Allen v. The State of New York

Filing 28

-CLERK TO FOLLOW UP-DECISION AND ORDER denying petitioner's 22 motion for a stay and abeyance and the petition 1 . Clerk of the Court is directed to close the case. Signed by Hon. Jeremiah J. McCarthy on 10/12/2016. (Court has mailed a copy of this D&O to petitioner). (DAZ)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_________________________________________
KEVIN ALLEN,
Petitioner,

DECISION AND ORDER
13-CV-0991-JJM

v.
THE STATE OF NEW YORK,
Respondent.
_________________________________________

Kevin Allen, pro se, brings this petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2254, challenging his conviction on charges of murder in the second degree, criminal
possession of a weapon in the second degree, and criminal possession of a weapon in the third
degree in New York State Supreme Court, Erie County on November 18, 2009 [1]. 1 He was
sentenced of twenty-five years to life imprisonment. Id.
The parties have consented to my jurisdiction in this case [14]. For the following
reasons, the petition is denied.

BACKGROUND
Petitioner was convicted of providing a gun to Ricky R. Scott, which Scott then
used to kill Lamar Williams on May 21, 2006. At trial, Kysun Romer testified that on that date
he went to the Tralfamadore Café (“Tralf”) in Buffalo with Larry Kemp and an individual known

1

Bracketed references are to the CM/ECF docket entries.

as “Red”, to see a concert by rap artist Jim Jones (T. 225, 255). 2 Inside the Tralf lobby, Mr.
Kemp got into a fight with Jermaine “Pops” Varner (T. 227). Mr. Kemp believed Mr. Varner had
something to do with his brother’s murder. Id.
The concert was sold out, and those in the lobby were asked to leave the building
(T. 257, 354). Once outside, Mr. Romer, Mr. Kemp and “Red” met up with petitioner and Mr.
Scott (T. 229-230). Mr. Kemp was upset and stated that he wanted Mr. Varner killed (T. 231).
Initially, Mr. Kemp sent “Red” to kill Mr. Varner (T. 232). “Red” walked down to the street
waiting for Mr. Varner’s van to drive by (T. 233). Before Mr. Varner came by, Mr. Kemp called
“Red” back. Id.
Mr. Kemp then stated that he would pay $10,000 for someone to kill Mr. Varner
(T. 234).3 Mr. Scott stated that he would do it. Id. Mr. Kemp gave Mr. Scott approximately
$5000 in cash which he had with him (T. 235, 325). Mr. Romer testified that he then observed
petitioner hand Mr. Scott a handgun (T. 236), and advise Mr. Scott: “Here come the van right
now” (T. 237). Mr. Scott walked down to the street, walked up to the van and shot the driver (T.
237) – who turned out to be Mr. Williams, not Mr. Varner (T. 372). Id.4
Jamario Reed testified that he and his brothers also went to the Jim Jones concert
but were unable to get in (T. 393). Mr. Reed testified that he saw petitioner standing outside the
Tralf, a couple of feet away from where he was standing with his brothers (T. 395-96).5 He
All references “(T. __)” refer to the transcript of the trial which commenced on October 6, 2009. A
previous trial on these charges had commenced on July 16, 2009, but ended in a mistrial due to the need
to disqualify a member of the jury.
2

3

Mr. Romer stated that Mr. Kemp offered “ten bones” which meant $10,000. Id.

4

Dwight Hicks, a parole officer from Rochester, was working security for the Tralf and the Groove
Nightclub at the time of the shooting (T. 337). He testified that a large crowd had exited the Tralf and
traffic was bumper to bumper (T. 343).
5

Mr. Reed testified that he had known petitioner for approximately two years (T. 395).

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testified that he saw petitioner hand Mr. Scott a gun and then heard petitioner tell Mr. Scott:
“There he go” (T. 396-97, 401). According to Mr. Reed, Mr. Scott then “walked up to the van
and shot the dude” (T. 397, 401).
Jeriel Cobb, Mr. Reed’s brother, also testified that he had gone to Tralf with his
brothers on May 21, 2006, but did not get in to see the concert (T. 472). He stated that he saw
petitioner outside of the Tralf with Mr. Kemp and Mr. Scott (T. 473).6 Mr. Cobb testified that he
saw petitioner hand Mr. Scott a pistol and point toward the traffic (T. 477). According to Mr.
Cobb, Mr. Scott then walked up to a van and “fired off a shot inside a window”. Id. Mr. Cobb
testified that Mr. Scott came back to where they were standing and handed the gun back to
petitioner (T. 478).7 Mr. Reed and Mr. Cobb both also testified that several days after the
shooting, petitioner, Mr. Scott and others came by their family’s home on Box Street and told
them to “keep your mouth shut” (T. 449-50; 480-83).
The jury found Mr. Scott and petitioner guilty on all charges (T. 694-98). On
November 18, 2009, petitioner was sentenced to 25 years to life for murder in the second degree;
15 years plus five years of post-release supervision for criminal possession of a weapon in the
second degree; and three to seven years for criminal possession of a weapon in the third degree. 8

6

He stated that he was familiar with petitioner (T. 473).

James Reed, who is Mr. Reed’s and Mr. Cobb’s brother, was also called as a witness during the trial
(T. 351). Although he had previously provided testimony to the Grand Jury, and had also testified at the
initial trial in this case, he was unable to recall the salient facts when questioned at the retrial (T. 357-66).
7

8

See the transcript of the November 18, 2009 sentencing proceeding, at page 6, which was filed
separately from the trial transcript.

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PROCEDURAL HISTORY
Petitioner appealed his conviction to the New York State Supreme Court
Appellate Division, Fourth Department, asserting the following claims: (1) that he had a right to
be present during a pretrial motion for severance; (2) that the trial court erred in responding to a
jury note by not providing the jury certain instructions requested by defense counsel; (3) that the
admission of prejudicial testimony, refusal to allow admission of defense evidence, and failure of
petitioner to be present for questioning of a juror, cumulatively violated petitioner’s due process
rights; (4) that the verdict was against the weight of the evidence and that there was an
insufficiency of evidence to support the conviction; and (5) that his sentence was unduly harsh.
See Brief for Appellant attached as Exhibit B to the state court records filed on January 13, 2014.
The Fourth Department unanimously affirmed petitioner’s conviction on March
16, 2012,9 and his application for leave to appeal to the New York State Court of Appeals was
denied June 25, 2012.10 He did not seek a writ of certiorari from the United States Supreme
Court.
This federal petition for habeas corpus relief was filed on October 1, 2013[1]. In a
memo attached to his petition, petitioner asserts the following claims for habeas relief: (1) that it
was error not to sever his trial from Mr. Scott’s (Petition [1], p. 18); (2) that the trial judge erred
by failing to include an instruction requested by the defense in response to a note from the jury
(id., p. 22); (3) that the trial judge failed to strike prejudicial testimony; (id., p. 26); (4) that the
trial judge erred by failing to admit two videos (id., p. 27); (5) that petitioner’s rights were

9

People v. Allen, 93 A.D.3d 1144 (4th Dep’t. 2012).

