Allan v. Conway

Decision Date10 January 2012
Docket NumberNo. 08-CV-4894 (JFB),08-CV-4894 (JFB)
PartiesBakhosheq Allan, Petitioner, v. James Conway, Respondent.
CourtU.S. District Court — Eastern District of New York

JOSEPH F. BIANCO, District Judge:

Bakhosheq Allan (hereinafter, "Allan" or "petitioner"), petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his conviction entered in the County Court of the State of New York, County of Suffolk (the "trial court"), for murder in the second degree (N.Y. Penal Law § 125.25(1)). Allan was sentenced to a term of imprisonment of twenty-five years to life.

Allan challenges his conviction on five grounds. Specifically, petitioner asserts that: (1) the evidence was insufficient as a matter of law to support a finding of guilt beyond a reasonable doubt; (2) there was prosecutorial misconduct because (a) various summation comments by the prosecutor deprived petitioner of a fair trial; (b) the prosecution introduced hearsay into evidence and elicited expert testimony from a lay witness; and (c) the prosecution failed to disclose potentially exculpatory material in a timely manner; (3) defense counsel failed to provide effective representation by failing to (a) request an accomplice instruction; (b) request jury instructions on each element of the charged crime; (c) request a hearing regarding identification evidence; (d) object to the trial court's circumstantial evidence instruction; (e) object to the introduction of hearsay testimony, and (f) object to the prosecution's summation; (4) the trial court erred when it (a) improperly instructed the jury regarding circumstantial evidence; (b) failed to instruct the jury that Donald Johnson was an accomplice; (c) shifted the burden of proof in its Brady ruling; (d) allowed the prosecution to introduce hearsay into evidence; and (e) permitted several in-court identifications that lacked an independentbasis; and (5) the trial court improperly denied petitioner a Wade or Rodriguez hearing. As discussed below, the petitioner has procedurally defaulted on the claims that fall under (2), (4), and (5). In any event, the Court has examined each of the petitioner's claims on the merits and concludes that there is no basis for habeas relief. All of petitioner's claims are without merit. Therefore, the petition is denied in its entirety.


Trial began on May 11, 2004. The prosecution presented evidence from twenty-five witnesses1 , ranging from the various people who lived at 28 Cypress Avenue, Flanders/Riverhead, NY ("28 Cypress Avenue"), individuals who had a relationship with the victim, a medical doctor, a detective and several police officers, regarding the events that occurred during the summer of 2001 which ultimately led to the murder of Javon Riddick. Giselle Douglas, Monique Parrish, Kodie Lister, Shaneka Jackson, Dennis Jackson, Gilbert Henderson, and Donald Johnson all testified about their interactions with both petitioner and the victim, and about the lifestyle and events at 28 Cypress Avenue, both in general and on September 7, 2001. Detective Henry Hinssen and Police Officers Eric Plum, Scott Johnson, and Marco Calise testified about the physical evidence recovered from 28 Cypress Avenue, the victim's vehicle, the pond where Donald Johnson dumped the gun, and the statements made at the scene by various members of the 28 Cypress Avenue community regarding Riddick's death.

A. Background

The following facts are adduced from the instant petition and underlying record.

During the months leading up to September 7, 2001, 28 Cypress Avenue in Flanders, NY was home to a large number of people. (Tr. at 1257-60.)2 Among the individuals living at the address were Dennis Jackson, his sister Shaneka Jackson and her two children, his brother Philip Jackson, and his cousin Gilbert Henderson and his two children. (Id. at 1257.) There were additional people - Gregory Booker, Kodie Lister, Monique Parrish, Tiffany Parrish and Julie Jackson - who stayed at the home from time to time. (Id. at 1257-1258.)

Petitioner (a.k.a. "Box") came to the Riverhead area several months before September 7, 2001. (Id. at 1260, 1573.) Petitioner split time living at 96 Cypress Avenue with his cousin and aunt, at 28 Cypress Avenue, and in his car. (Id. at 1260-61, 1414). Petitioner, Dennis Jackson (a.k.a. "Dune"), Albert Daniels (a.k.a. "Roscoe"), and Donald Johnson (a.k.a. "Pootie") all lived at 28 Cypress Avenue and sold drugs at and around the home. (Id. at 993, 997-98, 1161, 1171, 1194-95, 1262, 1330.) Javon Riddick (a.k.a. "Voo") supplied drugs to petitioner, Dennis Jackson, Donald Johnson and Albert Daniels. (Id. 1364-65, 1396, 1403-04, 1455-57.)

Approximately one week prior to Riddick's death, petitioner began speakingbadly about Riddick,3 because petitioner suspected that Riddick was shorting him on the drugs he sold to petitioner. (Id. at 1416-1418, 1575-77, 1631-32.) Consequently, petitioner told Dennis Jackson and Donald Johnson that he had considered forcibly taking money from Riddick. (Id. at 1416-17, 1575-77.)

