Wright v. Duncan

• Decision Date: 28 March 2011
• Docket Number: No. 9:02–cv–508 GLS/VEB.,9:02–cv–508 GLS/VEB.
• Citation: 31 F.Supp.3d 378
• Parties: Deshard WRIGHT, Petitioner, v. George DUNCAN, Superintendent, Shawangunk Correctional Facility, Respondent.
• Court: U.S. District Court — Northern District of New York

31 F.Supp.3d 378

Deshard WRIGHT, Petitioner

v.George DUNCAN, Superintendent, Shawangunk Correctional Facility, Respondent.

No. 9:02–cv–508 GLS/VEB.

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

Signed March 28, 2011.

Deshard Wright, Shawangunk, NY, pro se.

Hon. Eric T. Schneiderman, New York State Attorney General, Thomas B. Litsky, Assistant Attorney General, of Counsel, New York, NY, for the Respondent.

MEMORANDUM–DECISION AND ORDER

GARY L. SHARPE, District Judge.

I. Introduction

In an amended habeas corpus petition filed pursuant to 28 U.S.C. § 2254, petitioner Deshard Wright challenges his New York State convictions for second-degree murder, second-degree attempted murder, and second-degree criminal possession of a weapon. (See Am. Pet., Dkt. No. 6.) His petition was eventually referred to Magistrate Judge Victor E. Bianchini for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). (See Reassignment Order, Dkt. No. 24.) After the respondent answered, (see Answer, Dkt. Nos. 10, 11), and Wright filed a traverse, (see Dkt. No. 17), Judge Bianchini issued a report and recommendation (R & R) in which he recommended that the petition be conditionally granted on due process grounds, (see 1st R & R, Dkt. No. 26). In his objections, respondent George Duncan advanced new arguments in opposition to Judge Bianchini's due process conclusions. (See Resp't Objections, Dkt. No. 29.) Given the new arguments, and at Judge Bianchini's request, the court again referred the case for a supplemental R & R. (See Mar. 18, 2008 Order, Dkt. No. 30.) In his supplemental R & R, Judge Bianchini reaffirmed his earlier recommendation, and further recommended that the court disregard respondent's new arguments. (See 2d R & R, Dkt. No. 31.)¹ Pending are respondent's renewed objections. (See Objections, Dkt. Nos. 29, 34.) Wright filed no objections.

For the following reasons, the court: (1) upon de novo review, declines to adopt Judge Bianchini's recommendation to disregard respondent's new arguments; (2) upon de novo review, rejects Judge Bianchini's recommendation that Wright's petition be conditionally granted on his due process claim; (3) upon clear error review, adopts Judge Bianchini's recommendation dismissing Wright's remaining claims; (4) dismisses Wright's petition; and (5) grants a limited certificate of appealability.

II. Standard of Review

The court has previously recited the authority afforded both by statute and rule to refer habeas corpus petitions to magistrate judges, and the standards of review this court employs when evaluating all report and recommendation orders. See Almonte v. N.Y. State Div. of Parole, No. 04–cv–484, 2006 WL 149049, at *2–3 (N.D.N.Y. Jan. 18, 2006). Succinctly stated, a party who fails to timely or specifically object to a magistrate judge's conclusions, procedurally defaults and forfeits his right to judicial review. See id. at *3. While procedural default alone is sufficient to warrant adoption of a magistrate's conclusions, the court retains the discretion to excuse the default in the interests of justice. See id. at *4. When timely and specific objections are made to the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. De novo review requires the court to give fresh consideration to preserved objections, examine the entire record, and make an independent assessment of the magistrate's factual and legal conclusions. See id. at *5. Otherwise, and if the court elects to excuse defaults, it limits its review to clear error. “[A] report is clearly erroneous if the court determines that there is a mistake of fact or law which is obvious and affects substantial rights.” Id. at *6.

III. Background

Because it views the underlying record somewhat differently than does Judge Bianchini, the following reflects the court's de novo reconstruction of the record.

On November 2, 1995, events that began with an argument, a fist fight, and a stolen bicycle culminated with nineteen-year-old Robert Crouse being shot and killed on Mary Street in Utica, New York. The details of those events, the subsequent investigation, and two ensuing trials reflect the difficulties this court has often seen when criminal charges, warring factions, and neighborhood disputes collide. In the end, a jury concluded that Deshard Wright murdered Crouse, attempted to murder Crouse's companion, and illegally possessed a loaded handgun. Having failed to persuade New York's trial and appellate courts that his trial was unfair, Wright now seeks federal habeas relief.

