Parsons v. Artus

Decision Date21 May 2020
Docket Number06-CV-06462-CJS
PartiesANDRE PARSONS, Sr., Petitioner, v. DALE ARTUS, Respondent.
CourtU.S. District Court — Western District of New York

Andre Parsons, Sr. ("Parsons" or "Petitioner"), proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his detention in Respondent's custody. Parsons is presently incarcerated pursuant to a judgment entered against him on May 8, 2002, in New York State, Monroe County Court (Geraci, J.), following a jury verdict convicting him of intentional murder and related charges. For the reasons discussed herein, the request for a writ of a habeas corpus is denied.

I. Petitioner's Trial

Parsons was indicted by a Monroe County grand jury on four counts related to the on August 13, 2001, shooting death of David Wright ("Wright"), a/k/a, "Devine": second-degree (intentional) murder (N.Y. Penal Law § 125.25(1)); second-degree (depraved indifference) murder (id. § 125.25(2)); second-degree criminal possession of a weapon (id. § 265.03(2)); and third-degree criminal possession of a weapon (id. § 265.02(4)). His jury trial commenced on April 1, 2002, in Monroe County Court before Judge Geraci ("trial court") and a jury.

A. The People's Case
1. Eyewitness Lamar Hall

Lamar Hall ("Hall") testified that he was 15 years old in August of 2001 and lived at 26 Fulton Avenue in Rochester. He had been friends with Wright for two to three years. Tr.342-44, 374.1 Hall acknowledged that he had been selling cocaine for two months on Fulton Avenue with Wright; both of them worked for a man named "L-Bug." Tr.371-72, 374-77, 399-401.

On August 13, 2001, at around 11:00 p.m., Hall, Wright, and a younger boy named Steven were talking together on the porch of a house at 126 Fulton Avenue. T.346-47, 408. Hall saw Parsons, a/k/a, "Dre," across the street at 125 Fulton Avenue. Hall knew Parsons from seeing him around the neighborhood a number of times in the past two months. Tr.344-45, 347, 401-04. At some point, Wright walked across the street to 125 Fulton and engaged in a heated and lengthy argument with Parsons. Tr.347, 351, 409-10, 416-17. Hall testified that Wright and Parsons were "in each other's faces" but not touching; Parsons "kept saying, 'Go home to your mama, go home to your mama.'" Tr.348-49.

Hall walked over and told Wright, "Don't fight. Don't fight," when "all of a sudden" Parsons reached behind his back, pulled out a black semi-automatic handgun and said, "Don't step any closer." Tr.350-51. Hall related that Parsons "cocked" the gun and pointed it at Wright's chest, to which Wright responded, "Yeah, put your gun down. Fight headup," meaning that Wright wanted Parsons to fight with his fists. Tr.350-52, 415, 430-33, 438-39. Hall said he kept pleading with Wright to retreat; finally, Wright walked back across the street with Hall to the nearby intersection of Fulton Avenue and Clarence Park. Tr.351-53, 415, 418-19, 439.

At that point, Hall testified, Parsons jumped off the porch and said, "Say something else about my girl. Say something else about my girl." Tr.353-54, 416-17, 419-21. Hall indicated that Wright turned around and faced Parsons, who fired two shots at Wright. Tr.354, 421. Wright "charged at" Parsons, and they started "grabbing each other." Tr.354, 422-27. Hall testified that Parsons pulled away from Wright, started "swinging the gun," and fired more shots at Wright, who fell to the ground. Tr.354, 427, 429-30.

Hall testified that while Wright was lying in the middle of the road, Parsons "got over" him and fired two more shots. Tr.354-56, 365, 430. Hall stated that one of the bullets hit the ground; he "guessed" that the other bullet "must have hit" Wright, who was "screaming." Tr.356-57. Hall indicated that Parsons "emptied the clip," and the gun "clicked" when he ran out of bullets. Tr.357, 430, 433. According to Hall, Parsons fired about seven shots at Wright. Tr.362.

Hall testified that Parsons ran through the backyard at 124 Fulton, heading towards Lake Avenue. Tr.357, 433.

Hall went over to check on Wright and observed four shells on the ground by Wright's body. Tr.357, 362. He then ran to 126 Fulton where Latacha Harris ("Latacha"), Wright's girlfriend, lived. He asked her to call 911 and went upstairs and got Wright a pillow and a towel. Tr.357-58. Hall stated that the police arrived about five to seven minutes later, and he told them everything he knew. Tr.358, 434.

2. Eyewitness Latacha Harris

Latacha testified that she was 25 years-old, lived in the upstairs apartment at 126 Fulton Avenue, and had known Wright as just a friend for about two and a half months. Tr. 453-55, 466, 490, 499. Latacha testified she also knew Parsons, who was known as "Dre" or "Prince," from seeing him numerous times on Fulton Avenue. Tr.454-55, 479.

