# Dixon v. Conway

> District Court, W.D. New York · May 5, 2009 · 613 F. Supp. 2d 330

URL: https://www.frixlaw.com/law-library/cases/2156489

## Case

- **Full name:** Valentino DIXON, Petitioner, v. James T. CONWAY, Superintendent of Attica Correctional Facility, Respondent
- **Court:** District Court, W.D. New York
- **Decided:** May 5, 2009
- **Citations:** 613 F. Supp. 2d 330; 2009 U.S. Dist. LEXIS 38916; 2009 WL 1259077
- **Precedential status:** Published
- **Opinion:** Opinion by Arcara
- **Judges:** Richard J. Arcara
- **Cited by:** 2 later opinions in the Frix Law Library

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## Opinion text

ORDER
RICHARD J. ARCARA, Chief Judge.
This case was referred to Magistrate Judge Victor E. Bianchini, pursuant to 28
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U.S.C. § 636(b)(1). On March 28, 2005, petitioner filed a petition for a writ of habeas corpus. On January 7, 2009, Magistrate Judge Bianchini filed an Amended Report and Recommendation, recommending that the Court find that the petition is untimely.
Petitioner filed objections to the Report and Recommendation on January 20, 2009 and respondent filed a response thereto on March 9, 2009. Oral argument on the objections was held on March 12, 2009.
Pursuant to 28 U.S.C. § 636 (b)(1), this Court must make a
de novo
determination of those portions of the Report and Recommendation to which objections have been made. Upon a
de novo
review of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation.
Accordingly, for the reasons set forth in Magistrate Judge Bianchini’s Report and Recommendation, petitioner’s petition for a writ of habeas corpus is denied. The Clerk of Court is directed to take all steps necessary to close the case.
The Court finds that petitioner has failed to make a substantial showing of the denial of a constitutional right and therefore denies his motion for a certificate of appealability. 28 U.S.C. § 2253 (c)(2).
SO ORDERED.
AMENDED REPORT AND RECOMMENDATION
VICTOR E. BIANCHINI, United States Magistrate Judge.
I. Introduction
Represented by counsel,
1
Valentino Dixon (“Dixon” or “Petitioner”) filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his August 7, 1992 conviction following a jury trial in Erie County Court on charges of second degree (intentional) murder, attempted second degree murder, first degree assault, and related charges. In particular, Dixon contends that (1) there exists newly discovered evidence of his actual innocence in the form of positive results from “voice stress analysis” testing, Petitioner’s Memorandum of Law (“Pet’r Mem.”) a. 4-8 (Docket No. 3), and (2) that trial counsel was ineffective for failing to “undertake an adequate investigation,” “call witnesses at the criminal trial,” “live up to the expectations of the jury when he did not call any witnesses,” and “impeach prosecution witnesses with prior inconsistent statements made to the police,” Pet’r Mem. at viii, 8-24 (Docket No. 3). He also contends that the prosecutor committed misconduct by offering perjured testimony and using coercion and threats to dissuade certain individuals from testifying favorably for the defense. Pet’r Mem. at 24-35.
Respondent contends that Dixon failed to file his petition within the limitations period provided by the Anti-Terrorism and Effective Death Penalty Act (“AED-PA”), 28 U.S.C. § 2244 (d)(1). Respondent’s Memorandum of Law (“Resp’t Mem.”) at 1 (Docket No. 15). Respondent indicates in his memorandum of law that Dixon concedes that his petition is untimely.
Id.
However, Dixon, in his traverse replying to respondent’s memorandum, “disagrees with the question of untimeliness .... ” Petitioner’s Traverse (“Trav.”) at 1 (Docket No. 18). In any event, Dixon contends that the limitations period should
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be tolled because he is actually innocent of the offense for which he was convicted. Dixon also asserts that any delay in his filing in federal court was caused due to mistakes and “fraudulent concealment” on the part of the state court in allegedly losing one of his post-conviction motions to vacate the judgment. Trav. at 11-13 (Docket No. 18). Respondent was directed, in its answer and memorandum of law, to address whether Dixon’s actual innocence claim equitably tolls the statute of limitations, in light of the Second Circuit’s decision in
Doe v. Menefee,
391 F.3d 147 (2d Cir.2004).
See
Decision and Order, dated April 5, 2005 (Larimer, D.J.) (Docket No. 5).
This matter has been referred to the undersigned for the issuance of a report and recommendation regarding the disposition of Dixon’s petition.