10

People v. Allen, 19 N.Y.3d 956 (2012).

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violated because a juror was questioned outside of his presence (id., p. 28); and (6) that the
evidence was constitutionally insufficient to convict him (id., p. 35).
On December 15, 2015, petitioner filed a writ of error coram nobis with the
Fourth Department. See Motion to Stay [22], Exhibits A and E. In that application, petitioner
argued that trial counsel was ineffective because he failed to use a declaration against penal
interest purportedly made by Scott which petitioner contends was exculpating, and that his
appellate counsel was ineffective for failing to assert that trial counsel was ineffective. Id.,
Exhibit E, pp. 41-78 of 213. The Fourth Department summarily denied the application for coram
nobis relief on March 18, 2016.11
In 2016, petitioner filed a §440.1012 motion, which appears to be currently
pending in State of New York Supreme Court, Erie County. Id., Exhibit F, p. 82 of 213. In that
motion, petitioner asserts that his trial counsel was ineffective. Id., Exhibit F, p. 83 of 213.

TIMELINESS OF THE PETITION
“The Antiterrorism and Effective Death Penalty Act of 1996 [AEDPA] requires a
state prisoner whose conviction has become final to seek federal habeas corpus relief within one
year. Evans v. Chavis, 546 U.S. 189, 191 (2006) (citing 28 U.S.C. §2244(d)(1)(A), (d)(2)).
AEDPA tolls this one-year limitations period for the “time during which a properly filed
application for State post-conviction or other collateral review . . . is pending.” Id.
Petitioner was sentenced on November 18, 2009. Because he timely filed a notice
to appeal his conviction, the AEDPA one year limitations period would not begin running until
his appeal was no longer pending. On June 25, 2012, the New York Court of Appeals denied
11

People v. Allen, 137 A.D.3d 1632 (4th Dep’t. 2016).

12

N.Y. Crim. Proc. Law (“CPL”) §440.10.

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petitioner’s leave to appeal from the Fourth Department’s affirmance of his conviction.
Petitioner did not seek certiorari from the Supreme Court; therefore, the statute of limitations
began running on September 24, 2012, when his ninety-day window for seeking certiorari
expired. See Williams v. Artuz, 237 F.3d 147 (2d Cir. 2001) (state prisoner's conviction becomes
final for purposes of the one-year limitations period under the AEDPA when certiorari has been
denied by the United States Supreme Court or the time for seeking certiorari has expired). Thus,
petitioner had until September 24, 2013 to file his petition.
Allen’s petition for habeas corpus relief was filed by the court clerk on October 1,
2013, seven days after his time to file had expired. However, pursuant to the “prisoner mailbox
rule”, a pro se prisoner’s papers are considered filed when they are handed over to prison
officials for forwarding to the court. See Houston v. Lack, 487 U.S. 266 (1988); Bradley v.
LaClair, 599 F. Supp. 2d 395 (W.D.N.Y. 2009) (applying the rule to federal habeas petitions).
The exact date on which petitioner handed over his petition to prison officials is
not clearly reflected in the record. However, the envelope in which the court received the petition
included a letter dated September 17, 2013, addressed to the Clerk of the Court. See September
17, 2013 Letter [3]. That letter requested that the petition be backdated to the date of the letter,
citing the prisoner mailbox rule. Additionally, the petition is dated September 16, 2013. The
date on which a petition has been signed is presumed to be the date on which the prisoner handed
over the document to prison officials unless rebutted by contrary evidence. See Johnson v.
Coombe, 156 F.Supp. 2d 273, 277 (S.D.N.Y. 2001).
Respondent has not presented contrary evidence to rebut the contention that
petitioner handed over the petition on September 17, 2013. Therefore, the petition is timely.

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EXHAUSTION
It is well settled that a federal court may not consider a petition for habeas corpus
unless the petitioner has exhausted all state judicial remedies. See 28 U.S.C. §2254(b)(1)(A);
Picard v. Connor, 404 U.S. 270, 275 (1971); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997). In
order to exhaust a federal constitutional claim for the purposes of federal habeas review, the
substance of the federal claim, both legal and factual, must be apparent from the petitioner's
presentation to the state court. Picard, 404 U.S. at 275-76. “The claim presented to the state
court, in other words, must be the ‘substantial equivalent’ of the claim raised in the federal
habeas petition”. Jones v. Keane, 329 F.3d 290, 295 (2d Cir. 2003). Generally, this involves the
completion of one full round of appellate review, meaning that the highest state court so
empowered must have been presented with the opportunity to consider the petitioner's federal
constitutional claim. Picard, 404 U.S. at 275–76.
However, “[f]or exhaustion purposes, ‘a federal habeas court need not require
that a federal claim be presented to a state if it is clear that the state court would hold the claim
procedurally barred’”. Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Under such
circumstances, a petitioner “no longer has ‘remedies available in the courts of the State’ within
the meaning of 28 U.S.C. Section 2254(b)”. Id. When a petitioner no longer has “remedies
available” in the state courts because he is procedurally barred by state law from raising such
claims, the habeas court may deem the claims exhausted but procedurally defaulted. Id. at 12021.
The procedural bar that gives rise to the finding that the claim should be deemed
exhausted works a forfeiture and precludes litigation of the merits of the claim, absent a showing
of cause for the procedural default and prejudice resulting therefrom, or by demonstrating that

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the failure to consider the claim will result in a fundamental miscarriage of justice (i.e., actual
innocence). Wainwright v. Sykes, 433 U.S. 72, 87-91(1977).
Here, all of the claims in the petition appear to have been presented to the Fourth
Department upon direct appeal. However, as discussed below, several of the claims were deemed
to be procedurally barred.

