Corchado v. Rabideau

Decision Date19 September 2008
Docket NumberNo. 04-CV-0039(VEB).,04-CV-0039(VEB).
Citation576 F.Supp.2d 433
PartiesMarcus R. CORCHADO, Petitioner, v. Supt. Michael RABIDEAU, Respondent.
CourtU.S. District Court — Western District of New York

Michael J. Hillery, Erie County District Attorney's Office, Buffalo, NY, for Respondent.

Nelson Salvatore Torre, Buffalo, NY, for Petitioner.


VICTOR E. BIANCHINI, United States Magistrate Judge.

I. Introduction

Marcus R. Corchado ("Corchado" or "petitioner"), represented by retained counsel Nelson S. Torre, Esq., seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis of alleged constitutional infirmities in the judgment of conviction entered against him on October 1, 1998, on charges of second degree manslaughter and third degree criminal possession of a weapon. The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

I. Factual Background and Procedural History

A. Overview

Corchado was indicted on two counts of Murder in the Second Degree (New York Penal Law ("P.L.") § 125.25(1), (2)), one count of Criminal Possession of a Weapon in the Second Degree, an armed felony (P.L. § 265.03), one count of Criminal Possession of a Weapon in the Third Degree, an armed felony (P.L. § 265.02(4)), and one count of Prohibited Use of Weapons, an armed felony (P.L. § 265.35(2)). The charges stemmed from Corchado's alleged involvement in the shooting death of Mark Kosmoski ("Kosmoski" or "the victim") in the City of Buffalo on July 28, 1997.

B. The Shooting

The following factual summary has been gleaned from trial minutes, as well as petitioner's appellate brief and the prosecution's appellate brief. In the early morning hours of July 28, 1997, Kosmoski and five of his friends had left a party at a friend's house which had begun the night before. Kosmoski was the backseat passenger in his friend Frank Militello's Ford Bronco. Also present in the car were their friends Sean Farrar ("Farrar"), Ryan Murray ("Murray"), Michael Wagner ("Wagner"). They were following the sixth friend, Justin Pawlowski ("Pawlowski"), who was riding his bicycle home. After he dropped his bike, Pawlowski got into the hatch of the truck. Militello was going to drive them to the area where he previously had lived, near the Langfield Projects. Farrar previously had discussed going to another house to "get into a fight" but no one was one, so Militello continued to drive them around.

As the vehicle turned onto Edison Street, they passed a young black male they later identified as Corchado, who was walking on the street. R.531, 623, 790-91, 855-56, 977-78.1 This man was wearing baggy shorts, a white undershirt beneath a black-and-white checkered shirt, and was carrying a school bag. Corchado and the young men in the Ford Bronco did not know each other; the shooting apparently was precipitated by the exchange of dirty looks between Farrar, the front-seat passenger, and Corchado, who was walking on the sidewalk. Farrar admitted that he was looking to get into a fight that night. He claimed that Corchado was giving him an angry look, and said, "What." Farrar shouted, "What, motherfucker?" back at him. R.162-63, 533, 626, 979. Corchado shouted something back. R.535, 626-27, 979-80. Militello stopped the truck, and Farrar exited with the words, "I am going to get out and fight him." R.535, 556, 628, 860, 980-981. Militello said that he stopped the car because when Corchado "yelled something back we were probably going to get out and beat him up or whatever we were going to do to him."

According to Farrar, while he was standing in the street, Corchado yelled, "What, you want my money?". R.536, 791, 862. Corchado pulled out what appeared to be a gun and moved toward him. While standing in the street, Farrar stated that petitioner began to run at him. R.536-37, 539, 630-31, 792-93, 795, 863, 982-83. Wagner also testified that he observed the individual pull a gun out from behind his back and point it at the vehicle while holding it in a tilted manner. Farrar heard Murray, who was still in the truck, state, "he's reaching for something ... [h]e's got something in his hand ... he's got a gun." R.168. Farrar stated Corchado brought his left hand up, and he observed what appeared to be a gun pointed at him. At that point, Farrar leapt back into the vehicle and told Militello to get out of there.

As the Bronco was driving away, two or three shots rang out. After hearing a window break, Murray heard Kosmoski announce that he had been hit. R.540-41, 631-33, 799, 864-65, 985-986. Within five to ten minutes of the shooting, the victim and his friends arrived at an emergency room. R.543, 637, 799-800, 867. Kosmoski was unable to be saved; the bullet had pierced several of his vital organs. R.542, 633, 799, 865, 987.