See
Docket No. 20. For the reasons that follow, I recommend finding that the petition was not timely filed under AEDPA, and that Petitioner is not entitled to either statutory or equitable tolling. In addition, I recommend finding that Petitioner has not carried his burden of establishing a credible claim of “actual innocence.” In the alternative, I recommend finding that none of Petitioner’s claims warrant habeas relief on the merits. Accordingly, I recommend that the petition be dismissed as untimely, or, in the alternative, as without merit.
II. Factual Background and Procedural History
A. Overview of the Prosecution’s Case at Trial
By Erie County Indictment 91-1476-001, Dixon was charged with intentional and depraved indifference murder in connection with the fatal shooting of Torriano Jackson (“Torriano” or “the victim”) on August 10, 1991, near the intersection of Bailey and East Delevan Streets in the City of Buffalo. Dixon also was charged with attempted second degree murder with regard to the shooting of Torriano’s brother, Aaron Jackson (“Aaron”); and first degree (deadly weapon) assault with regard to the shooting of John Sullivan, III (“Sullivan”).
See
The prosecution presented six eyewitnesses — Aaron Jackson, Travis Powell (“Powell”), Sullivan, Emil Adams (“Adams”), Robert Lewis (“Lewis”), and Fred Stancil (“Stancil”). Three of them — Sullivan, Adams, and Aaron, identified Dixon as the shooter. Although there were some minor differences in the details related, their descriptions of the shooting essentially were all consistent.
During the prosecution’s ease, all six witnesses testified that there was an argument followed by a physical fight between brothers Aaron, Torriano, and their friend Powell on one side, and Mario Jarmon (“Jarmon”) and two of his friends, Leonard Brown (“Brown”) and Antoine Shannon (“Shannon”) on the other.
2
According to the prosecution’s witnesses, none of the participants in the fight had a gun, and no shots were fired during the fight by any of them. These witnesses also stated that the gunman was
not
involved in the fight, but rather approached the group some time after the confrontation began. The shooter first sprayed bullets from an automatic weapon into the crowd that had gathered in order to disperse them. He then shot directly at Aaron as he tried to crawl into his car, and fired numerous shots into Torriano as he lay wounded in the street.
B. The Prosecution Witnesses
1. Aaron Jackson
Twenty-one-year-old Aaron was Torriano’s older brother. T.212.
3
Aaron was
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driving around with his friend Powell in Powell’s mother’s car, a yellow Geo Storm, on the night of August 9, 1991. T.212-13. They stopped at a convenience store next to the Norstar Bank so that Powell could buy cigarettes. While Aaron was waiting in the car for Powell, Aaron was approached by Jarmon, Brown and Shannon. T.214. Of those three men, Aaron only knew Brown. T.214. Jarmon said something to the effect of, “let’s just get out the car and let’s take care of this.” T.214. Jarmon started talking about someone who had pointed a gun at his cousin’s head. T.214-15. Aaron testified that he did not know what Jarmon was talking about. T.215.
Aaron then moved over to the driver’s side of the car and pulled up to the front of the store, calling for Powell. Powell exited the store, and he and Aaron left the scene. They drove to Aaron’s home, where they picked up his younger brother, Torriano, at around 11:30 or 11:45 p.m. T.215-16. Torriano had not been with the other two earlier because he had been working at Burger King. T.216. Aaron claimed that he “felt safer” having his brother around after Jarmon had accosted him. T.216.
Aaron, Powell, and Torriano proceeded to drive back to the area around the store parking lot so Aaron could point out Jarmon to Torriano, thinking maybe .Torriano would know who Jarmon was. T.217. No one was there, however, so the three drove around to various parties. T.217. According to Aaron, they consumed no alcohol or drugs. T.217, 312-13.
After the night of party-going, during the early morning hours of August 10, the Jackson brothers were asleep in Powell’s car. Powell was driving. As they passed by the location where Jarmon had confronted Aaron, Powell nudged Aaron awake and pointed out Jarmon to him. T.218. Powell asked, “Isn’t that the guy we saw earlier?” T.218. Aaron agreed and asked Torriano if he knew him; Torriano said he did. T.218. Torriano did not say who the guy was, just that he had “seen him around.” T.218.
Aaron testified that Jarmon gestured to him and said, “Come on, let’s do it.” T.256. Aaron got out of the car and ran up to Jarmon. He was followed by Torriano. Powell was parking the car. T.218-219, 256. Aaron testified that neither he nor his brother Torriano had a weapon of any kind. T.220-221.
