Gibbs v. Donnelly
| Decision Date | 07 December 2009 |
| Docket Number | No. 03-CV-361.,03-CV-361. |
| Citation | 673 F.Supp.2d 121 |
| Parties | Dominic GIBBS, Petitioner, v. Edward DONNELLY, Superintendent, Respondent. |
| Court | U.S. District Court — Western District of New York |
Dominic Gibbs, Alden, NY, pro se.
Loretta S. Courtney, Rochester, NY, for Respondent.
This case was referred to Magistrate Judge Victor E. Bianchini, pursuant to 28 U.S.C. § 636(b)(1). Petitioner filed a petition for a writ of habeas corpus. On September 30, 2009, Magistrate Judge Bianchini filed a Report and Recommendation, recommending that the petition be dismissed.
Petitioner filed objections to the Report and Recommendation on October 16, 2009 and respondent filed a response on November 2, 2009.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of the Report and Recommendation, and after reviewing the submissions, the Court adopts the proposed findings of the Report and Recommendation.
As part of its adoption of the Report and Recommendation, the Court hereby issues a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) for the reasons stated in the Report and Recommendation. The certificate of appealability is limited to whether the trial court's denial of a jury instruction on self-defense or justification amounted to a violation of petitioner's federal constitutional rights. To assist petitioner with an appeal on this issue, the Court hereby appoints the Federal Public Defender for the Western District of New York pursuant to 18 U.S.C. § 3006.
Accordingly, for the reasons set forth in Magistrate Judge Bianchini's Report and Recommendation, petitioner's petition for a writ of habeas corpus is dismissed.
The Clerk of Court shall take all steps necessary to close the case.
SO ORDERED.
REPORT AND RECOMMENDATION
Pro se petitioner Dominic Gibbs ("Gibbs" or "Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction one count of second degree (intentional) murder (N.Y. Penal Law §§ 20.00, 125.25(1)). Gibbs was jointly indicted with Pete Nicholas ("Nicholas" or "co-defendant"), but the two men were tried separately.
Gibbs now asserts that he is entitled to habeas relief based upon claims stemming from (1) trial counsel's alleged ineffectiveness, (2) misconduct by the prosecutor, (3) error by the trial court in denying a justification (self-defense) jury charge, and (4) legal and factual insufficiency of the verdict. This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1) for the issuance of a report and recommendation regarding the disposition of Gibbs' petition. For the reasons that follow, I recommend that the petition be dismissed.
Shortly after 2:00 a.m. on July 12, 1996, Mary Ellen Elphick ("Elphick") and her sister were driving to their home in the Town of Clarkson after hanging out with friends at a bar0. in the Town of Brockport in Monroe County. As they were heading north on Redman Road in Clarkson, the women came upon a car (1987 4-door blue Toyota Camry) that was stopped in the northbound lane of the road with its hazard lights blinking. T. 448.1 As soon as she saw the hazard lights, Elphick flicked the high-beams of their pick-up truck down. Almost immediately, Elphick recalled, the Toyota took off "very fast and went into the other lane, and then it went slowly, like from one lane to another, and just sped up and went faster and faster between the lanes." T. 448, 469. Elphick also observed a foot protruding from an open passenger-side door of the Toyota as it was driving away. T. 450, 470. Elphick stated that the car did not get very far before it veered across the road into a ditch. As the Elphicks passed the Toyota, they could not see inside the vehicle due to the cloud of dust or smoke that was rising from the ditch. T. 453. Elphick stated that they did not see anyone outside the car. T. 472.
Elphick testified that they did not get out of their vehicle but rather proceeded to the nearest house and stopped there to see if they could summon assistance. Elphick indicated that they thought the driver might be drunk. T. 470-71. As they parked and exited their vehicle, Elphick stated, they "heard some arguments and yelling and screaming coming from the vehicle and then [they] heard a pop...." T. 454. At that point, the Elphicks were let into the house by the resident of the house which they had approached. Elphick indicated that "[t]here was at least two voices," which were male and sounded "very angry." T. 455. There was only one "pop" which happened "after the argument." T. 456, 474.
Once inside, Elphick called 911; it was 2:18 a.m. at that time. T. 456. As they were waiting for the police to arrived, they looked outside and "could see the lights of the car moving and flickering like they were trying to get out." T. 457. It appeared to Elphick "as if the car was rocking back and forth...." T. 457. According to Elphick, the police arrived about five to seven minutes later. T. 460-61.
