Holmes v. Ricks

• Court: U.S. District Court — Western District of New York
• Writing for the Court: Bianchini
• Citation: Holmes v. Ricks, 378 F.Supp.2d 171 (W.D. N.Y. 2004)
• Decision Date: 20 December 2004
• Docket Number: No. 00-CV-6523.,00-CV-6523.
• Parties: Anthony HOLMES, Petitioner, v. Thomas RICKS, Respondent.

378 F.Supp.2d 171

Anthony HOLMES, Petitioner, v. Thomas RICKS, Respondent.

No. 00-CV-6523.

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

December 20, 2004.

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Anthony Holmes, Auburn, NY, pro se.

John R. Trice, Chemung County District Attorney, Elmira, NY, for Defendant.

DECISION AND ORDER

BIANCHINI, United States Magistrate Judge.

INTRODUCTION

Anthony Holmes ("Holmes") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Chemung County Court on one count of attempted second degree murder and one count of second degree criminal possession of a weapon. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

The conviction at issue in the instant habeas petition arose from the shooting of security guard Quentin Giles ("Giles") at the Arnot Mall in the Town of Big Flats on October 17, 1997. Holmes was arrested in connection with the incident and charged with attempted murder in the second degree and criminal possession of a weapon in the second degree.

Holmes was tried before a jury in Chemung County Court (Buckley, J.). The proof at trial established that on October 17, Deputies Donahue ("Donahue") and Argetsinger ("Argetsinger") and Lieutenant Decker ("Decker") of the City of Elmira Police Department were investigating a robbery that had occurred earlier that day on the south side of the city. Upon learning that the robbery suspect had taken a cab to the Arnot Mall, the officers drove to the mall where they were informed by security guard Giles that an individual matching the suspect's description was in the customer service area of Kaufmann's department store. Donahue, Argetsinger, Decker, and Giles fanned out in pursuit of the suspect.

Donahue was the first to encounter the suspect, who was later identified as Holmes. Donahue ordered him to halt and place his hands above his head. In response, Holmes turned to face Donahue, raised his hands to shoulder-level, squatted down into a semi-crouch, and darted off. As Donahue pursued Holmes down an aisle, he observed Holmes grab at the waistband of his pants with his left hand at least two or three times and finally remove a semi-automatic handgun. Donahue saw Holmes extend his left arm straight out at a forty-five-degree angle and continue to run away from Donahue

Meanwhile, Giles was standing at the far end of the same aisle down which Holmes was running. When the unarmed Giles observed Holmes running at him with a gun, Giles crouched down in an attempt to get away from Holmes. However, Holmes continued to run at Giles while pointing the gun at Giles's head. As Holmes came alongside Giles, Holmes fired the gun at Giles at point-blank range. Giles fell to the floor as a bullet creased his forehead and entered his right thigh.

Apparently, Holmes's gun fell apart after he fired it; the slide, the pistol sight, and two springs from a .22 caliber pistol later were recovered in the vicinity of the shooting. As he fled from Donahue, Holmes pointed the remains of the gun at Argetsinger who fired a shot at him. Holmes, however, was able to elude the police and contact some friends — Antoinette Collier ("Collier"), Eboni Cooke ("Cooke"), and April Fullwood ("Fullwood") — who agreed to come pick him up at the mall. When they arrived at the mall, Holmes jumped out from behind some bushes and hopped into the car. Collier recounted that Holmes informed them that he "shot a security guard officer at the mall ... [b]ecause he had robbed somebody earlier." T.143.¹ Cooke provided similar testimony. T.159. Fullwood testified that she heard Holmes say that he shot a security guard, but she did not hear him give a reason for the shooting. T.185-91. The witnesses stated that they were told by the police that they could be charged as "accessories to murder."

Holmes did not testify in his own behalf at trial. The defense theory was that Holmes fired a downward shot at a forty-five-degree angle at Giles because he believed that Giles was about to lunge at him. Counsel argued that the superficiality of the head wound showed that Holmes did not have the requisite intent to kill to support an attempted murder conviction. The defense did not dispute that Giles received gun-powder marks on his forehead.