Since Jarmon had said earlier that he wanted “to see” Aaron, Aaron said to him, “[W]ell here I am ... what is the problem now?” Aaron stated that Torriano addressed Jarmon, too, saying “You didn’t know this was my brother, did you?” T.220.
Aaron recalled that there were two or three “other guys” with Jarmon, standing two or three feet away. Jarmon turned his back so that Aaron and Torriano had to turn their backs to the “other guys.” T.258, 259, 276-77. Jarmon “put up his hand like as if [sic] to throw a blow so [Torriano] hit him,” and at that point Torriano hit Jarmon, causing Jarmon to stumble and fall. T.220, 259. Aaron testified that while Jarmon was on the ground, Aaron hit him and kicked him. T.221. Their friend, Sullivan, who had not been involved with any of the confrontations between these individuals before, ran up and tried to break up the fight. T 262.
As Aaron and Torriano were hitting Jarmon, Aaron heard someone say, “[Y]ou better run, Tino is going to his car.”
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T.221.
4
Then Aaron heard “a lot” of rapidly fired shots. T.222. recalled that the shooter came from behind him, on his right. T.267. Aaron said that as he felt the shells striking his body, he hit Torriano’s hand and told him to “get out of here.” T.224, 268. Aaron ran towards Louie’s hot dog shop, while Torriano started running toward the store. T.224.
Aaron turned around to see where the shots were coming from, and felt a sharp pain in his stomach. T.224-25. Stumbling, he saw Torriano fall to the ground. T.224-25. Aaron testified that he watched the shooter walking up slowly and “a lot” of sparks coming from the shooter’s direction. T.225. Torriano was lying on his back in the street. T.226, 270. Aaron stated that the shooter, who was about ten feet to fifteen feet away, moved over Torriano and continued firing into him. T.225. Aaron indicated that he could see the gunman’s face as he shot Torriano. T.225
Aaron crawled into the Geo and looked at the ignition for the keys, thinking he might run the shooter over with the car. T.226-27. Aaron saw that the shooter’s focus had left Torriano and had shifted to himself. Aaron thought the shooter was going to fire into the car, as shots started coming in that direction and he “heard a shot hit the top of the car.” T.227. However, Aaron saw the shooter turn back and keep firing at Torriano. T.227. Aaron tried to get out of the car to help his brother, but he could not walk and fell to the ground, unable to move due to his injuries. T.227.
The firing finally stopped and the shooter left the scene. T.228. Torriano looked to Aaron and asked if Aaron could help him. Aaron replied he was shot and could not move. T.228. The police arrived first, followed by an ambulance. T.229. By that point, Torriano had been moved by someone else (Powell) to the parking lot next to Louie’s. T.228-29. Aaron was taken to the hospital, where he spent three weeks and underwent three surgeries, including placement and removal of a colostomy bag. T.229-30.
Aaron identified the shooter as Dixon. T.227-28. Aaron stated that he had known Dixon before the shooting. He maintained that he knew Dixon’s face and his name, and could put the name to Dixon’s face. T.236-37. Aaron admitted that he had not been introduced to Dixon, but he had seen Dixon driving around in his car and someone had pointed out Dixon to him before. T.238. Furthermore, Aaron claimed, he had seen Dixon driving around under nighttime conditions, and had in fact seen Dixon at the location where the shooting took place. T 236-39.
5
However, he admitted he was not sure precisely when that sighting had occurred.
While Aaron was in the hospital, he was shown a six-photograph array by the police which included a photograph of Dixon in position four. This was less than forty-eight hours after the shooting. Aaron selected petitioner’s photograph. T.241-42. At trial, Aaron at first testified that he told the police that photo number four was “definitely” the shooter. T.243. On cross-examination, defense counsel confronted Aaron with the “photo array identification
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affidavit,” T.241-49, dated August 12,1991, attached to the photo array. On the accompanying documentation, Aaron identified photo number four as the person “who looks like the guy that shot my brother.”
Id.; see also
Docket No. 1-3. Aaron notes on the statement that the person in photo four “was there,” but states, “I cannot be sure because it happened so quick.” T.244. Based on this affidavit, trial counsel forced Aaron to admit that his prior testimony was incorrect when he stated he told police number four was “definitely” the shooter. T 244-45. Aaron stated he observed Dixon’s face at three points. The first was when he fell down after being shot and looked back for his brother. T.270-71. The second time was when he had crawled inside the car, and the shooter faced toward Aaron to shoot at him. T.271-72. The third was when Aaron watched the shooter stand over Torriano firing bullets into him. T.273-74. At that point, the shooter was ten to fifteen feet away from Aaron. T.274.