MOTION FOR STAY AND ABEYANCE
On June 6, 2016, petitioner filed a motion for a stay and abeyance of his federal
petition [22]. Petitioner seeks a stay, inter alia, to allow him to establish cause and prejudice for
the procedural bars raised by the Fourth Department in the denial of his appeal. Motion to Stay
[22], ¶18.
The Fourth Department found that petitioner failed to preserve his claims relating to the
denial of severance, the trial judge’s response to various notes from the jury, the prejudicial
testimony by Cobb, and the mid-trial interview (with counsel) of a juror. People v. Allen, 93
A.D.3d at 1145-46. In his state court coram nobis proceedings and the §440.10 motion,
petitioner seeks to establish cause and prejudice for any failure to preserve these issues, by
asserting that his trial counsel was ineffective. Motion to Stay [22], Exhibits E and F.
Additionally, the petitioner requested expansion of the court record, assignment of counsel, and
additional discovery. Id. at ¶36.
The Supreme Court has held that district courts have the discretion to issue stays
in habeas corpus proceedings. Rhines v. Weber, 544 U.S. 269 (2005). “A stay should be granted
when a court finds (1) ‘good cause’ for petitioner's failure to exhaust his claims prior to filing the
petition; (2) the unexhausted claims are ‘potentially meritorious’; and (3) there is no indication

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that petitioner ‘engaged in intentionally dilatory litigation tactics’”. Sherrod v. Artus, 2016 WL
3459539 at *2 (W.D.N.Y. 2016) (citing Rhines, 544 U.S. at 277-78).
Here, in order to qualify for a stay under Rhines, petitioner must show “good
cause” for the four year delay from the time he was put on notice of these issues (by the Fourth
Department’s denial of his appeal) until the time he filed the §440.10 motion and the motion for
stay. Petitioner asserts that his status as a pro se prisoner with no legal experience should excuse
the delay. Motion to Stay [22], ¶¶ 89, 90.
Relying on pro se status does not establish “good cause” to justify an over four
year delay. See e.g. Smith v. McKee, 598 F.3d 374, 385 (7th Cir. 2010) (a petitioner's pro se
status does not constitute cause in a cause and prejudice analysis). “Basing a finding of good
cause upon pro se status ‘would render stay-and-abey[ance] orders routine’ and thus run afoul of
Rhines and its instruction that district courts should only stay mixed petitions in ‘limited
circumstances’”. Fletcher v. Rednour, 2011 WL 499305 *4 (S.D. Ill. 2011) (citing Wooten v.
Kirkland, 540 F.3d 1019, 1024 (9th Cir. 2008)).
Petitioner has not shown “good cause” necessary to warrant a stay and abeyance
in this case. In addition, petitioner’s motion for a stay and abeyance is also denied because, as
discussed below, his procedurally barred claims are meritless.13 Because the motion for stay and

13

Petitioner attached a proposed amended petition for habeas corpus relief which he presumably
intended to file after the resolution of his §440.10 motion. This amended petition includes the claims
asserted in his original petition, plus claims of ineffective assistance by trial and appellate counsel.
Motion to Stay [22-1], Exhibit G. Petitioner states that the proposed petition is “still not finished”. Motion
to Stay [22], ¶88. Petitioner’s proposed ineffective assistance of counsel claims are based upon the issues
relating to the severance motions, the handling of the jury and jury notes, the failure to have the videos
admitted, the failure to obtain suppression of the testimony of Mr. Cobb, Mr. Romer and Mr. Reed, and
the failure to file a post-conviction §440.10 motion. Motion for Stay [22-1], pp. 156-92 of 213. All but the
last of these issues underlying petitioner’s ineffective assistance claims are addressed herein and found to
lack merit. While I need not reach the issue of ineffective assistance of counsel, it does not appear that
petitioner has articulated a basis warranting relief under Strickland v. Washington, 466 U.S. 668 (1984).

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abeyance is denied, petitioner’s additional requests for expansion of the court record, assignment
of counsel, and additional discovery are also denied.

ANALYSIS
A.

Standard of Review
Where a petitioner challenges a state court's merits-based ruling, the federal

district court reviews the state court's decision under the deferential AEDPA standard:
“An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim -- (1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or (2) resulted in a
decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.”
28 U.S.C. §2254(d)(1)-(2).
A state court decision is “contrary to” clearly established federal law if “the state
court reached a conclusion of law that directly contradicts a holding of the Supreme Court” or,
“when presented with ‘facts that are materially indistinguishable from a relevant Supreme Court
precedent,’” the state court arrived at an opposite result. Evans v. Fischer, 712 F.3d 125, 132 (2d
Cir. 2013) (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state court decision is an
“unreasonable application” of clearly established federal law if “the state court identifies the
correct governing legal principle from [Supreme Court] decisions but unreasonably applies that
principle to the facts of the prisoner's case”. Williams, 529 U.S. at 413. A federal court may only
“issue the writ in cases where there is no possibility fairminded jurists could disagree that the
state court's decision conflicts with [the Supreme] Court's precedents”. Harrington v. Richter,
562 U.S. 86, 102 (2011).
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When deciding whether a state court has made an unreasonable determination of
facts, federal courts must presume that the facts determined by state courts are correct; therefore,
the petitioner has the burden to rebut the presumption of correctness by clear and convincing
evidence. See 28 U.S.C. §2254(e)(1). A “state court's finding might represent an unreasonable
determination of the facts where . . . reasonable minds could not disagree that the trial court
misapprehended or misstated material aspects of the record in making its finding, or where the
court ignored highly probative and material evidence”. Cardoza v. Rock, 731 F.3d 169, 178 (2d
Cir. 2013). However, “even if the standard . . . is met, the petitioner still bears the ultimate
burden of proving by a preponderance of the evidence that his constitutional rights have been
violated”. Id.

B.

Severance
Prior to the initial trial in this case, before the commencement of a suppression

hearing, Daniel J. Dubois, counsel for Mr. Scott, stated that his client “had expressed some
interest in discussing the possibility of a plea in this case”, and that “the conditions that my client
wanted to put forward was that he take a plea potentially and that his co-defendant would take a
walk and the charges would be dismissed”. Transcript of July 2, 2009 hearing, p. 5. According to
Mr. DuBois, Assistant District Attorney Lawrence M. Schwegler, responded that Mr. Scott could
consider a plea, but that he intended to proceed with the prosecution against petitioner. Id. Mr.
DuBois stated that he placed that on the record because he “just wanted my client to know that I
tried”. Id.
On July 14, 2009, the day before the commencement of the original trial, Michael
O’Rourke, counsel for petitioner, moved to sever based upon the statement made by Mr. DuBois