Responding to the 911 call were deputy sheriffs from the Monroe County Sheriffs Department and troopers from the New York State Police. First on the scene was Deputy Mark Nevelezer ("Dep. Nevelezer"), who arrived at 2:26 a.m. See T. 480-523 (direct); 524-42 (cross). Dep. Nevelezer observed that all of the Camry's doors were closed except for the front driver's side door, which was slightly ajar; no one was inside the vehicle. Dep. Nevelezer found that the disabled Toyota Camry's vehicle's registration sticker had been removed from the front windshield and torn into pieces and strewn on the ground next to the driver's side of the Toyota. It appeared that the sticker had been scraped off the windshield of the car. E.g., T. 922-24. There was blood on the gearshift between the two front seats, as well as blood on the driver's side door and on the top metal frame area, just above the window. T. 926. The police found a bag and a store box in the trunk, both of which had blood on them. T. 927. There were no blood stains on the passenger side, either in the front seat or back seat area. T. 960. The car had damage to the right front wheel and its rear license plate was missing. Its wheels were embedded in the soil on the west shoulder of the road, and the car was facing northwest.
Proceeding about 20 feet north of the vehicle, Dep. Nevelezer came upon a male in a semi-prone position, at a slight angle to the roadway with his head towards the vehicle. The man was not verbally responsive and exhibited no signs of respiration. Blood was coming out of the man's left ear, and there was blood on his hands, the top of his head, parts of his hand and arm. Dep. Nevelezer observed that part of the left ear was missing. There was a "Fossil" brand men's watch lying next to the body. T. 976.
Troopers Chris Burns ("Trooper Burnes") and Donald Vlack ("Trooper Vlack") conducted a "roving patrol" of the area and, at 5:12 a.m., on Drake Road, they observed two black males walking south on the east shoulder. Drake Road runs parallel to Redmond Road; the men were seen in the vicinity of 2012 Drake Road, about 1.5 to 2.0 miles due east from where the disabled Toyota and the deceased victim were found. A densely wooded area separates Drake Road from Redmond Road.
Burns and Vlack exited their police cruiser without guns drawn. According to their observations, Gibbs and Nicholas were water-soaked from head to toe, and their clothing was disheveled and very dirty, with leaves and burdocks affixed to them. Gibbs and Nicholas were then taken into custody.
When Dep. Nevelezer arrived at about 5:30 a.m., he observed that Gibbs' clothing was "soiled, wet and appeared to have grass' clippings ... [and] leafy materials on his pants." T. 510. Each man had burdocks all over their arms and heads. Nicholas had a pair of pants wrapped around his head; the pants had spots of a red fluid on them. See T. 680-86.2
Upon being asked who they were, where they were going, and where they were coming from, Gibbs and Nicholas pointed towards the woods and told the police that they had been at a "crack house" in the vicinity. T. 693. However, they could not give an address. (The closest house on Drake Road was 3/4 of a mile away from where they had been stopped.) Gibbs and Nicholas said that had been riding a motorcycle borrowed from a "crack head", but it had broken down, forcing them to walk back to the city. Gibbs and Nicholas did not know the name of the "crack head." Nor were they able to provide an address for the "crack house."
Trooper Burns then asked the men for identification, whereupon Nicholas began patting his clothing as if he were feeling for his wallet. As Nicholas, for the second time, moved his hands towards the small of his back, the troopers suspected that he might be reaching for a weapon. At that time, they drew their guns and directed both men to kneel down with their hands up. T. 697. During a pat-search of Gibbs, Trooper Vlack found a knife in a sheath attached to the front of his pants' waistband. T. 699. There was a red substance on the blade,3 and the troopers noticed that Gibbs had a fresh cut on his right hand. From Nicholas, the troopers recovered a set of car keys which were later determined to belong to the Toyota Camry. Gibbs' wallet contained $420 in twenty-dollar-bills, and a "flashlight card" T. 971.
About twenty feet into the wooded area, the police found a leather jacket, and a shopping bag containing an assortment of clothing with the store tags still attached, e.g., a Mickey Mouse shirt and a shoe box with new Adidas sneakers. T. 1046. In a second bag, there was more clothing, and a...
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