Crews v. Herbert

• Citation: 586 F.Supp.2d 108
• Decision Date: 18 November 2008
• Docket Number: No. 02-CV-202A.,02-CV-202A.
• Parties: Jammian CREWS, Plaintiff, v. Victor HERBERT, et al., Defendants.
• Court: U.S. District Court — Western District of New York

586 F.Supp.2d 108

Jammian CREWS, Plaintiff, v. Victor HERBERT, et al., Defendants.

No. 02-CV-202A.

United States District Court, W.D. New York.

November 18, 2008.

COPYRIGHT MATERIAL OMITTED

Jammian Crews, Dannemora, NY, pro se.

Shawn P. Hennessy, Erie County District Attorney's Office, Buffalo, NY, for Defendants.

ORDER

RICHARD J. ARCARA, Chief Judge.

The above-referenced case was referred to Magistrate Judge Victor E. Bianchini, pursuant to 28 U.S.C. § 636(b)(1)(B). On October 24, 2008, Magistrate Judge Bianchini filed a Report and Recommendation, recommending that the petition for a writ of habeas corpus be denied and that no Certificate of Appealability should issue with respect to any of plaintiffs claims.

The Court has carefully reviewed the Report and Recommendation, the record in this case, and the pleadings and materials submitted by the parties, and no objections having been timely filed, it is hereby

ORDERED, that pursuant to 28 U.S.C. § 636(b)(1), and for the reasons set forth in Magistrate Judge Bianchini's Report and Recommendation, the petition for a writ of habeas corpus is denied and no Certificate of Appealability should issue with respect to any of plaintiffs claims.

The Clerk of Court shall take all steps necessary to close the case.

SO ORDERED.

REPORT AND RECOMMENDATION

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. INTRODUCTION

Petitioner Jammian Crews ("Crews" or "Petitioner"), proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state court conviction.¹ By Erie County Indictment No. 97-1825-001, Crews was charged with one count each of second degree (intentional) murder (New York Penal Law ("P.L.") § 125.25(1)), second degree (depraved indifference) murder (P.L. § 125.25(2)), attempted second degree (intentional) murder (P.L. §§ 110.00, 125.25(1)), first degree assault with a dangerous weapon (P.L. § 120.10(1)), first degree assault (P.L. § 120.10(3)), fourth degree criminal possession of a weapon (P.L. § 265.01(2)), and third degree criminal sale of a controlled substance (P.L. § 220.39(1)). Following a jury trial, Crews was convicted of second degree (depraved indifference) murder, attempted murder, first degree assault, and criminal possession of a weapon. He was sentenced to an indeterminate term of 25 years to life on the depraved indifference murder conviction, concurrent indeterminate terms of 12½ to 25 years for the attempted murder and assault convictions, and a concurrent determinate term of 1 year for the criminal possession conviction.

Crews' conviction was unanimously affirmed on direct appeal by the Appellate Division, Fourth Department, of New York State Supreme Court. People v. Crews, 281 A.D.2d 904, 722 N.Y.S.2d 204 (App. Div. 4th Dept.2001). Leave to appeal was denied by the New York Court of Appeals. People v. Crews, 96 N.Y.2d 861, 730 N.Y.S.2d 35, 754 N.E.2d 1118 (N.Y.2001). This habeas petition followed, in which Crews raises the following grounds for habeas relief: (1) he was denied his right to a fair trial because the trial court refused his request to issue a missing witness jury instruction; (2) he was denied his right to present a defense because he was precluded from introducing his "NYSIIS" or "rap sheet", which indicated his height at the time of the arrest; and (3) the first degree assault conviction must be reversed because that charge is a lesser concurrent offense of attempted second degree murder. All three of these contentions were raised on direct appeal and rejected on the merits.

Crews subsequently sent a letter to the Clerk of Court titled "Writ Held In Abeyance Requested." See Docket No. 9. Crews stated that "[a]t this time ... there has been some changes in the Law with respect to my case and some claims that need to be addressed by the Lower Court and if by chance, be exhausted in order to be heard in This Court." Id. Crews stated, "I am requesting for an extension of time and/or my Writ of Habeas Corpus to be held in abeyance until the claims I am addressing to the Lower State Court can be resolved." Id. In this letter, Crews provided no further details as to the claims he intended to present to the state court and did not indicate whether he had commenced exhaustion proceedings in state court.