About ten to twenty minutes after that, the police arrived, R.545, 638, 800, 990. Officer Czekalski, who initially interviewed the witnesses, testified that Farrar, the front-seat passenger, described the shooter as a "black male in his twenties, ... light-skinned, ... wearing a black and white checkered shirt, shorts, and he had a Jans Sport [sic] book bag...." R.22. Other witnesses described the shooter as a "light-skinned" "skinny" black male, about six-feet-tall, with a "little bit of facial hair." This description—"light-skinned black male with a hat on, [and wearing] black and white checkered short-sleeved shirt, blue-jean shorts[.]" R.639, 801, 869—was broadcast over the police radio at about 3:15 a.m. Lieutenant Doyle, who had arrived shortly thereafter to conduct the show-up identification, directed that the five witnesses be separated from each other so that they would not continue to talk amongst themselves.

Officers Hosking and White who were on patrol located a person appearing to match the description (i.e., Corchado) in the vicinity of Edison and Langfield, the approximate location where the shooting had occurred. R.714-15, 977-78. Corchado was walking with a friend of his, Adrian Harrison ("Harrison").2 Officers Hosking and White arrived with Corchado about five to six minutes after the broadcast.

In the meantime, medical personnel in the emergency room had informed the victim's friends that he had died. Officer Czekalski related that "[a]ll chaos broke out in the ... ER when the young lady came out from the trauma room and announced that he was gone, that he'd died." R.20. One man "start[ed] bashing his hands against the mirrors" in the men's room and another one "was pounding the walls." R.20-21. She "had to call for other cars to come up there to assist us." R.21.

C. The Show-Up Procedure

When the officers arrived with Corchado in the patrol car, the show-up procedure was conducted at the hospital. It was about 3:30 a.m., within a half hour of the victim's arrival at the hospital. R.547, 640, 801, 869, 991. According to the officers present, only "[t]wo of the individuals [i.e., Farrar and Pawlowski] had stated they possibly could identify the suspect." R.55-56. The other three individuals [i.e., Militello, Murray and Wagner] said they "were unsure whether they would be able to identify him." R.56, 57.

Lieutenant Doyle advised Officers Hosking and White that he did not want the suspect handcuffed. Corchado was asked to step out of the vehicle and stand next to the car. Corchado was flanked by two uniformed officers. Each of the victim's friends viewed petitioner separately. R.547, 801, 869, 991. Lieutenant Doyle brought out each witness one at a time. He told them that they were going to look at an individual "who was a suspect, it may be the person, it may not be the person." He told them, "If it is, to let me know; if it isn't to let me know; if they're not sure, to let me know." R.71. Corchado was about four to five feet away from the police car during each separate viewing. R.72. The witnesses were within six to ten feet from where Corchado was standing. The lighting conditions outside the hospital were "excellent".

Farrar was the first individual to view the show-up, at 3:28 a.m. He "said nothing to [Doyle]" and was "very emotional" at the time. R.74. As he saw Corchado, he said "No." R.76. Farrar then "looked at the suspect for probably twenty-five seconds," at which time he said, "Make him say something ... Make him say, `Where's your fuckin' money?'" Corchado said it "in a very low, monotone voice" and was asked to repeat it a little louder, "at which point he raised his voice a little bit." R.76. Doyle asked him, "Is it the person?" And Farrar said, "No," and walked back into the hospital. R.77. Lieutenant Doyle observed that Farrar had been drinking. R.83. Farrar remarked that Corchado was wearing the same clothes as the shooter and also had the same thick eyebrows. R. 548.

Militello was the next individual; he viewed Corchado at 3:31 a.m. Militello said, "I'm not sure but that looks like the clothing he was wearing." R.78. He viewed Corchado for about twenty seconds. Militello was very quiet; he also had a "strong odor of alcohol" about him. R.79. Although he initially told the police, "that's the kid. He's got the same clothes on," he subsequently said, "I'm not sure." He claimed that he hesitated because he believed the police were going to show him more suspects. R.642-43.

Pawlowski, who had been riding in the hatch of the truck, was next. Doyle recalled that Pawlowski looked at Corchado and simply said, "Yes." He did not say anything else before he put his head down and walked back into the hospital. (When Pawlowski was later brought to the police station to give a statement, he essentially retracted his identification at the show-up, telling police that he had identified Corchado based not on his face but on the clothing he was wearing.)

Murray was the fourth individual. He "was very quiet" and he "also had a strong odor of alcohol on his breath." R.81. H...

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