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during the July 2, 2009 hearing. Transcript of July 14, 2009 proceeding, p.3. Mr. O’Rourke
stated that it was his understanding that Mr. Scott was willing to testify that petitioner did not
hand him the gun used to shoot Mr. Williams. Id., p. 5. According to Mr. O’Rourke, he
understood that Mr. Scott would not testify at a joint trial, but that after a separate trial in which
he was convicted or acquitted, Mr. Scott would provide testimony on behalf of petitioner. Id., p.
4. Mr. O’Rourke also suggested that severance was appropriate because both defendants would
attempt to deflect responsibility for the crime onto each other. Id., p. 6.
ADA Schwegler responded that he was not privy to any conversations between
the respective defense counsel or as to what Mr. Scott “may or may not say”. Id., p. 7. He noted
that Mr. Scott had not, in fact, made any statement, and that Mr. DuBois’ statement at the July 2,
2009 hearing was merely a continued attempt at plea negotiations. Id., p. 12. He stated that the
motion to sever was “an attempt to manipulate these proceedings . . . a dilatory tactic on
[petitioner’s] part who has made complaints that he wanted a new trial part, he wanted the matter
adjourned and so forth”. Id., pp. 7-8. ADA Schwegler opposed the request for severance,
arguing that it was untimely and that the defendants acted in concert to accomplish the crime. Id.,
pp. 8-9. He also noted that the proof against both defendants was supplied by the same evidence.
Id., p. 9. Both Mr. O’Rourke (id., p. 6) and ADA Schwegler (id., p. 9) acknowledged that
severance was subject to the court’s discretion.
Petitioner argues that the denial of his severance motion violated his rights.
Petition [1], p. 4. He raised this issue in his direct appeal to the Fourth Department, which held
that the trial court did “neither abused nor improvidently exercised its discretion” by denying the
motion to sever. People v. Allen, 93 A.D.3d at 1144-45. The Fourth Department stated:

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“Contrary to defendant's contention, there was no irreconcilable conflict between
the defense theories . . . . Here, neither defendant nor the codefendant attempted
to blame the other for the shooting, and both defendants generally took the same
defense approach of attempting to demonstrate that the People could not identify
the codefendant as the shooter. Moreover, there was no significant danger that a
conflict between the defenses would lead the jury to infer defendant's guilt.”
Id. at 1145.
In the context of a federal habeas petition, “the decision [of] whether to grant a
severance is ‘committed to the sound discretion of the trial judge.’ ” Grant v. Hoke, 921 F.2d 28,
31 (2d Cir. 1990). Generally, “[j]oinder rules are a matter of state law and ‘federal habeas corpus
relief does not lie for errors of state law.’ ” Funches v. Walsh, 2006 WL 1063287, *8 (S.D.N.Y.
2006); see also Mercedes v. Herbert, 2002 WL 826809, *5 (S.D.N.Y. 2002) (“A trial court's
denial of a severance motion is considered ‘virtually unreviewable’ ” (quoting United States v.
Friedman, 864 F.2d 535, 563 (2d Cir. 1988)).
Nevertheless, federal courts may grant habeas corpus relief where a trial court's
denial of a severance motion rises to the level of a due process violation. Id. However, such
relief may only be granted where the constitutional error had a “substantial and injurious effect
or influence in determining the jury's verdict”. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
The Second Circuit has “recognized that a joint trial is fundamentally unfair where codefendants
present mutually antagonistic defenses.” Grant, 921 F. 2d at 31. However, “[m]ere antagonism
between defenses is not enough”. United States v. Serpoosh, 919 F.2d 835, 837 (2d Cir. 1990).
The standard is not met where “codefendants seek to place the blame on each other”. Id. To find
a mutually antagonistic defense, a petitioner must show that the conflict is so irreconcilable that
acceptance of one defendant's defense will necessarily lead the jury to convict the other. Id. at
837-38. Accordingly, in cases of antagonistic defenses, severance is required only where “the
conflict is so irreconcilable that acceptance of one defendant's defense requires that the testimony
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offered on behalf of a codefendant be disbelieved,” United States v. Tutino, 883 F.2d 1125, 1130
(2d Cir. 1989), or where “the jury will infer that both defendants are guilty solely due to the
conflict”. Serpoosh, 919 F.2d at 838.
Here, the Fourth Department’s finding that petitioner and Mr. Scott did not
present conflicting defense theories is not an unreasonable application of the facts in light of the
evidence presented. At trial, the defendants essentially used the same strategy: neither defendant
called a witness, and both attempted to undermine the credibility of the government’s witnesses.
The great majority of time on cross examination was used to question the motivation of
witnesses to testify (T. at 240-254, 271-276, 279-303, 317-18, 404-05, 430-35, 494-520, 529532).
Petitioner’s argument that severance should have been granted so that Mr. Scott
could have testified that petitioner did not give him the gun used to kill Mr. Williams is also
unavailing. “When a defendant moves for a severance because he asserts a codefendant would
offer exculpatory testimony at a separate trial, four factors must be examined: (1) proof that a
codefendant would waive his Fifth Amendment privilege and testify at a severed trial; (2)
whether exculpatory testimony would be cumulative; (3) the policy favoring judicial economy,
and (4) whether it is likely that the offered testimony would be subject to effective
impeachment.” United States v. Cardascia, 951 F.2d 474, 485 (2d Cir. 1991).
Initially, the record does not reflect the scope of testimony, if any, that Mr. Scott
would have provided had he testified.14 It was asserted only that he would testify that petitioner
did not give him the gun. In light of the testimony from three other witnesses stating that they
14

Indeed, the record does not reflect any actual statement, written or verbal, made by Mr. Scott to the
effect that he would testify on behalf of petitioner. Contrary to petitioner’s conclusory arguments (Motion
to Stay [22-1], pp. 156-66 of 213), petitioner has not demonstrated that the representations made by Mr.
DuBois constitute a statement against penal interest made by Mr. Scott or created a conflict on the part of
Mr. O’Rourke in defending petitioner.