This Court issued an Order on denying Crews' motion for a stay without prejudice with leave to re-file. See Docket No. 12. The Court noted that Crews had only sought to have his petition stayed after there was a change in the law that he believed was favorable to him, and presumed that he was referring to the shift in New York state's jurisprudence regarding depraved indifference murder. Since Crews' conviction, there have been significant developments in New York regarding the law of depraved indifference murder and the legal sufficiency of evidence supporting such a claim. See, e.g., People v. Feingold, 7 N.Y.3d 288, 819 N.Y.S.2d 691, 852 N.E.2d 1163 (N.Y.2006). The Court explained that to the extent that he intends to assert any claims based this jurisprudential shift, Crews could not fulfill the Rhines² criteria for granting a stay because, among other things, any such claims based on Feingold were barred federal habeas review based on specific finding by the New York Court of Appeals that the change in law cannot be applied retroactively. Because Crews is proceeding pro se and because his letter to the Court was unclear as to whether there are claims in addition to those based on the change in law regarding depraved indifference murder, the Court gave Crews the opportunity to re-file his motion for a stay if there were other claims that he sought to exhaust in the state courts. The Court instructed petitioner wished to re-file his motion for a stay, he was obligated to do so within thirty (30) days of his receipt of the Court's Order. See Docket No. 12. More than thirty days has passed, and Crews has failed to respond or seek an extension of time to do so. The Court finds that Crews' inaction manifests an intent to abandon his stay request. Accordingly, the Court will proceed to consider the merits of Crews' original petition.

For the reasons that follow, the Court recommends that the petition be dismissed.

II. BACKGROUND

Late in the evening on August 11, 1997, Stefan Krug ("Krug") was walking down the street when his neighbor, Paul Dick ("Dick") drove by in his truck. T.158-59.³ They stopped to talk, and Dick asked Krug, a mechanic, to listen to a noise that was coming from Dick's truck. T.158-160. Krug said he would do so, provided that Dick would give him a ride to 24 Gibson Street. Krug testified that he wanted to go to Gibson Street to by crack cocaine from Crews, whom he had been purchasing it from on a near-daily basis during the summer of 1997. T.160-61.

Unfortunately, Dick agreed, and drove his truck to 24 Gibson Street, where they found Crews sitting on the porch in the doorway. T.163. Krug walked up to the house while Dick waited for him in the truck. T.164. Krug was going to attempt to get something for next-to-nothing, and handed Crews two $1-bills whose corners had been replaced by corners from a $10-bill and a $20-bill. T.162-63. When Crews saw that the money was phoney, he looked at Krug and said, "Get the fuck out of here!" T.165.

Krug retreated to the truck and as he got in, he heard Dick exclaim, "That man has a gun!" T.166. Krug looked out the passenger-side window and saw Crews standing about 4 to 7 feet away, pointing a shotgun at the passenger-side window of the truck. T.166-67. Just as Krug yelled, "Go!" to Dick, Crews opened fire. Shells from his shotgun shattered the window and struck Krug in his arm and Dick in the abdomen. T.168. Krug immediately heard Dick say, "I think I might be hit." T.168.

Krug attempted to take control of the truck, but because of the gunshot wound to his arm, he was having difficulty. He ended up maneuvering the truck by steering with his right hand and working the accelerator with his left foot. T.168. Krug drove away from Petitioner's house but did not get far, crashing the truck into a concrete brick in a field. T.168-69. The police officers that had been chasing after the truck called for emergency assistance and both Krug and Dick were taken to the hospital.

Dick died of internal injuries and extensive bleeding from the large, flat shotgun pellets that pierced his abdomen. T.299. Krug sustained severe injuries to his left arm; his bones were shattered and it was necessary for the surgeons to use metal bars, screws, and skin grafts to treat the injuries. T.173. As a result of the shotgun wound, Krug's ability to use that arm is markedly reduced. He has permanent nerve damage and the only sensation in the arm is a constant, arthritic ache. T.174.

After the incident, Crews confessed what he had done to several individuals. Aeriell Bush, who also lived at 24 Gibson Street, was awakened by the shotgun blast. T.212, 215. When she went to see what the commotion was about, Bush saw three individuals running through her house; one of them was Petitioner, who told her that "somebody gave him some fake money and he shot him." T.214-15. Bush also overheard Petitioner talking with her brother, Elizah Melton. According to Bush, Petitioner told Melton that "the man was trying to give him some fake money and run off ... [s]o, he shot him." T.216. Melton testified that Petitioner said, "I shot somebody" but only suggested that the reason for the shooting was that "somebody gave him some fake money." T.125.

DeMarr Johnson, who also lived at 24 Gibson Street, was the next person to whom Petitioner confessed. Johnson, Bush's brother, had just lain down to go to sleep when he heard the gunshot. T.143-45. Johnson jumped up and went to the kitchen, where he saw Petitioner come in through the front door alone. T.145-46. According to Johnson, Petitioner said that "he just shot somebody, they gave him false money." T.147...