When defense counsel pressed him regarding this discrepancy, Aaron testified that on August 12, 1991, he was certain petitioner had shot his brother, and that he did not “remember” why he had not said so to police:
Q: You don’t remember. You don’t remember why you couldn’t make an identification like you made in court here today two days after the incident?
A: I was in the hospital, my brother was dead, my older brother had just passed away six [sic] weeks ago. I had a colostomy bag on, I was under medication. I don’t remember.
Q: August 12th, two days after the incident?
A: Yes.
Q: Didn’t you tell us a few minutes ago under direct examination that you didn’t even know your brother had died until a week or two weeks later?
A: I didn’t know.
Q: Just a moment ago you told us that you were under some stress, apparently, and that’s why you don’t remember?
A: And I didn’t know my brother was dead.
Q: Okay. So, on August 12th you didn’t know who shot your brother, did you?
A: Yes, I did.
Q: You didn’t tell the police that?
A: I picked the picture of the person who looked like the one who shot my brother.
Q: All right, but you told us that at the scene, at the time the incident occurred that you knew that the shooter was Valentino Dixon. Now you’re telling us two days later you picked a picture that you say looked like the person who shot you and your brother. Am I right so far?
A: Yes.
Q: But, on August 12th when you picked out that picture, you didn’t tell the police that you knew that the person who shot you and your brother was Valentino Dixon, did you?
A: No.
Q: Why not?
A: I didn’t remember.
Q: You didn’t remember. What refreshed your recollection? What jogged your memory? What causes you to come into this courtroom today and say that the person seated next to me is the person that shot you and your brother?
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A: I have had to think about this since August 10th over and over again. The thoughts go through my mind so vividly, and I have no doubt in my mind that that person sitting right there next to you is who shot my little brother.
T.246-48. When trial counsel pressed him on how he was more sure of the shooter’s identity now, Aaron claimed that his memory had gotten better over time. T.252. Trial counsel cross-examined Aaron further about his ability to identify Dixon, suggesting that Aaron had been influenced by watching media reports of the shooting and by the length of the investigation. T.252-53.
2. Travis Powell
Twenty-three-year-old Travis Powell considered himself a “close friend” of the Jacksons. T.284. Powell testified, as Aaron had, that the two of them had stopped at the store so that Powell could go in to get cigarettes. T.284-85. However, Powell recalled, he left the store without making his purchase because Aaron had pulled the car up to the store entrance and was beeping the horn. T.285-86. Aaron told Powell to get in the car, and they drove to the Jackson’s house and picked up Torriano. According to Powell, the three of them then rode around to various parties, but did not get out of the car. T.287.
Late that night or early the next morning, Powell was driving by the area in the vicinity of the store where they had been earlier, when Powell had gone to buy cigarettes. Powell indicated that they were going to get something to eat at Louie’s hot dog shop, which was next to the store. T.288-89. Powell stated that as he was pulling into the parking lot, he woke up Aaron to let him know they were at the restaurant. T.289. Upon being awakened, Aaron jumped out of the car and walked across the street to Jarmon, starting an argument with him. T.289-91. Powell, who knew Jarmon from prior occasions, had seen Jarmon earlier when he (Powell) and Aaron had stopped by the store to buy cigarettes. T.289-90.
Powell parked the Geo and he and Torriano got out of the car. T.290. By the time that he and Torriano had exited the car, Aaron “was across the street conversing with [Jarmon] and they start[ed] getting in an argument .... ” T.289. Powell testified that none of them had weapons of any sort. T.291. Powell estimated that about half a minute after Aaron confronted Jarmon, he (Powell) and Torriano arrived in the same area. T.290-91.
Powell indicated that the argument got louder, shifting from Aaron arguing with Jarmon, to Torriano arguing with Jarmon. Powell could not saw who threw the first punch. T.321. He said that “[t]hey just started fighingt.” T.292-93. Powell testified that none of the fighters had a weapon. T.292.
Powell recalled that as Torriano and Jarmon were wrestling each other, they fell to the ground, and that is when the shooting started. T.293. Powell did not see the shooter, but he did see bullets sparking off the curb. T.293, 323. Powell stated that he was looking at Torriano when the shooting started. T.293-94. Torriano and the others began running, but Torriano fell in the street. T.294-95. Powell did not seek where Aaron ran because he was watching Torriano. T.325, 330. After the shooter left, Powell picked up Torriano and carried him to the parking lot, where he held him and tried to stop the bleeding until emergency assistance arrived. T.297-98.