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saw petitioner give Mr. Scott the gun, the jury would be free to discredit Mr. Scott’s testimony,
particularly if he did not present persuasive evidence as to where he did obtain the gun. Thus,
any such testimony from Mr. Scott would likely have been subjected to effective impeachment.
In any event, the record in this case does not reflect that Mr. Scott agreed to waive
his Fifth Amendment privilege. Indeed, petitioner points to Mr. Scott’s unwillingness to waive
his Fifth Amendment right as a basis for his motion for severance. Petition [1], p. 4. See United
States v. O'Connor, 650 F.3d 839, 859 (2d Cir. 2011) (“a defendant's professed desire to elicit
trial testimony from a codefendant does not require a severance where there is no showing of a
likelihood that the codefendant would waive his Fifth Amendment privilege and testify at a
severed trial”).
Several circuits have held that severance is not required where, as here, a
codefendant conditions his testimony upon being tried before the other defendant. See United
States v. Smith, 46 F.3d 1223, 1231 n. 3 (1st Cir. 1995) (“an offer to testify, conditioned on one
defendant being tried before the other, fails to satisfy the elements of a prima facie case for
severance”) citing United States v. Washington, 969 F.2d 1073, 1080 (D.C. Cir. 1992); United
States v. Blanco, 844 F.2d 344, 352–53 (6th Cir. 1988); United States v. Haro-Espinosa, 619
F.2d 789, 793 (9th Cir. 1979); United States v. Becker, 585 F.2d 703, 706 (4th Cir. 1978)). The
Supreme Court has not clearly established that severance is required under the circumstances
present in this case.
Petitioner also argues that because neither he nor Mr. O’Rourke were present for a
severance motion made by Mr. DuBois on behalf of Mr. Scott prior to the second trial, he was
“denied his fundamental right to be present at a material stage of the proceeding as well as his

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right to counsel at that proceeding”. Petition [1], p. 5. The Fourth Department determined that
petitioner failed to preserve this issue for appellate review. People v. Allen, 93 A.D.3d at 1145.
A state court's finding of procedural default will bar federal habeas review of the
federal claim unless the petitioner can show “cause” for the default and “prejudice attributable
thereto”, or demonstrate that failure to consider the federal claim will result in a “fundamental
miscarriage of justice. ” Harris v. Reed, 489 U.S. 255, 262 (1989). Ineffective assistance of
counsel can serve as “cause” excusing procedural default. Tavarez v. Larkin, 814 F.3d 644, 650
(2d Cir. 2016).
Even if petitioner were able to able to demonstrate cause, this claim must still be
denied. Prior to the second trial, Mr. DuBois moved for severance because Mr. O’Rourke had
questioned one of the prosecution’s witnesses about his prior identification of Mr. Scott from a
photo array during the first trial. See August 3, 2011 Brief for Appellant, p. 10. As had been
argued with respect to petitioner’s severance motion prior to the first trial, Mr. DuBois asserted
that severance was warranted because he intended to adopt an adversarial stance toward
petitioner in the second trial. Id., p. 11. Such an argument, without more, does not meet the
standard articulated under Grant, Serpoosh and Tutino.
Further, it appears undisputed that petitioner was mailed a copy of Mr. Scott’s
severance motion. See September 27, 2011 Brief for Respondent, p. 14. It may have been, as
respondent asserts, that having already extensively, but unsuccessfully, argued for severance
prior to the first trial, Mr. O’Rourke had no additional arguments to offer with respect to Mr.
Scott’s motion for severance. Id. Indeed, petitioner has not articulated any argument which he or
Mr. O’Rourke would have made with respect to Mr. Scott’s severance motion that was not

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previously offered, and rejected, in support of his own motion for severance prior to the original
trial.
In any event, it has not been clearly established by the Supreme Court that a
defendant has a right to be present at a severance motion, whether filed on his own behalf or that
of a co-defendant. On the contrary, it has been held that the failure of a defendant to be present
for the argument of a motion for severance is harmless error. See Mathews v. Crosby, 2005 WL
3556041, *18 (M.D. Fla. 2005) (Mathews has not shown how his absence from any hearing on
the motion for severance thwarted a fair and just hearing or how his presence would have
contributed to the fairness of the hearing. A defendant has no constitutional right to be present
for proceedings involving purely legal matters”); Dixon v. Miller, 2005 WL 3240482, *13
(E.D.N.Y. 2005) (“Even if petitioner's rights were violated by his exclusion at this stage, such
error would have to be deemed harmless, since petitioner cannot demonstrate that the error ‘had
substantial and injurious effect or influence in determining the jury's verdict . . . . Petitioner has
not suggested any way that his presence could have altered the outcome of the proceeding or of
the remainder of the trial”).
Therefore, petitioner’s motion for habeas corpus relief based upon the denial of
his motion to sever or his lack of presence at Mr. Scott’s motion to sever is denied.

C.

Handling of Jurors and Jury Notes
Petitioner asserts various claims relating to the handling of notes from the jury by

Hon. Christopher Burns, the judge who presided over petitioner’s trial. Petition [1], p. 22. He
also argues that Justice Burns improperly questioned a juror after observing what he thought

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might be an interaction between the juror and an unidentified person in the courtroom gallery.
Id., p. 13.
First, petitioner argues that Justice Burns erred in responding to a note from the
jury which requested to have a portion of the jury instructions re-read to them. Petition [1], p. 22.
In that note, the jury requested the “points of conviction for Murder in the 2nd Degree” (T. 68687). Justice Burns determined that by “points”, the jury meant “elements”. Id. In addition to the
elements of the murder charge, however, Mr. Dubois asked Justice Burns to include part of the
identification instructions, which advised that to convict on the murder charge the jury would
have to be able to identify Mr. Scott as being the shooter (T. 687). The following exchange took
place:
Mr. DuBois: “Well, I’m not asking you for the instruction on identification as a whole,
meaning the ability to see. I’m not asking for that. I’m asking just for the
part that says – where you told them that you have to be able to say that
this is – he’s the guy that did it and then the charge of murder. That’s all
I’m asking for.
Justice Burns: I am saying the elements are: That on or about the time, date and place the
defendant, Rickie Scott, personally or acting in concert with (sic) caused
the death, et cetera, and did so with the intent to cause the death; and the
same with Mr. Allen. That’s what they asked for.
Mr. DuBois: I guess I would – I don’t think it’s that specific. I think they asked for the
points and I would just ask that in addition to those two elements they
have to find it was in fact Rickie Scott that committed the crime. That’s all
I want. That’s the only addition I want.
Justice Burns: How is that different from what I just read?
Mr. DuBois: Well, it’s very different. Because you said that have to find that Rickie
Scott is the one who did it, but that’s different from the actual “You also
have to find that not only was it Ricki Scott, but then you have to find that
he committed these crimes.” So it is different. That’s all I’m asking for,
judge.”
(T. 688-89)

