Swift v. Superintendent
| Docket Number | 9:18-CV-01204 (GTS/TWD) |
| Decision Date | 17 February 2022 |
| Parties | LEWIS SWIFT, Petitioner, v. SUPERINTENDENT, Respondent. |
| Court | U.S. District Court — Northern District of New York |
LEWIS SWIFT Petitioner, pro se
HON LETITIA JAMES PAUL B. LYONS, ESQ. Attorney General of the State of New York Assistant Attorney General Counsel for Respondent
REPORT-RECOMMENDATION AND ORDER
This matter has been referred for a Report-Recommendation by the Hon. Glenn T. Suddaby, Chief United States District Judge pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Lewis Swift (“Swift” or “Petitioner”), proceeding pro se challenges his New York State convictions under 28 U.S.C § 2254. (Dkt. No. 1, Petition (“Pet.”).) Respondent opposed the petition. (Dkt. No. 13, Answer; Dkt. No. 14, Memorandum of Law ( ); Dkt. No. 15, State Court Record.[1]) Petitioner filed a reply. (Dkt. No. 18, Traverse.) For the following reasons, the Court recommends denying the petition, and declining to issue a Certificate of Appealability.
II. BACKGROUND
On September 19, 2013, Swift, along with codefendant Gregory Ware (“Ware”), a/k/a “Country”, was charged in a two count indictment with first degree manslaughter and third degree criminal possession of a weapon. (SR 11.) Count 1 alleged that Swift and Ware, while acting in concert with each other and an unidentified third person, caused the death of Carnell Marshall (“Marshall”) by repeatedly striking Marshall, “causing him to suffer severe head trauma, multiple facial fractures, and a lacerated left eye, and left him, while in this vulnerable condition, outdoors, exposed to the elements, allowing him to suffer environmental hypothermia, thereby causing his death.” Id. Count 2 alleged that Swift and Ware, while acting in concert with each other and an unidentified third person, “possessed a dangerous or deadly instrument with the intent to use the same unlawfully against another.” Id.
Prior to Swift's trial, Ware was convicted, upon his guilty plea, of manslaughter in the first degree. People v. Ware, 159 A.D.3d 1401 (4th Dep't), lv. denied, 31 N.Y.3d 1122 (2018).
Ware was sentenced to twenty five years' imprisonment followed by five years of post-release supervision. (T. 40; see S. 7-11.)
Swift proceeded to a jury trial on January 12, 2015, in Onondaga County, during which nineteen witnesses testified for the prosecution.[2] Petitioner presented no evidence at trial. (T. 951-52.)
The evidence at trial established that on April 9, 2012, Swift and Marshall, a long-time acquaintance from the same Syracuse neighborhood, had a minor verbal altercation in the checkout line of a supermarket in Syracuse.[3] (Diamante: 391-92, 420-21; Hardnett: 471-72.) The People introduced security footage from the supermarket's cameras, which was played for the jury. (T. 445.) After the argument, Marshall and Swift had a friendly conversation in the parking lot and “exchanged phone numbers.” (Diamante: 422-23.)
Three days later, on April 12, 2012, Marshall called Swift, asking, “Hey, are we okay?” (Diamante: 423-24.) Swift responded, “Yeah, right, no problems.” (Diamante: 424-25.) Swift also asked Marshall to pick him up so that they could “chill” together. (SR 315-16.) Marshall asked Hardnett if she wanted to “hang out” with him and Swift but she declined. (Hardnett: 446-49.) Later, at around 9:30 p.m., while out with a friend, Hardnett saw Swift, Ware, and another man known as “Rat” together. (Hardnett: 449-50.)
Between 10:30 p.m. and 11:00 p.m., Marshall's girlfriend heard him talking on the phone and thereafter someone picked up Marshall from their house in Syracuse. (Scanes: 766-67, 769.)
Marshall was wearing a red zip-up hooded sweatshirt, jeans, a white T-shirt, Timberland boots, and a square earring that consisted of nine diamonds. (Scanes: 767-69.) He had a red “doo-rag” in his pocket. (Scanes: 767.) The police recovered evidence of multiple telephone calls between Swift and Marshall that night, from 10:29 p.m. through 11:41 p.m. (T. 1018-19.)
On the evening of April 12, 2012, Marshall arrived at Swift's house. (Diamante: 396-98, 427-28.) Swift, Diamante, Ware, Rat, and Marshall were drinking and socializing at Swift's house together. (Diamante: 392, 394-97, 400-01, 425-26.)
At approximately 11:15 p.m., Marshall called Hardnett and told her that “if anything happened to him, ” he was with Swift. (Hardnett: 450-51, 454-55.) At 11:49 p.m., Hardnett received a text message from Marshall stating, “Yo I think those nigga set me up, but its Sammy brother lou.” (SR 161; Hardnett: 451-55;[4] Glauberman: 756-58.) Hardnett replied, “So go home.” (SR 161; Hardnett: 454.) Hardnett subsequently sent Marshall text messages and called him numerous times, but he did not respond. (Hardnett: 454-55.)
