Fore v. Ercole
| Citation | 594 F.Supp.2d 281 |
| Decision Date | 12 January 2009 |
| Docket Number | No. 07-CV-1947 (JFB).,07-CV-1947 (JFB). |
| Parties | LePerry FORE, Petitioner, v. Robert ERCOLE, Superintendent, Green Haven Correctional Facility, Respondent. |
| Court | U.S. District Court — Eastern District of New York |
LePerry Fore, pro se.
Kathleen M. Rice, District Attorney of Nassau County, by Tammy J. Smiley, Esq., Judith R. Sternberg, Esq., Assistant District Attorneys, Mineola, NY, for Respondent.
LePerry Fore (hereinafter, "Fore" or "petitioner") petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in state court.
Petitioner was convicted in a judgment rendered on October 9, 2002, following a jury trial, in the Supreme Court of New York, Nassau County. Petitioner was convicted of Murder in the Second Degree (N.Y. Penal Law § 125.25[2]), Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03[2]), and Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02[4]). He was sentenced to concurrent terms of imprisonment, the longest of which was an indeterminate term of twenty-two years to life.
Petitioner challenges his conviction on the following grounds: (1) the prosecution did not provide legally sufficient evidence to prove petitioner's guilt of a deliberate indifference murder beyond a reasonable doubt, thus denying him due process of law; (2) petitioner was denied effective assistance of appellate counsel, because his appellate counsel did not address the ineffective assistance of petitioner's trial counsel for failing to preserve the former issue.
For the reasons set forth below, petitioner's request for a writ of habeas corpus is denied in its entirety. First, his insufficiency of the evidence claim is procedurally barred from habeas review. Second, all of his claims, including the insufficiency claim, are without merit.
The following facts are adduced from the instant petition and the underlying record.
The prosecution's case consisted of petitioner's oral and written account following his arrest, as well as testimony by witnesses on the scene at the time of the incident and various medical and law enforcement personnel.1
Petitioner and Jeffrey Truesdale (hereinafter, "Truesdale" or "decedent") had been good friends for a number of years. (Tr. 190.) In April 2000, decedent asked petitioner to watch his two pit bull dogs because his mother, whom he lived with, was looking for a new place to live. (Tr. 191, 356.) One of decedent's dogs died in May 2000 from unknown causes and the second dog ("Bruno") died on June 19, 2000. (Tr. 342-43, 356-57.) Petitioner's dog was still alive. (Id.)
On the day Bruno died, petitioner put Bruno's body in a plastic bag in the backyard and drove to his friend Sumar Robinson's house later that day. (Tr. 342, 356-57.) Petitioner stayed at Robinson's house for a while but when he left the house, decedent pulled up in a white jeep and said that he wanted to see the body of his dog, Bruno. (Tr. 342-43, 357.) Petitioner got into decedent's jeep—the jeep was also occupied by a passenger named Hamilton Croft—and together the three of them drove back to petitioner's house to see the dead dog. (Tr. 343, 357.) Petitioner did not accompany decedent into the backyard to see Bruno's body and decedent returned to the front of the house, passed by petitioner without saying a word and drove off. (Id.) Petitioner then had to walk back to Robinson's house to get his car. (Id.) When petitioner got to his car, decedent pulled up to him and said "I should get a gun and shoot you and the stupid dog, your stupid dog," and then drove off. (Id.) Petitioner then got into his car and made a quick u-turn to drive home. (Tr. 343, 357-58.) After a short while, petitioner noticed decedent following him. (Id.)
Petitioner parked in front of his house and grabbed a black automatic handgun from under his seat. (Tr. 343, 358.) Petitioner's house is located on a residential street and at this time, residents were outside talking in groups. (Tr. 197, 223-24, 254.) Petitioner got out of his car and decedent pulled up next to him along the driver side door, partially blocking him from getting to his house. (Tr. 175, 198, 343, 358.) Petitioner looked in the open passenger side window, saw decedent "reaching for something," thought it was a gun, closed his eyes, "flinched," and fired three to four shots at decedent. (Tr. 343-44, 358.) Petitioner did not actually see a gun or any other weapon, but thought decedent was reaching for a gun because he knew decedent had carried a gun in the past. (Tr. 344.)