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Justice Burns decided that he would provide the jury with “what they requested”
and that “[i]f they want more, I’ll give them more” (T. 689). After bringing the jury into the
courtroom, Justice Burns asked the jury whether if by “points of conviction” they meant the
elements, to which Juror No. 11 responded: “yes” (T. 690). Justice Burns then re-read the
elements for murder in the second degree to the jury. Id.
Petitioner also asserts that Justice Burns’ handling of other notes also improperly
influenced the jury. Petition [1], p. 10. In this regard, petitioner points to the fact that after the
jury first requested a read-back of the entire testimony from two witnesses, Justice Burns asked
the jury if they could be more specific as to what portions of the testimony they wanted to hear
(T. 681-82). The jury’s subsequent note requested the portion of testimony from Tyquan
Bolden15 in which he described the shooter (T. 683).
After reading the subsequent note relating to Mr. Bolden’s testimony, Justice
Burns, along with counsel and the court reporter, attempted to identify which portions of Mr.
Bolden’s testimony responded to the jury’s note (T. 682). The record reflects that the jury was
not present in the courtroom at the time. Id. Mr. DuBois stated: “I would just ask that in the event
that there’s something that’s not read that either myself or Mr. O’Rourke seems to think was
there, I would ask that before sending them away, we would be allowed to consult with Your
Honor outside their presence” (T. 684). In response, ADA Schwegler stated:
“Judge, along those lines, I’m a little bit uncomfortable with these guys
conversing in the box out there. I think you instructed them, maybe you
can do it again, “Be as specific as you can. What you ask for will be read”.
But, you know, not that’s good or go to the next one. Give them what they
want without this mini-deliberation here.”
Id.

15

Mr. Bolden was in the van with Williams when he was shot (T. 373-74).

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Petitioner mistakenly interprets the prosecutor’s comment as suggesting that a
“mini-deliberation” by the jurors had been conducted in the courtroom. Petition [1], p. 10. The
record is clear that the jurors were not in the courtroom, and that the prosecutor’s comments
were in reference to defense counsel’s request to review the testimony after it had been read back
to the jurors, so that they might suggest other portions to be read back to the jury.
On direct appeal, the Fourth Department rejected these claims as not being
preserved for appeal. People v. Allen, 93 A.D.3d at 1145. Again, even if petitioner were able to
establish cause with respect to these procedurally barred claims, they would be denied on the
merits because the record does not reflect that petitioner was denied a fair trial in any way
because of the manner in which the jury notes were handled.
Generally, a state court trial judge is required to respond to a note from the jury as
set forth in CPL §310.30.16 Federal habeas courts have routinely dismissed claims of a trial
court's noncompliance with CPL §310.30 on grounds that they fail to implicate federal law, and a
due process right in this context has not been clearly established by the Supreme Court. Bramble
v. Connolly, 2011 WL 2471515, *7 (E.D.N.Y. 2011).
As discussed above, the record reflects that Justice Burns complied with §310.30.
Moreover, petitioner has not established any prejudice arising from the manner in which Justice
Burns handled the various notes from the jury. He responded to the notes after consulting with
counsel and provided the jury with the information the jury had requested. Petitioner does not
CPL §310.30 provides, in part, that “[a]t any time during its deliberation, the jury may request the
court for further instruction or information with respect to the law, with respect to the content or
substance of any trial evidence, or with respect to any other matter pertinent to the jury's consideration of
the case. Upon such a request, the court must direct that the jury be returned to the courtroom and, after
notice to both the people and counsel for the defendant, and in the presence of the defendant, must give
such requested information or instruction as the court deems proper.
16

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assert any infirmity with respect to original instructions provided to the jury. Justice Burns did
not refuse to provide any clarification of the original charge requested by the jury. The record
does not suggest that the jury was under any misapprehension as they deliberated or that
petitioner was denied a fair trial in any way because of the manner in which the jury notes were
handled.
Petitioner also claims that Justice Burns improperly questioned one of the jurors
outside of his presence. In a conference with counsel held in chambers, Justice Burns advised the
attorneys that he had observed an individual seated in the front row of the gallery “who was
rocking back and forth and appeared to be trying to get the attention of the defendants. When
Defendant Scott turned around, they clearly had eye contact. The man winked at him and Scott
nodded his head in acknowledgement. The man then immediately looked at the jury and smiled.
And I looked at the jury and noticed that [Juror No. 11] . . . appeared to be looking in the
direction of the man. The juror immediately looked at me. I believe it invites inquiry as to
whether he is acquainted with this man or know him at all” (T. 572-73).
After some discussion with counsel as to what, if anything, he should do based
upon his observation, Justice Burns determined that an inquiry into whether Juror No. 11 was
familiar with the man in the gallery was necessary (T. 577). He also determined that inquiry was
necessary into whether Juror No. 11 was related to a criminal who had recently been in the news
who shared Juror No. 11’s “fairly unusual” name (T. 578). Although that criminal was unrelated
to this case, Justice Burns noted that during jury selection Juror No. 11 did not respond
affirmatively when asked if he or any relative had ever been a defendant (T. 583-84).
Justice Burns then had Juror No. 11 brought into chambers, with counsel present
(T. 579). He noted his observation of the man in the gallery and asked Juror No. 11 if he was

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familiar with that man (T. 580). Juror No. 11 stated that he did not know the man. Id. Justice
Burns made it clear that he was inquiring because of what he had observed, and noted that the
attorneys did not see anything (T. 582). He also asked the juror if he felt intimidated or if had
gotten any impression that would affect his ability to be fair and impartial in the case (T. 581).
Juror No. 11 responded negatively. Id.
Justice Burns also inquired as to whether Juror No. 11 was related to an individual
with the same last name who had recently been in the news (T. 582). Juror No. 11 stated that the
person in the news was his second cousin. Id. He stated that he had been away from Buffalo for
20 years and did not know that his cousin had been in jail until he read it in the newspaper a few
days earlier (T. 582-83). Justice Burns again asked Juror No. 11 if there was anything about that
relationship that would affect him in deciding this case “for or against” (T. 583). Juror No. 11
responded: “No, absolutely not”. Id.
Upon the conclusion of the inquiry, and after Juror No. 11 had been brought back
to the jury room, Mr. O’Rourke noted that although he had objected to the judge making any
inquiry, he had “to admit [Justice Burns] handled it very well” (T. 584). Petitioner has not
established, and the record does not reflect, that this inquiry had any impact on the deliberations
of Juror No. 11 or the jury as a whole.
The Supreme Court has held that a defendant need not be present at every in
camera proceeding. A defendant facing criminal charges has the “right to be present at a
proceeding whenever his presence has a relation, reasonably substantial, to the fullness of his
opportunity to defend against the charge . . . . [T]he presence of a defendant is a condition of due
process to the extent that a fair and just hearing would be thwarted by his absence, and to that
extent only”. United States v. Gagnon, 470 U.S. 522, 526 (1985).