Powell said that the only time he actually saw the shooter was when the shooter stood over Torriano firing bullets into him. T.295. Powell did not see the shooter ap
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proach and did not see him leave. He also did not see the shooter’s face and was unable to make a positive identification. T.295-300. Powell said that the shooter was wearing “black clothing and a baseball cap.” T.327-28.
Powell testified that the shooter was holding the gun with two hands and that the shots were rapidly fired, like an automatic weapon. T.296. Powell had some experience with automatic weapons from his service in the military. T.325-26.
3. Emil Adams
Nineteen-year-old Emil Adams was a resident of Michigan but had been staying with relatives in Buffalo at the time of the shooting. He had gotten a ride to Louie’s hot dog shop from a friend of his, “Mike,” whose last name he did not know. T.145. He was at the intersection of Bailey and East Delavan some time after midnight on August 10, 1991. T.144. Adams testified that he was completely sober at the time. T.145, 175-76. Adams testified that he knew both Jackson brothers and he also knew Jarmon. T.145-46.
Adams was talking to the Jacksons and Powell, who were sitting in Powell’s mother’s Geo Storm. At that time, he saw Dixon and Jarmon walking down the street. T.146, 177-78. Adams knew Pétitioner’s brothers, Brown and Shannon, since they had grown up near Adams’ grandmother’s house. Adams testified that he had seen petitioner a few times over the past five years, but did not really know him personally. T.153, 209-11.
At some point, Adams stated, Torriano and Aaron got out of the Geo and ran over to Jarmon; Powell, however, did not. T. 146-149. An argument developed into a fistfight between Aaron and Jarmon. T.148-49. Adams recalled that Torriano was yelling “[O]ne on one. Nobody else jump in.” T.149-50, 186. Neither Aaron nor Torriano nor Jarmon had weapons, as far as Adams could see. T.149. Specifically, Adams said, neither Aaron nor Torriano had a weapon at anytime throughout the entire incident. T.162.
At one point, Aaron had knocked Jarmon to the ground and was “[kjicking on [him].” T.186. The next thing that Adams saw was Dixon and another man, whom he could not identify, walk toward the fight from the direction of Jarmon’s nearby house on East Delavan. T.150-51, 187-88. Adams recalled that neither Dixon nor his companion were displaying a gun. T.151. Then Dixon and the other man walked back towards Jarmon’s house. When they returned, “both of them [were] walking with a gun.” T.151. Dixon was holding what Adams described as a “long” weapon; the unidentified man had a handgun. T.151. Adams testified that Dixon and his companion were about the same size. T.150-51.
Adams related that Dixon walked into the crowd that had gathered around the fight and began shooting, holding the weapon with both hands. T.152, 154, 192-93. The gunfire was. “pretty rapid.” T.155. The crowd scattered and Adams jumped behind the yellow Geo Storm. T.154, 195. Adams saw Aaron run toward the Geo and fall to the ground next to the car. T.154. Adams saw Torriano fall in the street, as well. Adams watched from behind the car as Dixon stood over Torriano and fired bullets into him. T.155. However, Adams did not see if the man who was with Dixon also fired his weapon (the handgun). T.155-56. When Dixon was done shooting, he and the other man went back toward Jarmon’s house. T.156.
Adams pulled Aaron, who was calling out for someone to go get his brother, behind the car. When Adams went to retrieve Torriano, he found that Powell
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had already carried him to the nearby parking lot. T.156, 200.
While he was holding Torriano, Adams was approached by a police officer. T.165. Adams told the officer what he had just seen, and Adams went to headquarters and gave a statement. T.165-67;
see also
A.13-15. In the statement, Adams described the shooter as six feet tall and “heavyset.” A.14.
On cross-examination, defense counsel attacked Adams about his ability to observe the gun under the stressful circumstances of the shooting. T.177-199. For instance, trial counsel challenged Adams’ description of Dixon as “heavyset” by having petitioner stand up for Adams’ observation. Adams admitted that petitioner was not heavyset. T.205-06. However, Adams maintained that he saw the shooter’s face. T.196.