No gun was found on decedent's person or in his jeep. (Tr. 371.) The prosecution offered two witnesses who testified that the jeep was parked for three to five minutes and they saw the petitioner exit the jeep after the shots were fired. (Tr. 222-24, 241, 246-50, 261.) Moreover, shell casings were found inside the jeep. (Tr. 199-202, 291-93.) On cross examination, one of the witnesses stated that he never actually saw the petitioner in the jeep, and the other offered conflicting testimony as to the description and actions of the petitioner after the shots were fired. (Tr. 241-42, 254-61.)
Petitioner did not check whether any of the shots had hit the decedent or if he was dead or alive; rather, he fled from the scene, running through his house, a park, and eventually to a relative's home in North Carolina. (Tr. 344-45, 358-59.) On May 23, 2001, petitioner was arrested in Newark, New Jersey. (Tr. 333-37, 359.)
The four shots fired by petitioner struck the decedent in both arms and his groin. (Tr. 323-31, 380-87.) One of the shots that hit the decedent in his upper right arm entered his chest, severed his spinal column, and paralyzed him from the waist down. (Tr. 330, 383-87.) Decedent was taken to the hospital where he remained in intensive care for a month before succumbing to his injuries. (Tr. 331, 391-92.)
Petitioner presented a justification defense. The petitioner's case consisted of petitioner's testimony, as well as the testimony of his sister. The major distinction between the petitioner's version of events and the prosecution's version was that petitioner argued that he was afraid for his life and was outside the vehicle when the shooting occurred.
Petitioner's sister testified that she was home when the shooting took place outside the house on June 19, 2000, and that she heard Truesdale threaten to kill the petitioner and then heard gunshots. (Tr. 419-20.) Petitioner testified that he was scared when decedent followed him home, that he parked his car and tried to get to his house, but was cut off by the decedent's vehicle, and thus was outside of the jeep when he fired the shots fearing for his life. (Tr. 456-60.) Petitioner also testified that he was afraid that decedent was going to shoot him and that is why he shot the decedent first, but he did not think decedent was going to die when he fired the shots, nor did he intend to kill him. (Tr. 456, 463-64.) On cross-examination, petitioner stated that he never tried to run to his house to get away from decedent and that he aimed in the direction of decedent when he fired the gun. (Tr. 490, 499.)
Upon completion of the People's case, petitioner's counsel moved for a trial order of dismissal on the ground that the People had not made out a prima facie case with respect to the counts in the indictment. (Tr. 415-16.) The court denied petitioner's application. (Id.) At the close of all the evidence, petitioner's counsel renewed his application for a trial order of dismissal. (Tr. 539-40.) Counsel argued that the People had failed to prove a prima facie case, and had failed to prove the case beyond a reasonable doubt. (Id.) The court again denied petitioner's application. (Id.) Upon the jury finding petitioner guilty of all charges, petitioner's counsel made a motion to set aside the verdict as being against the weight of the evidence, which was also denied by the court. (Tr. 661.) On December 11, 2002, petitioner's counsel renewed his motion to set aside the verdict as being against the weight of the evidence, which was denied by the court. (S. 2-3).
On October 9, 2002, following a jury trial, petitioner was convicted of one count of Murder in the Second Degree (N.Y. Penal Law § 125.25(2)), one count of Criminal Possession of a Weapon in the Second Degree for a depraved indifference murder (N.Y. Penal Law § 265.03(2)), and one count of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02(4)). The trial judge sentenced petitioner to an indeterminate term of imprisonment of twenty-two years to life for Murder in the Second Degree. With respect to Criminal Possession of a Weapon in the Second Degree, petitioner was sentenced to a determinate sentence of fifteen years' imprisonment. Finally, with respect to Criminal Possession of a Weapon in the Third Degree, petitioner was sentenced to a determinate sentence of seven years' imprisonment. The trial judge ordered that all of the sentences were to run concurrently and further imposed a civil judgment against petitioner for restitution in the amount of $98,420.53, with a mandatory surcharge of $200, and a crime victims' assistance fee of $10.
On March 18, 2004, petitioner filed a pro se motion to vacate the judgment against him pursuant to N.Y. C.P.L. § 440.30, in which he alleged the following: (1) trial counsel was ineffective for: (a) his failure to cross examine petitioner about his knowledge of violent acts of the decedent; (b) his failure to ask for a continuance to properly investigate a witness; (c) his failure to request a missing witness charge; and (d) his failure to ask that prior grand jury...
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