different guns. Tr. 181. Two were .38 caliber lead bullets, and were consistent with being fired from a revolver. Tr. 190. However, Valenti could not ascertain if they were fired from the same revolver. Tr. 181. The jacketed, hollow-point bullet was a 9mm, and would have been fired from a semi-automatic pistol. Tr. 187-88, 190.

2. The Defense Case

Parker was the only defense witness at trial. He testified that he had known Sumpter since he was 12 and Sumpter was an older teenager. Tr. 322. At the time of the shooting, Parker was not on good terms with Sumpter, whom he described as "selfish" and "jealous." Tr. 332-33. According to Parker, Sumpter had him falsely arrested for a murder that Sumpter had actually committed, and for which Parker was ultimately acquitted. Tr. 332-34. Parker testified that Sumpter had committed numerous violent acts prior to September 13, 2007, but the only such act he had witnessed personally was the shooting of Ronald Matthews, a friend of Sumpter's. Tr. 330-32. Parker also claimed that he had seen Sumpter possess various firearms at an apartment on Clifton Place. Tr. 331.

Parker admitted that he shot Sumpter on September 13, 2007, but claimed that it was a mutual "shootout" in which Sumpter had fired first. Tr. 335-40. Prior to the shootout, Eric Harding had stopped Parker on the street, as a distraction, and asked Parker why he was bringing a lawsuit that would put people in jail. Tr. 335-36, 365, 381, 383. As they were speaking, Parker claimed that he could see Sumpter approaching from behind in the reflection of Eric Harding's sunglasses. Tr. 335-37, 349. Parker then saw Sumpter draw a gun, but it jammed. Id. Once this happened, Parker pulled his own weapon and tried to use Eric Harding as a shield. Id. When Sumpter fired two shots at Parker, Parker fired back. Id. Parker explained that his gun had belonged to his grandmother, who had been a police officer, but it was not snub-nosed. Tr. 348-49. According to Parker, he had had the gun since 1989, but kept it in the house, and this was the only day he carried it with him. Id.

According to Parker, Sumpter ran across the street, firing at Parker, "shooting backwards like in the movie theater." Tr. 340, 352. Parker stated he did not have an opportunityto return fire because he only had "five slugs" in his "six shooter," whereas Sumpter had "an automatic, fully loaded" 9mm pistol. Tr. 352-53. By the time Sumpter reached the stairs of 22 Clifton Place, Parker had "let go of three, because I knew I had two left. I have five out of the six." Tr. 353. Parker said he returned fire at Sumpter because he feared for his life. Tr. 340-41.

At trial, Parker testified that he was chasing Sumpter, aiming at him, trying to hit him, but at another point, Parker stated that he was not chasing Sumpter. Tr. 348, 351. He claimed that he followed Sumpter into 22 Clifton Place because "[m]y mind snapped. This man tried to kill me not only once, but this is the second time. He just tried to give me 50 years in jail." Tr. 341. Parker also claimed that he was afraid that if he turned away, he would have been shot in the back. Tr. 351-52. According to Parker, Sumpter fired nine or ten shots at him and Eric Harding picked up the empty casings. Tr. 379, 381-82. Parker also claimed that Sumpter had tried to kill him three times, and that Sumpter wanted to kill Parker because Parker "had him" and Sumpter was going to jail. Tr. 378-80, 382.

Parker testified that when he first shot at Sumpter he did not know that he had hit him. Tr. 353-54. Sumpter fell and got back up. Id. Parker then shot Sumpter again. Id. This time Parker "knew [Sumpter] was hit because his body flew." Id. Sumpter dropped his gun and fell down. Tr. 342. Parker admitted that he did not leave once Sumpter had dropped his gun, testifying that, "At that point in time, that's when I picked his gun up, and that's when I shot him with his own gun." Id. Parker testified that he was "fresh out" of ammunition, but Sumpter "had enough in his clip." Tr....