In addition to challenging Adams’ description of the shooter and testimony regarding the incident as unreliable, Dixon also alleges that Adams deliberately lied to the police and at trial after being “coerced” by the authorities. The only “proof’ Dixon presents that Adams was coerced into perjuring himself is an unsworn, undated statement submitted by defense investigator Roger Putnam (“Putnam”);
6
see also
A.135-36. Putnam claims to have visited Adams on six occasions in February and March of 2000, eight years after the 1992 trial. Putnam states that he “asked Emil Adams if the testimony he gave during the trial of Valentino Dixon was true.” Putnam Stmt., ¶ 7. According to Putnam, Adams stated that “he was coerced by the District Attorney to give testimony against Valentino Dixon[,]” and purportedly agreed to meet Putnam at his office “for the purpose of giving a sworn statement to the effect that he lied at the trial of Valentino Dixon.”
Id.,
¶¶ 9, 10. Putnam avers that “[a]fter repeated attempts by telephone and personal visits” to Adams, he “was unable to convince Emil Adams to come to [Putnam’s office] in order to give a sworn statement” because Adams “was afraid of retaliation from the District Attorney’s Office and/or the Police Department.”
Id.,
¶¶ 11, 12. Apart from the infirmities in the form of Putnam’s statement (it is unsworn and undated), the content is devoid of any details of the alleged coercion of, and threats of retaliation against, Adams by the police and prosecutor. I agree with respondent that Putnam’s statement lacks credibility and does not undermine either Adams’ statement to the police after the incident, his identification of Dixon from a photo array on the night of the shooting, or his testimony at trial. Furthermore, it does not come close to substantiating Dixon’s claim that Adams was subjected to pressure or coercion by the prosecutor or police.
Refuting Putnam’s allegations about Adams is the sworn affidavit dated July 12, 2005, from Investigator Daniel A. Dill (“Dill Aff.”), to which is attache a sworn statement from Adams. Investigator Dill avers that he showed the original photo array to Adams on July 11, 2005, along with Putnam’s statement. According to Investigator Dill, “Adams denied ever talking with Putnam and says everything in the affidavit is fabricated.” Dill Aff., ¶ 5. Adams said that he “remembered the [photo] array and picking out Valentino Dixon,” and that his identification of Dixon “was true and accurate,” that he had “never lied about the shooting, and ... [had] never been coerced by the District Attor
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ne/s office.”
Id.,
¶ 7. During their interview, Investigator Dill obtained from Adams a sworn and dated deposition in which Adams stated as follows:
I was shown an affidavit by Inv D. Dill regarding a statement I made to Roger Putnam. I do not know a Roger Putnam, I never talked to Putnam, I never lied in court or [sic] coerced by the District Attorney’s Office. I was giving [sic] 3 copies of the affidavit by the news reporter who wrote an article about this case. The news reporter told me Roger Putnam gave him the information[.] That is not true. Roger Putnam made this entire affidavit up which upset me, if I can sue him I would.
Deposition of Emil Adams, attached to Dill Aff.
Because Dixon has submitted only speculation and unsubstantiated hearsay to buttress his attacks on Adams’ credibility, they lack any indicia of trustworthiness and should be rejected.
4. John Sullivan
John Sullivan stated that he was living in Buffalo during the summer of 1991; he moved to Georgia about a week after the shooting. T.74. He acknowledged that he had been charged with a crime since moving to Georgia, and that charge was still pending at the time of Dixon’s trial. T.74-75. Sullivan was seventeen-years-old at the time of the shooting.
He was at the intersection of Bailey and East Delavan in the early morning hours of August 10, 1991, sitting in a car with his friends Fred Stancil and Robert Lewis. T.75. Their car was between the parking lot of Louie’s hot dog shop and East Delevan. Sullivan saw the Jackson brothers get out of Travis Powell’s yellow car and go up to Mario Jarmon and start to argue. T.75-77. He indicated that at first, the ensuing fight was between Aaron and Jarmon.
Sullivan testified that he was friends with both Jarmon and the Jackson brothers. T.77-78. Because Sullivan knew them both, he told Aaron not to fight, and he tried to break up the fight. T.78. When Aaron insisted on fighting, Sullivan stood back. T.78-79. Eventually, Sullivan stated, Torriano started hitting Jarmon, so it was two-on-one, but Jarmon was still on his feet. All three (Jarmon, Aaron, and Torriano) all exchanged punches. T.79-81.
As the fight continued, Sullivan heard Mike Bland
7
say “watch out, he’s got a gun.” T.80-81. Sullivan could see the hands of the two Jacksons and of Jarmon, and none of them had a gun when Bland spoke those words. T.81-82; T.90-91. Sullivan stated that the Jacksons and Jarmon were fighting each other with their fists.