At some point, Marshall “kind of left” Swift's house, but then returned. (Diamante: 397-98.) Diamante, who was in the kitchen, overheard Rat tell Swift, “He's back.” (Diamante: 397-98, 425, 428.) Swift responded, “Hit him, that's orders.” (Diamante: 402, 436.) “Right after” Diamante heard “mad tumbling” in the living room. (Diamante: 402-03, 427.) Diamante walked into the living room and saw Ware and Rat attacking and kicking Marshall, who was on the floor. (Diamante: 402-03, 427-29, SR 318.) Ware grabbed a board and hit Marshall with it. (Diamante: 403.) This assault continued for “a couple of minutes” until Swift ordered Ware and Rat, “get him out of the house.” (Diamante: 404-05.) Diamante watched as Rat dragged Marshall out of the house by the hood of his red sweatshirt. (Diamante: 404-05.) Marshall and Rat continued to assault Marshall. (SR 318-19.) “The whole while, ” Swift and Diamante watched the assault from Swift's front porch. (SR 319.) “After about 6 or 7 minutes of watching this beating take place, ” Rat and Ware “dump[ed]” Marshall behind the Cole Muffler, across the street from Swift's house. (SR 319, Diamante: 407.) Diamante saw Rat and Ware come back into the house. (Diamante: 407-08, 433.) Swift walked away while Rat and Ware “cleaned up where the struggle was.” (Diamante: 433-34.)
Diamante could hear Marshall screaming “over and over” from outside. (Diamante: 408-409.) A woman later came over to the house, and Diamante “guessed” that Swift had sex with her. (Diamante: 408.) Swift said, “good night” to Diamante and went to bed, as Swift had “had to[o] much to drink.” (SR 319.) Swift woke up around 3 a.m. or 4 a.m., and heard Marshall “still screaming for help outside, ” but he went back to sleep. (SR 319-20.)
The next day, Ware showed Swift and Diamante a video from his cellphone depicting Ware and Rat “beating and to[rtu]ring” Marshall, spitting and urinating on him, and burning him all over with a cigarette. (SR 320.) Marshall appeared to Swift to be asleep in the video. (SR 320.) A little later, Rat walked over from the vacant lot to Swift's house carrying “a bloody board.” (SR 321.) Rat told Swift that he thought Marshall was dead, pointing to Marshall's body in the lot. Swift told Rat to “get the fuck away from my house.” Swift then called Ware and told him that Marshall was dead. (SR 321.)
That same day, on April 13, 2012, Diamante found Marshall's cellphone in Swift's house. (Diamante: 409-10, 434.) Diamante opened the cellphone and saw Marshall's text message to Hardnett stating that “he thought he had got set up.” (Diamante: 410, 434.) When “[t]hey started cleaning up”, Rat took Marshall's cellphone and a beer bottle and put it in the trash can behind Swift's house. (Diamante: 434-35.)
On April 14, 2012, at approximately 10:26 a.m., Syracuse police responded to a dead-on-arrival dispatch to the Cole Muffler located at 2527 South Salina Street on the corner of McAllister Avenue. (Greco: 361-63; Whitehead: 385-86; McGinn: 497.) A partially clothed black male, later identified as Marshall, was found in the vacant lot of 107 McAllister Avenue, located behind the Cole Muffler and across the street from Swift's house. (Greco: 364-67; McGinn: 498-500, 515.) Marshall was wearing only a blood-soaked and dirty T-shirt and one sock. (Greco: 367; McGinn: 516, 522, 560-62, 567, 574.) He had “severe trauma” to his face, with dried blood seeping from his nostrils, mouth, and swollen-shut eyes. (Greco: 368.) He was pronounced dead at 10:29 a.m. (Whitehead: 386-87; Knight: 910, 921.)
Based on Marshall's body temperature, rigor mortis, and lividity, as well as the outside temperatures, Dr. Knight determined that Marshall had been dead for at least 12 hours and up to 36 hours from the time he was pronounced dead. (Knight: 921-25.) Dr. Knight testified that, “[i]f Marshall was exposed to a windchill of 37 degrees Fahrenheit, he was certainly inappropriately dressed for that with only a T-shirt on and would have been subject to hypothermia.” (Knight: 924.) Specifically, Dr. Knight opined, to a reasonable degree of medical certainty, that Marshall died as a result of “environmental hypothermia, or cold exposure, ” and that “the blunt force injuries of his head, his alcohol intoxication and asthma were contributory conditions to his death.” (Knight: 935.)
When asked to estimate “the length of time of exposure to the cold that would have caused this environmental hypothermia, ” Dr. Knight opined that, although “[i]t's difficult to say in a given individual how long it would take to kill them from hypothermia given individual variations, ” her “best estimate would be that [Marshall] was likely exposed for a few hours.” (Knight: 937.) Dr. Knight testified that Marshall “[c]ertainly . . . could have survived” had Marshall received medical assistance. (Knight: 937-38.)
Diamante testified that on the morning of April...
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