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The question presented in Gagnon is analogous to this case. There, it was held
that the defendant had no constitutional right to be present at an in camera discussion between a
juror, the judge, and defense counsel regarding the juror's concern that the defendant had been
drawing pictures of the jurors. Gagnon, 470 U.S. at 524, 527. The court stated that the defendant
“could have done nothing had [he] been at the conference, nor would [he] have gained anything
by attending.” Id. at 527.17
Here, petitioner claims that he had a right to be present during the inquiry so that
he could “assess the juror’s demeanor and, perhaps, contribute to the questions asked of the
juror”. Petition [1], p. 15. Aside from this conclusory statement, petitioner does not articulate
what he could have contributed or gained had he been present for the inquiry. Indeed, Justice
Burns made it clear that this was his inquiry and that he would not open it “up to a crossexamination of the juror” (T. 578). As in Gagnon, petitioner’s presence at the inquiry would have
gained him nothing and may have been counterproductive.
In any event, petitioner’s failure to be present during the in camera inquiry of
Juror No. 11 did not constitute a violation of clearly established federal law as determined by the
Supreme Court. Petitioner’s various claims relating to the handling of the jury, considered
separately and in the aggregate, do not established that he was deprived of a fair trial in any way.

Respondent argues that petitioner’s presence at the inquiry with Juror No. 11 may have intimidated
the juror and inhibited candor. Respondent’s Memorandum of Law [6], p. 18. This was a concern of the
Court in Gagnon as well, which stated: “Indeed, the presence of Gagnon and the other respondents, their
four counsel, and the prosecutor could have been counterproductive”. Gagnon, 470 U.S. at 527.
17

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D.

Prejudicial Testimony
Petitioner argues that Justice Burns erred by failing to strike allegedly prejudicial

testimony by Mr. Cobb and Mr. Romer. Petition [1], p. 11. In both instances, the testimony was
elicited on cross-examination in response to questions posed by Mr. DuBois.
Mr. DuBois, who was seeking to discredit Mr. Cobb’s testimony, asked Mr. Cobb
why he did not go to the police immediately after witnessing the shooting instead of waiting two
years to make a statement (T. 491-92). Initially, Mr. Cobb stated that he did not call the police
because he “didn’t do it” (T. 491). Pressing the issue, Mr. DuBois asked Mr. Cobb: “I want to
know how are you’re here . . . What lead you to be here today” (T. 492). After persistent
questioning by Mr. DuBois, Mr. Cobb responded that he made a statement “mostly” because
petitioner was “around my Mom” (T. 492). When asked to explain, Mr. Cobb stated: “Kevin was
around my mother[’s] house dating one of my cousins and I figured that he was trying to rob my
house” (T. 493).
Mr. O’Rourke objected to this testimony by Mr. Cobb. However, Justice Burns
overruled the objection stating that Mr. Cobb was asked for his thought process, so he was
allowed to testify to it (T. 493). Petitioner argues that this testimony was prejudicial because it
insinuated petitioner’s propensity to commit crime. Petition [1], p. 11. He also asserts that
Justice Burns erred by failing to provide a limiting instruction to the jury. Id. On appeal, the
Fourth Department held that petitioner failed to preserve this issue for review. People v. Allen,
93 A.D.3d at 1146.
Similarly, Mr. DuBois sought to discredit the testimony of Mr. Romer by
suggesting that his was testifying so that he could receive a less severe sentence for his
conviction of an unrelated crime (T. 274). The following exchange took place:

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Mr. DuBois: “Do you know why you were looking at 25 years as of yesterday and now
you have 22 years? Do you know how that happened?
Mr. Romer:

I mean a lot of things lead to that.

Mr. DuBois: Like what?
Mr. Romer:

My wife being assaulted, death threats. Showing the paperwork. I don’t
care less about that.

Mr. DuBois: Because your wife was assaulted and you received death threats, Mr.
Schwegler was generous enough to cut three years off your sentence; is
that your testimony?
Mr. Romer:

That’s not what it was. Like I said there was a lot of things that lead to
that.”

Id.18
Mr. O’Rourke again objected. However, Justice Burns allowed the questioning, as
it explained why the witness was testifying (T. 274-75). Mr. DuBois was entitled to question Mr.
Cobb and Mr. Romer about their motivation to testify against his client. In fact, the motivation of
a witness in testifying, including his possible self-interest and any bias or prejudice against the
defendant, is one of the principal subjects for cross-examination. Henry v. Speckard, 22 F.3d
1209, 1214 (2d Cir. 1994).
Even if it were to be considered an error to allow the testimony, such error was
harmless. The erroneous admission of evidence is harmless if the court “can conclude with fair
assurance that the evidence did not substantially influence the jury”. United States v. Garcia, 291
F.3d 127, 143 (2d Cir. 2002). In determining whether the erroneous admission evidence was
harmless, the following factors are to be considered: “(1) the overall strength of the prosecution's
case; (2) the prosecutor's conduct with respect to the improperly admitted evidence; (3) the

18

Mr. Romer was not asked, and he did not state, who assaulted his wife or made the death threats.
There is nothing in the record attributing this conduct to petitioner or Mr. Scott.

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importance of the wrongly admitted [evidence]; and (4) whether such evidence was cumulative
of other properly admitted evidence”. United States v. Ivezaj, 568 F.3d 88, 98 (2d Cir. 2009).
Here, the strength of the prosecution’s case against petitioner was strong. Three
witnesses each testified that they observed petitioner give Mr. Scott a gun, and then saw Mr.
Scott walk to the street and shoot Mr. Williams (T. 236, 396-401, 477). Two other witnesses,
both off-duty law enforcement officers, placed petitioner at the scene at the time of the shooting
(T. 338-40, 536). With respect to the second factor, the prosecution played no role in the
introduction of the challenged testimony as in both instances it was elicited by defense counsel.
Moreover, the challenged statements did not play an important role in the case. In
each instance, the challenged testimony consists of isolated statements that were a small portion
of the cross-examination which primarily sought to discredit the witnesses by detailing their
respective criminal history (T. 240-54, 486). In any event, this testimony did not go to any of the
elements of the charged crimes or defenses. Indeed, it may be argued that the jury could have
discounted Mr. Cobb’s testimony if they determined that he made the statement to the police to
keep petitioner away from his mother’s house, and not because he actually witnessed the crime.
Similarly, the jury could have determined that Mr. Romer’s testimony was unreliable because he
was testifying to obtain a lesser sentence.
Upon review of the record as a whole, the isolated statements by Mr. Cobb and
Mr. Romer regarding their motivation to testify were not central to the case. The record does not
reflect that the isolated statements being challenged substantially influenced the jury’s decision.
This is particularly so in light of the fact that the testimony as to the events of Mr. William’s
murder provided by Mr. Cobb and Mr. Romer was consistent with each other and with the
testimony provided by Mr. Reed.