In the early evening of November 2, Crouse, a Caucasian male, rode his bicycle to visit friends at a residence located a few doors down from 513 Mary Street, the home of Barbara Thompson. (Tr. at 22, 45–47, 481, 496.)² As Crouse was leaving, an argument ensued with three African–American individuals present at the Thompson residence—Wright, Alex Thompson, and Jamie Thompson—who accused Crouse of disrespecting their neighborhood by breaking a glass bottle on the sidewalk. (Tr. at 382–85, 396, 421–22, 427.) A fight ensued between Crouse, the three men, and other neighborhood companions, whereby Crouse was beaten and his bicycle was stolen. (Tr. at 22, 45–47, 382–85, 396.)³ Twelve-year-old Brent Mowery was a friend of Wright and the Thompsons, and participated in the fight. (Tr. at 29–30, 462, 494.) After the fight, Crouse left the neighborhood. (Tr. at 45–46.)

A few hours later, Crouse returned with his father, Gabriel Ingrassia, and others to look for his bicycle. (Tr. at 47, 195.) After a verbal confrontation again ensued between Wright, the Thompsons, and Crouse, the police were called, the combatants were dispersed, and Crouse left with his father. (Tr. at 50–53, 90–96, 197–98, 385–87.) During the confrontation, either Wright or one of the Thompsons told Crouse, “we don't fight with our hands; we fight with our finger on the trigger.” (Tr. at 196.)

At around 11:30 p.m., Crouse again returned, this time in a car accompanied by three teenaged friends—Ingrassia, Ciro Raspante, and Joseph Donatello. (Tr. at 23, 27, 197–200, 387–88.) Raspante was driving, Ingrassia was in the front passenger's seat, and Crouse and Donatello were in the rear. (Tr. at 199, 276.) While the others remained in the vehicle, Crouse exited the vehicle and once again confronted the Thompsons and Wright as they walked up Mary Street. (Tr. at 23–24, 201–08, 387–399.) As the argument continued and Crouse and Alex Thompson squared off in fighters' stances, Wright stepped forward, told Crouse to “back the f* * * up and get the f* * * out of my face,” pulled a handgun from his waist and shot at Crouse five to six times, hitting him twice. (Tr. at 25–26, 177–78, 189, 207–10, 212–14, 284–85, 336–339, 395–400, 501.) Wright then pointed the gun at Ingrassia's head while Ingrassia was seated in the front passenger seat, fired, and the bullet deflected off of the windshield. (Tr. at 26, 150–51, 214–15, 341, 345–46.) Wright and the Thompsons then fled, and the friends drove Crouse to the hospital where he was pronounced dead on arrival. (Tr. at 366–70.)

When the fatal confrontation first began, Mowery heard the commotion, came out of his house, followed the entire entourage up Mary street, and watched Wright pull the handgun and shoot. (Tr. at 452–514.)

Jamie Thompson was young, five-feet eight-inches tall, and thin. Alex Thompson, Jamie's uncle, was older, five-feet six-inches tall, and stocky. Deshard Wright was young, thin, and, at six-feet one-inch tall, the tallest of the three. (Tr. at 24, 36, 90–92.)

Once the hospital notified the police of the homicide, responding officers immediately took Raspante, Ingrassia, and Donatello to the police station to begin their investigation. (Tr. at 289, 342.)

Raspante was seventeen years old and the driver of the car. (Tr. at 327–28.) Having seen the protagonists through the front windshield, he described them as short and stocky (Alex Thompson), taller (Jamie Thompson), and tallest (Wright). (Tr. at 333.) Raspante looked at a photo array and did not identify any of the three as the shooter. (Tr. at 349, 351–52.) He did, however, identify the tallest (Wright) as the shooter, but said the shooter was wearing a black knit hat. (Id. )

Eighteen-year-old Ingrassia was in the front passenger's seat, approximately five to seven feet from the shooter when shots were fired, and, from a photographic array, identified Wright as the shooter. (Tr. at 193, 217, 232, 259.) He also identified Wright at trial, and testified that Wright was the tallest of the three. (Id. )

Fourteen-year-old Donatello was seated in the rear seat, and knew Jamie Thompson from school. (Tr. at 27–28, 273, 276.) After he was in the police station all night and before he left the following morning, he told the police that Jamie Thompson was the shooter, picked his photograph from the array, and stated that the shooter was wearing a black knit hat. (Tr. at 289–90, 295–96, 298–300, 302.) Donatello thereafter left the police station, but later returned and told the police that he had thought about his identification, and that he was wrong because the shooter was not the medium-sized protagonist (Jamie Thompson) but instead the tallest of the three (Wright). (Tr. at 292–93.) When he first talked to the police, he told them that the shooter was wearing a black knit hat, but otherwise his physical description matched Wright. (Tr. at 295–96, 324.)

Immediately after the shooting, Wright and the Thompsons ran to the residence of Allena Rivera. (Tr. at 404.) Rivera was Alex Thompson's sister and Jamie Thompson's mother, and owned the home where Wright, a New York City transplant, was staying. (Tr. at 36, 404, 494, 629–77.) Upon arriving, Alex changed his clothes and left. (Tr. at 404.)

Late the following morning, Utica police officer Michael Acquaviva went to the residence and observed Jamie Thompson coming from a bedroom and Wright sitting on a couch. (Tr. at 634.)...