Around 11:00 p.m. on August 13, 2001, Latacha related that she was standing by the open window of her upstairs apartment with her sister, Deidre. She admitted consuming about 40 ounces of beer and 12 ounces of Hennessy liquor that evening; she was not "intoxicated" but was experiencing "tipsiness." Tr.455, 479, 483-84, 488-89. Latacha testified she looked across the street to 125 Fulton Avenue and saw Parsons and Wright arguing but could not hear what they were saying. Tr.455-56, 468-69, 484. Latacha said that Parsons was on the porch, Wright was on the sidewalk, and Hall was standing near Wright. Tr.456, 484.

Latacha recounted that at some point, "Devine [i.e., Wright] was walking away [from Parsons], and as he was walking away, two shots was [sic] fired . . . [b]y Dre [i.e., Parsons]." Tr.457-58, 492-93. Latacha testified that Parsons left the porch and "went after" Wright, who was in the middle of the street; Wright turned around said something as Parsons was walking towards him. Tr.458-59. Latacha related that Parsons grabbed Wright by his white T-shirt and "opened fire on him" with a black-handled handgun. Tr.459. Latacha testified that Wright fell to the ground at the intersection of Clarence Park and Fulton Avenue. Parsons stood over Wright and continued to fire at him but she could not recall how many times. Tr.459-60, 498. After the shooting, Latacha called 911 on her cellphone. Tr.462, 494-95. She then saw Parsons run through the backyard of 124 Fulton. Tr.462, 495-97.

Latacha testified that she got a pillow and a towel and ran out to assist Wright, propping his head on the pillow and stuffing the wound the towel. Tr.463-64, 494-95. Latacha related that Hall was standing on her porch, crying, when she came downstairs. Tr.464, 498.

On cross-examination, Latacha admitted that she had signed a police statement on August 17, 2001, but denied reading it before signing it, and denied telling the police that she had been sitting on her porch with her sister at the time of the shooting. Rather, she instead claimed that she had told the police that she saw the shooting from the window of her second-floor apartment and that she first noticed this error when she read the police statement while meeting with the prosecutor just before giving her trial testimony. Tr.469-73, 500. Latacha also testified that she recalled appearing before the grand jury, but she did not recall that her grand jury testimony was sworn, and she did not recall testifying that she was on the porch with her sister at the time of the shooting. Tr.473-77, 502.2

Latacha also admitted that she had been arrested the previous Friday on a material witness order but had been released after she promised to appear at trial and testify. Tr.465-66. On redirect examination, the prosecutor asked her why she did not testify without a material witness order. Tr.500. She replied, "I was being threatened and-I wasbeing threatened if I come and testify today that they would kill my kids and me. So, I am afraid to testify." Tr.500-01.

3. Eyewitness Anthony Beans

Anthony Beans ("Beans"), a/k/a, "Alabama," testified that he was 38 years-old and lived in an upstairs apartment at 124 Fulton Avenue at the time of the shooting. Tr.505-06, 544-46. Beans testified about his criminal history which included selling cocaine, and he acknowledged his addiction to crack cocaine. Tr.508, 527-47. At the time of trial, he was in jail for a probation violation and was awaiting sentencing on a petit larceny conviction; however, he testified, he did not have any deal with the prosecution in exchange for his testimony against Parsons. Tr.525-26, 539-42, 546-48.

Beans admitted having bought cocaine from Wright, who hung out in front of 126 Fulton, where Latacha and Deidre Harris lived. Tr.545-46, 548-50. He characterized Wright as "like a little brother" to him. Tr.506, 549-50. Beans testified that he knew Parsons and saw him frequently, though they "never really met." Tr.507-08, 557-58.

A little after 11:00 p.m. on August 13, 2001, Beans testified, he was standing in his driveway. He had drunk two or three 12-ounce beers but was not intoxicated. Tr.508, 552-57. Beans recounted watching Parsons and Wright "arguing" on the front porch of 125 Fulton. Tr.509, 511, 556, 558. Beans related that Hall also was in the vicinity. Tr.511, 550, 558-59.

Beans testified that he walked across the street and "told them to stop playing, you know, before it get out of hand, and they kept on, you know, and then it got real serious" when Parsons told Wright, "Don't talk about my family." Tr.509, 511, 559-65. Beans testified that "Dre pulled out a handgun [and] Wright throwed [sic] his hands up" andwalked away. Tr.511-12, 559, 561, 563. Then, Beans related, Parsons "[r]un behind [Wright] and fired his pistol a couple times" while "pointing it at" Wright, who was about 6 to 8 feet away. Tr.512-13. Beans indicated that Wright "started running" but fell "in the middle of the road as he was hit." Tr.512-13, 561-63. Beans "went in hollering about, 'Stop. You going to kill him. Stop before you kill him,' and the other man, Dre, was standing...

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