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Because there is nothing in the record to indicate that the admission of the
challenged testimony violated the “fundamental fairness” of petitioner's trial (Estelle v. McGuire,
502 U.S. 62, 72 (1991)), petitioner’s request for habeas corpus relief on this ground is denied.19
E.

Videos of the Scene on Main Street
Petitioner also argues that he was denied the right to present a defense because

Justice Burns denied his request to admit two videos showing events inside the Tralf and
depicting the scene on Main Street outside the Tralf (T. 550, 585). Petitioner does not claim that
the videos include the shooting, or any of the defendants or witnesses involved in the trial.
Similarly, petitioner does not claim that the videos depict the area at which the shooting or the
events leading up to the shooting occurred. Instead, petitioner argues that the videos would show
the “pandemonium” occurring in the area, which would lend credence to his defense of
misidentification. Petition [1], p. 12-13.
After reviewing the videos, Justice Burns determined that they did not “show
anything relevant inside [the Tralf] other than that there was a crowd there, we know that. The
[videos] outside are not relevant because it’s in a different location than the incidents that took
place with regard to this matter. What happened on Main Street in front of the Tralf is irrelevant
[as to what happened] on Pearl Street behind the Tralf. It’s a block away” (T. 587). He stated that
there had already been significant testimony as to the scene involved in the shooting and ruled
that the videos were not competent evidence. Id.
Although a defendant has the fundamental right to present evidence and call
witnesses in his own defense, see Chambers v. Mississippi, 410 U.S. 284, 302 (1973), state
19

Although petitioner argues that the testimony of Mr. Cobb, Mr. Romer, and Mr. Reed was defective
and that Mr. O’Rourke was ineffective for failing to have it suppressed in its entirety (Motion for Stay
[22-1], pp. 180-87 of 213), he fails to articulate any adequate basis warranting suppression of this
testimony.

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courts are permitted “to exclude evidence through the application of evidentiary rules that
themselves serve the interests of fairness and reliability - even if the defendant would prefer to
see that evidence admitted”. Crane v. Kentucky, 476 U.S. 683, 690 (1986). In the context of a
habeas corpus petition, an erroneous evidentiary ruling does not rise to the level of constitutional
error unless “the omitted evidence [evaluated in the context of the entire record] creates a
reasonable doubt that did not otherwise exist”. Jones v. Stinson, 229 F.3d 112, 120 (2d
Cir.2000).
The exclusion of the videos did not prevent petitioner from presenting a defense
in this case. Testimony had been elicited from several witnesses describing the scene as chaotic
(T. 540), not calm (T. 410), a riot (T. 538), a mini-riot (T. 546), leading Justice Burns to question
whether the videos were merely cumulative (T. 551). In any event, because the videos depict the
area on Main Street around the block from where the events involved in the trial took place,
when evaluated in the context of the entire record, they do not constitute evidence which would
create a reasonable doubt as set forth in Jones.
Petitioner’s request for habeas corpus relief in this ground is denied.

F.

Insufficiency of the Evidence
Finally, petitioner argues that the evidence was “constitutionally insufficient”

with respect to his conviction for murder in the second degree because the prosecution did not
establish that he acted with the intent to cause the death of Mr. Williams. Petition [1], p. 20.
In reviewing a sufficiency of evidence claim, the court must “determine whether
there is any valid line of reasoning and permissible inferences which could lead a rational person
to the conclusion reached by the jury on the basis of the evidence at trial and as a matter of law

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satisfy the proof and burden requirements for every element of the crime”. People v. Bleakley,
69 N.Y.2d 490, 495 (1987). Ultimately, the question is whether the evidence adduced at trial
was sufficient to support the conviction. In this regard, a petitioner “is entitled to habeas corpus
relief if it is found that upon the record evidence adduced at the trial no rational trier of fact
could have found proof of guilt beyond a reasonable doubt”. Policano v. Herbert, 507 F.3d 111,
115-16 (2d. Cir. 2007) quoting Jackson v. Virginia, 443 U.S. 307, 324 (1979). “[A] petitioner
bears a very heavy burden in convincing a federal habeas court to grant a petition on the grounds
of insufficiency of the evidence”. Policano, 507 F.3d at 116.
Here, the evidence is sufficient to support petitioner’s conviction for murder in
the second degree. As discussed above, three witnesses testified that they saw Mr. Kemp say that
he wanted Mr. Varner killed; that Mr. Scott stated he would do it; that petitioner then provided
Mr. Scott with a gun which Mr. Scott used to kill Mr. Williams (thinking it was Mr. Varner) (T.
236, 396-401, 477).20 The jury could reasonably infer that in providing the gun to Mr. Scott,
right after Mr. Scott agreed to kill Mr. Varner, petitioner intended Mr. Scott to use the gun to kill
Mr. Varner. Under New York law, such conduct is sufficient to support a conviction of murder
in the second degree. See People v. McKnight, 306 A.D.2d 546, 547 (3d Dept. 2003) (supplying
a deadly weapon knowing that weapon was to be used to commit a murder is sufficient to
establish defendant's criminal intent for murder in the second degree).
Petitioner’s request for habeas corpus relief on this ground is also denied.

Petitioner claims that the testimony of these witnesses was “contradictory and, therefore, not
credible”. Petition [1], p. 15. The petitioner does not identify, and the record does not reflect, any
meaningful contradictions in the testimony of these witnesses.
20

- 29 -

CONCLUSION
For the reasons discussed above, petitioner’s motion for a stay and abeyance [22] is
denied, and the petition [1] is also denied. Pursuant to 28 U.S.C. § 1915(a)(3), I hereby certify
that any appeal from this Order would not be taken in good faith. Therefore, leave to appeal to
the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438, 82 S.
Ct. 917, 8 L. Ed.2d 21 (1962). Further requests to proceed on appeal as a poor person should be
directed, on motion, to the United States Court of Appeals for the Second Circuit, in accordance
with Rule 24 of the Federal Rules of Appellate Procedure.

Dated: October 12, 2016
/s/ Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge.

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