When he heard Bland’s warning, Sullivan ran toward a nearby church. As he was running, Sullivan heard rapidly fired gunshots. T.82-83. Once Sullivan crossed the street, he looked back and saw Dixon standing over Torriano, shooting into him for “[m]aybe between fifteen and thirty seconds.” T.83, 86. Dixon was holding the gun in both hands. T.85. Torriano was lying face up in the street, and he did not have a gun. T.86.
Sullivan indicated that when he was done firing, Dixon ran back down East Delavan. T.86. Sullivan realized that he had been shot, because of the pain he felt
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and the blood he saw running down on his leg. T.86-87.
As soon as Dixon had left the scene, Sullivan called the police. He recalled speaking with them within three to five minutes after the shooting. T.142-143. Sullivan then went to the hospital, where he was treated for a “through and through” bullet wound of his thigh and released. T.519. Afterwards, Sullivan went to police headquarters and gave a statement. T.97, 142-143. Sullivan told police “Tino” was the shooter, and he described “Tino” as six feet tall, weighing about one hundred and sixty or one hundred and seventy pounds. A 12. Sullivan recognized Dixon from having previously seen him between two to five times at M & M Sporting Goods store, owned by one of Sullivan’s friends. T.84. Sullivan said that he knew Dixon’s name to be “Tino.” T.84-85; T.128-130.
8
Sullivan admitted that he saw the shooter’s face in profile and could not describe the shooter’s clothing. T.141-42.
On cross-examination, defense counsel challenged Sullivan’s credibility and ability to identify the shooter. He elicited again that Sullivan had been arrested for a crime in the state of Georgia, and the charges were pending. T.74-75.
9
Defense also counsel focused on Sullivan’s consumption of alcohol and drugs during the day prior to the shooting. T.101-08. As noted above, the murder took place at about 1:30 a.m. on August 10, 1991. Sullivan testified he rolled marijuana sprinkled with cocaine into a joint and smoked it around 3:30 p.m. on August 9, 1991, about ten hours before he witnessed the murder. T.103-04. The mixture apparently made Sullivan drowsy, and he “slept off’ the high, awakening at ten o’clock in the evening. T.104-06. When he awoke, Sullivan consumed two bottles of malt liquor. T.107-08.
Defense counsel next challenged Sullivan’s ability to observe the shooter from the place that Sullivan said he did. Defense counsel inquired about the large crowd surrounding the incident; the vehicle traffic on Bailey, across which Sullivan allegedly saw Dixon shooting into Torriano; and the effect the headlights in the traffic would have had on Sullivan’s ability to see clearly. T.113-24. Lastly, trial counsel asked Sullivan to estimate the distance from which he saw petitioner, and Sullivan estimated one hundred to one hundred and fifty yards. T.124.
10
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5. Robert Lewis
Twenty-four-year-old Lewis was sitting with his Mends Stancil and Sullivan, in Stancil’s truck at the intersection of Bailey and East Delavan in the early morning hours of August 10, 1991. T.331-32. Lewis recalled that Sullivan tapped him on the shoulder and pointed out the Jackson brothers driving by with Powell. T.334. Lewis saw that Powell parked the car in a parking lot, and Aaron got out and went up to Jarmon. Aaron was followed by Torriano and Powell. T.334-35.
According to Lewis “[t]hey was [sic] just standing there passing words, and then they just started swinging at each other.... ” T.335. Aaron threw the first punch, setting off the fight. T.335-36. Lewis and Stancil got out of the truck and tried to break up the fight. Lewis said that they were “in the middle of them [the three men fighting] trying to get them [the Jacksons] away from” Jarmon. T.336.
Lewis indicated that none of the individuals present had a weapon, although Aaron did have something that looked like a roll of quarters or a battery in his hand. Aaron did not have a boxcutter-type knife, however. T.359-60.
Lewis stated that fight started and stopped about three times. The third time, the three fighters all fell in the street, and Lewis tried to get the group back up on their feet. T.336-37. Lewis testified that was when the shooter approached with the gun. Lewis “saw some legs coming towards [them] and he [the shooter] screamed out ‘[W]hat the hell you all going to do now?’ and started firing.” T.336-37. Lewis recalled that the bullets bounced off the ground in front of him. T.354.
The shooter ran up to the crowd, shooting at the people gathered “in general.” T.338. As the bullets started flying, Lewis grabbed Torriano, who “fell away” from him. T.337. Torriano tried to get up, but fell again. T.338-39. Lewis ran around the corner where he saw Jarmon stagger and then fall. T.337. The shooter then ran past Torriano and started shooting at Aaron. T.338, 358. Lewis looked back and there was a “second round” of firing, with the shooter getting right up over Torriano and shooting bullets into him. T.339-40, 356. Lewis did not want to leave Torriano on the ground, but he had to when he saw the shooter running up to Torriano. After the shooter finished, he ran back in the direction of Jarmon’s house on East Delevan. T.358-59.