The trial court instructed the jury on attempted second degree assault and third degree assault as lesser included offenses. The jury returned a verdict convicting Holmes of both counts of the indictment. Holmes was sentenced to twelve and one-half to twenty-five years on the charge of attempted murder and seven and one-half to fifteen years on the weapons charge, both sentences to run concurrently.

Through new counsel, Holmes appealed his conviction. The Appellate Division, Third Department, of New York State Supreme Court unanimously affirmed the conviction on April 29, 1999. People v. Holmes, 260 A.D.2d 942, 690 N.Y.S.2d 292 (3d Dep't 1999). The New York Court of Appeals denied leave to appeal on August 30, 1999. People v. Holmes, 93 N.Y.2d 1020, 697 N.Y.S.2d 578, 719 N.E.2d 939 (1999). Holmes attacked the effectiveness of his appellate counsel by means of an application for a writ of error coram nobis which was denied by the Appellate Division on September 21, 2000. Holmes also moved to vacate the judgment of conviction via a motion pursuant to Section 440.10 of the New York Criminal Procedure Law; this application was denied by the trial court on May 17, 2002.

Holmes filed a habeas petition in this Court on October 30, 2000, in which he raised several claims all premised upon his appellate counsel's alleged ineffectiveness. See Petition at 5 (Docket # 1). After obtaining a stay of the petition in order to exhaust certain claims in state court, Holmes submitted a pleading in which he asked that his petition be amended to include claims from his State court appellate brief. See Docket # 16. Based upon a review of Holmes's papers, the Court concludes that Holmes has raised the following grounds for habeas relief: (1) the evidence was insufficient to prove intent to kill; (2) the conviction was against the weight of the evidence; (3) the trial court erroneously failed to conduct a Ventimiglia hearing; (4) the sentence is harsh and excessive; (5) the prosecutor's failure to turn over the ballistics analysis report deprived defendant of a fair trial; and (6) appellate counsel was ineffective. Respondent concedes that Holmes has exhausted all of his claims, and the Court finds that the claims are properly before it on habeas review. See 28 U.S.C. § 2254(b)(1).

DISCUSSION

Standard of Review

Because the filing of this petition postdates the enactment of the Anti-terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), AEDPA's revisions of 28 U.S.C. § 2254 govern this proceeding. See Williams v. Taylor, 529 U.S. 362, 402, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). When Congress enacted AEDPA, it "significantly curtailed the power of federal courts to grant the habeas petitions of state prisoners." Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir.2001) (citing Williams, 529 U.S. at 399, 120 S.Ct. 1495). A Federal court may not grant a habeas petition on a claim that was adjudicated on the merits in State court unless that adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1), (2).

A State court decision is "contrary to" established Federal law if the State court either "applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent." Williams, 529 U.S. at 405-06, 120 S.Ct. 1495. A State court decision is an "unreasonable application" of Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular case." Id. at 407-08, 120 S.Ct. 1495.

Merits of the Petition

1. Insufficiency of the evidence

Holmes claims that the evidence of intent to commit murder was legally insufficient to support the conviction.² He contends that the evidence of intent was circumstantial and that it was "equally possible that there was no intent to kill." On direct appeal, the Appellate Division disagreed: "It has repeatedly been held that evidence that a person `fired a shot at close range into [another's] head [is] sufficient to support the inference that [the person] intended to kill the victim.'" People v. Holmes, 260 A.D.2d at 943, 690 N.Y.S.2d 292 (citations omitted; alteration in original).

On Federal habeas review, the Court's task is narrowly circumscribed: it is limited to determining whether, after viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact" could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); accord Dixon v. Miller, 293 F.3d 74, 81 (2d Cir.2002). Thus, a habeas petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir.1997). On habeas review, the court is not permitted to "`make its own subjective determination of guilt or innocence.'" Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir.1999) (quoting Herrera v. Collins, 506 U.S. 390, 402, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993)). The court's "inquiry does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational...