Scott v. Fisher, 03-CV-6274 (VEB).

• Citation: 652 F.Supp.2d 380
• Decision Date: 10 September 2009
• Docket Number: No. 03-CV-6274 (VEB).,03-CV-6274 (VEB).
• Parties: Matthew SCOTT, Petitioner, v. Brian FISHER, Respondent.
• Court: U.S. District Court — Western District of New York

652 F.Supp.2d 380

Matthew SCOTT, Petitioner, v. Brian FISHER, Respondent.

No. 03-CV-6274 (VEB).

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

September 10, 2009.

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Matthew Scott, Ossining, NY, pro se.

Loretta S. Courtney, Rochester, NY, for Respondent.

DECISION AND ORDER

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. Introduction

Pro se petitioner Matthew Scott ("Scott" or "petitioner") has filed a petition for a writ of habeas corpus challenging his conviction following a jury trial in Monroe County Court on charges of (felony) murder in the second degree, as an accomplice (N.Y. Penal Law §§ 20.00, 125.25(3)), and two counts of attempted robbery in the first degree (N.Y. Penal Law §§ 20.00, 110.00, 160.15(1), (2)), as an accomplice. The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

II. Factual Background and Procedural History

A. Overview

The conviction here at issue stems from the fatal shooting on October 17, 1994, of sixteen-year-old George Johnson (a/k/a "Pookie" and "Poochie"), who, with Scott's permission, was using Scott's apartment on Hudson Avenue as a "headquarters" for his (Pookie's) drug-dealing operation. The shooting occurred at Scott's apartment while several other individuals were there playing cards and watching Monday night football. Some of these visitors, one of whom testified as an eyewitness at trial, were also using crack-cocaine they had purchased from Pookie that evening.

When Scott was questioned by police on the night of the shooting, he denied any involvement in or knowledge of the attempted robbery or the shooting. Glaston Gaines, who had a severe crack addiction as well as a lengthy history of drug-related convictions, was identified by several of the eyewitnesses as the shooter. On the basis of these identifications, the police picked up Gaines at a homeless shelter and arrested him. According to Gaines' statement given while in police custody, Scott had recruited him to take part in robbing Pookie of the proceeds from his drug enterprise. Gaines also told the police that Scott had provided him with the weapon used to shoot Pookie.¹ Gaines was convicted of murder in the second degree in a separate trial, and the judgment of conviction was affirmed by this the Appellate Division, Fourth Department of New York State Supreme Court. People v. Gaines, 258 A.D.2d 921, 687 N.Y.S.2d 920 (4th Dept.1999). After Gaines told police that defendant had solicited him to rob the victim, petitioner was questioned and made a statement to police indicating that he had solicited Gaines to rob the victim.

B. Co-Defendant Gaines' Statement to Police

Gaines' statement to police, given on October 25, 1994 (eight days after the incident), is set forth below:

My name is Glaston Gaines, I am 23 years old and have been staying at the Open Door Mission on Main St. I am currently homeless. About a week ago I was on Hudson Ave. I was at a house on Hudson across from Mark St. I had gotten high there before and I knew the man that lived there. I call him M [i.e., Matthew Scott]. I can't remember his real name. He is a tall dark skinned black guy and he lives upstairs in the back. I remember that I was pretty fucked up that night. I hadn't slept in two days. I had been smoking cocaine. While I was in front of M's house, M came outside and started talking with me. M asked me if I wanted to make some money. I said yeah! I asked him how? He said that there was a kid up in the house with a 2 G package. That means the kid had $2000.00 worth of money and drugs on him. I asked M if he had a tool because I didn't have one. He told me to hold on. M went back through the cut but I couldn't see if he went into the house or kept on going toward Weeger St. M came back about an hour later and handed me a black .380 semiautomatic gun. I don't know what kind it was. M just gave me the gun and told me to take the kid into the bathroom and do it. After that M went back into the house. I waited about fifteen minutes and went into M [sic] house. I bought a couple of sacks from a young kid inside. There was about 8 people inside and they were calling this kid Pookie. The only people in there that I knew were M and a kid whose brother went to school with me a long time ago. His name was Donald but this was Donald's brother and I couldn't remember his name. I just hung out getting high in M's house for a while. After awhile, my friend Gillet [i.e., Anthony Latson] came to the door and knocked. M answered the door and let Gillet in. Gillet came in and walked up to me and told me not to do it. I don't know how he knew what I was going to do but he just kept saying, don't do it kid! don't do it. I just said to Gillet, don't worry, I'll see you outside! Gillet kept saying don't do it kid, but I had the gun in my dark blue hoodie and I just took it out and pointed at the kid they called Pookie. I told the kid to break himself! That meant to give me the money. Then all of a sudden the gun started going off. It went off about four or five times. I do no remember shooting the kid, I just remember the gun going off. After that I turned around and went downstairs and went over the fence. I dropped the gun by the fence, climbed the fence and ran through some streets to Upper Falls, frome [sic] there I ran over to Bay St then Niagara. Since then I have been staying at different houses across the city.

I have read this statement and it is true. I wanted to add that I was wearing a black and white bandanna and that came off in the back yard. Also the police told me tonight that the due that got shot was found outside. I don't know how he got outside and also I don't know how the window got broke [sic]. I didn't see anybody go through it.

Respondent's Appendix of Exhibits Submitted with Respondent's Answer to the Habeas Petition ("Resp't Ex.") H at 69-70. Based upon Gaines' statement inculpating Scott,² the police brought Scott in for further questioning. At first, Scott maintained his innocence. Some time later, however, after being told that Gaines had fingered him, Scott gave a statement to the police. Scott related that he had first approached a man named Anthony Latson ("Latson", a/k/a "Gillet", "Gillette," or "Gillie"), about robbing Pookie. Latson declined, so Scott asked Gaines, who agreed to do the job.

C. Petitioner's Second Statement to Police

As noted above, Scott's first statement to the police, given on October 18, 1994, denied any involvement in the shooting. His second statement, given after Gaines' was arrested, is set forth below:

On Monday October 17th, 1994, I was at my apartment playing cards, drinking beer and smoking cocaine with Jerry Durnham, Red or Larry, Pookie, Tim Henry, Willie[,] whose last name I do not know, Clevelnad [sic] or Bubba, Annette and Glass [Gaines]. Pookie was a young sixteen year old who was selling cocaine at my house. He was selling cocaine at my house for about three days. Pookie would give me six five dollar bags of cocaine. About and [sic] hour before Pookie got shot at my apartment Gillie [Latson] came over with a person I do not know. I spoke with Gillie at the top of my stairs leeding [sic] into my apartment. I started talking with Gillie about Pookie having a few bags of cocaine and I asked Gillie if he wanted to rip him off. Gillie told me that he didn't want anything to do with that. Gillie did not come in but left down the stairs. About ten minutes after Gillie left I saw Glass standing by my bedroom door. I walked up to him and told him that Pookie who I also referred to as the kid had about a grand or more on him. I asked Glass if he wanted to rip the kid off. Glass nodded his head. I told him that he should tell the kid that he wanted to buy a couple of sacks. To take him into the bathroom or the livingroom because there were a lot of people in the kitchen. That we would split what ever [sic] Glass got. I told Glass that he should get the kids [sic] attention when I got up from my chair and start walking towards my bedroom. I walked away from Glass and sat down at the table and continue playing spades. My partner was Jerry and Pookie's partner was Red. Pookie was sitting at the table with his back towards the kitchen counter. I was seated to Pookie's right. Jerry was near the door to my apartment and Red was seated to my right.

About five minutes before the shooting there was a knock at my door. I asked who was at the door and the person answered that it was Gillie [i.e., Latson]. I opened the door and saw Gillie. Gillies [sic] friend who was with him earlier was about half way up the steps. Gillie asked me where the guy was with the blue hoodie and a blue and white bandanna. I pointed towards my bedroom. Gillie walked in and walked up to Glass and said something to him. I did not hear what was said. I sat back down at the table. After Gillie was done talking with Glass and [sic] walked out the door. About two or three minutes later I got up and started walking towards my bedroom. This was the signal for the robbery to go down. I had just walked past [P]ookie when I saw Glass grab [P]ookie around the neck and I started hearing shooting. I first heard one shot followed by a second shot, then three more. At the first shot I hit the floor in my bedroom. At the second shot I started shaking then while the last three shots went off I heard people moving around. I heard glass break. Then it was quiet. I got up off the floor and peeked out my door. I thought I would see the kid lying on the floor, but he was not there. As I was comming [sic] out of my bedroom I was met by Jerry. Jerry said he was looking for the kid. I saw blood on the wall by the stove, [b]lood on the floor by the garbage can. Willie and Tim left my apartment followed by Cleveland and Annette were [sic] in the bathroom. I then went outside and saw Pookie lying on the sidewalk two doors...