At 10:30 a.m. on September 7, 2001, petitioner and Donald Johnson met to discuss a .45 caliber handgun that Donald Johnson wanted to buy from petitioner. (Id. 1577-78.) Petitioner explained to Donald Johnson that, by the end of the day, he planned to rob Javon Riddick and then leave Riverhead. (Id. at 1578, 1580-82.) Petitioner knew that, with the approaching weekend, there would be a greater demand for drugs and Riddick would therefore be carrying a large amount of money.4 (Id. at 1595.) Petitioner followed Donald Johnson, who was driving Albert Daniels' vehicle, to a McDonald's restaurant, where petitioner parked his vehicle, purchased food, and returned to 28 Cypress Avenue with Johnson in Daniels' vehicle. (Id. at 1581-85.) During the drive, petitioner placed a call to Javon Riddick on his cell phone. (Id. at 1585.)

Javon Riddick was scheduled to work his normal shift at Wal-Mart that evening, starting at 10:00 p.m. (Id. at 1370.) Before leaving for work, Riddick stopped at his mother's house and then went to the home of a relative. (Id. at 1369-1371.) Since Riddick did not have a driver's license, a friend, Joe Pita, drove Riddick places frequently, operating Riddick's white Mercury Grand Marquis. (Id. at 1361.) After Riddick picked up his two young cousins from a nearby relative's house, Joe Pita drove the four of them to 28 Cypress Avenue. (Id. at 1367-73.) During the drive, Riddick received a call from petitioner. (Id. at 1373-75.) Upon arriving at 28 Cypress Avenue, Riddick entered the home, while Pita and Riddick's two cousins waited in the vehicle for his return. (Id. at 1477.)

When Riddick got to 28 Cypress Avenue, most of the residents and some guests were having a party in Dennis Jackson's basement bedroom. (Id. at 984-85, 1036-37, 1138, 1421, 1511-13.) The other basement bedroom was occupied by Gregory Booker.5 (Id. at 999.) The partygoers in Dennis Jackson's room were playing music, drinking alcohol and smoking marijuana. (Id. at 984, 1138, 1179-80, 1334.)

Riddick entered 28 Cypress Avenue through a side door that opened directly into the kitchen. (Id. at 1283-84.) Petitioner, Giselle Douglas and Shaneka Jackson were in the kitchen. (Id. at 960-62, 1275-76, 1422.) Petitioner and Riddick went down to the basement, while Giselle Douglas and Shaneka Jackson remained in the kitchen. (Id. at 962-963, 1283-84, 1337-38.)

Between one half minute to a minute later, the individuals6 at 28 Cypress Avenue heard several loud noises. (Id. at 964, 1037-38, 1143-44, 1180-82, 1423-25, 1514-15.) Upon hearing the noises, Giselle Douglas and Shaneka Jackson went downstairs into the poorly illuminated, debris-filled

basement. (Id. at 794-96, 801-802, 935, 963-64, 1289.) Giselle Douglas, being infront of Shaneka Jackson, checked Dennis Jackson's room, where no one seemed alarmed. (Id. at 964, 985.) When she looked into Booker's bedroom by pushing aside the curtain that separated the room from the remainder of the basement, she saw petitioner standing over the body of Riddick, holding a gun in one hand and patting down Riddick's body with the other. (Id. at 964-68, 970-71, 985-86.) Petitioner looked up and made eye contact with Giselle Douglas for one or two seconds before Giselle Douglas turned and ran up the stairs, passing Shaneka Jackson on the way. (Id. at 966, 971, 986-87.)

Shaneka Jackson, after also looking in Dennis Jackson's room and noting that the occupants were unperturbed, looked into Booker's room where she saw a Black female outside the door. (Id. at 1290-92, 1322.) As the other woman was leaving, Shaneka Jackson peered into Booker's room and saw petitioner standing over Riddick and putting something into petitioner's pants pocket. (Id. at 1292-95.) She also saw petitioner search Riddick and remove money from the latter's pocket, put it into his own pocket and exclaim, "Mother f****r, I finally got you." (Id. 1293-96.)

After the killing, petitioner approached Joe Pita, who had been waiting in the victim's vehicle with the victim's two nieces in front of 28 Cypress Avenue. (Id. at 1377-80, 1477-80.) When petitioner said that Riddick wanted to see Pita, Pita left the car with the key in the ignition and walked towards the house. (Id. at 1378-80). One of Riddick's young relatives, Portia, got out of the car, but soon thereafter petitioner sped away in the vehicle with the victim's other young relative, Tasheeya, still inside. (Id. at 1107-1111, 1479-80.) Petitioner drove to a Citgo gas station near the McDonald's restaurant in Riverhead where he had parked his car; there, he got out and abandoned the car with Tasheeya remaining inside. (Id. at 1480-83.)

Petitioner then walked across the street to the McDonald's parking lot, where he met up with Donald Johnson, who had been waiting for petitioner in the restaurant. (Id. at 1483, 1591-92, 1631.) Petitioner handed over the gun, which...

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