Lewis did not see who the shooter was, but described him shooter as “short.” T.340. Lewis, who described himself as five feet, eleven inches-tall at trial, said that the shooter was a “little bit” shorter than him. T.340-41. Like Powell, Lewis said that the shooter was wearing a hat, which Lewis described as “black.” He also had “some dark colored jeans and red, a reddish like shirt and red sneakers.” T.340-41.
6. Fred Stancil
As Lewis and Sullivan indicated, twenty-two-year-old Stancil was sitting with them in his truck at the intersection of Bailey and East Delavan in the early morning hours of August 10, 1991. T.361-63. The Jackson brothers and Powell arrived in Powell’s mother’s yellow car. Stancil knew the Jacksons, Powell, and Jarmon. One of them (Aaron, Torriano, or Powell) commented to Stancil that “they” had a “problem” with somebody. T.363. Stancil thought it was Powell who said it, since Aaron and Torriano were already walking over to Jarmon. They did not explain the remark. T.373. Stancil recalled that neither the Jacksons nor Powell had a weapon. T.363. Stancil watched the Jacksons
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and Powell walk over to Jarmon, who also did not have a weapon. T.364.
Stancil attempted to break up the fight that ensued because he knew all the parties involved. T.365. Stancil testified that none of the fighters had any weapon of any kind during the course of the altercation. T.365-366. As Lewis had indicated, Stancil also said the fight broke up and re-started two or three times. T.365.
After the last time it broke up, Stancil observed a person come running up the street and shout “What the fuck are you all going to do now?” T.365, 366. The person “just started opening up and started shooting the gun.” T.367. The shots “sounded like firecrackers at first.” T.367. At the moment the shooting started, Stancil looked over his shoulder to see Torriano fall to the ground. Stancil did not see who shot him. T.367. Stancil immediately ran into a nearby store and asked the clerk to call the police. T.367-68.
7. The Police Investigation
Detective James Lonergan (“Det. Lonergan”) testified that when he arrived at the crime scene at about 1:45 a.m., he saw a large pool of red wet stain in the vicinity of 1157 East Delevan and approximately nine feet from the curb. He also saw four slugs on the ground. T.430. He learned from Officers Diegelman and Brown that they had already picked up 27 9-mm shell casings and a .32-caliber handgun and a copper-jacketed bullet. T.430. Officers Diegelman and Brown turned these items over to Detective Henry Smardz (“Det. Smardz”) was in charge of the evidence collection unit. T.455, 471. Officer Diegelman replaced the handgun in the spot where he had found it and evidence photographs were taken, depicting its location. T.432. Det. Smardz found that the four of the gun’s five chambers were empty, and one of the chambers contained a spent cartridge. T.458.
Detective John Vickerd (“Det. Vickerd”) attempted to interview the victims from the shooting (i.e., Aaron and Jarmon) at Erie County Medical Center. However, Aaron was in surgery. Det. Vickerd then learned of another witness, Sullivan, who was at Sisters Hospital. Det. Vickerd was advised by Sullivan that he could make an identification of the shooter. T.449. Sullvan described the shooter as approximately twenty-one years of age, six-feet-tall, 160 pounds, with short hair, and wearing a black and white jogging suit. T.453.
C. The Jury Verdict
The jury returned a verdict finding Dixon guilty of second degree (intentional) murder (with regard to Torriano Jackson) (New York Penal Law (“P.L.” § 125.25(1), count one)); attempted second degree (intentional) murder (with regard to Aaron Jackson) (P.L. §§ 110.00, 125.25(1), count three); third degree (reckless) assault (with regard to John Sullivan) (P.L. § 120.00(2), count eight); and criminal possession of a weapon in the second degree (P.L. § 265.03, count nine). At the time, there was no indication that any jurors indicated they did not individually assent to the verdict reached. Dixon was thereafter sentenced to consecutive sentences of twenty-five years to life on the murder count and eight and one-third to twenty five years on the attempted murder counts;
D. Post-Conviction Proceedings
The Appellate Division, Fourth Department, of New York State Supreme Court, unanimously affirmed Dixon’s conviction on direct appeal. The memorandum decision and order read, in relevant part, as follows:
Defendant contends that County Court denied him a fair trial by improperly
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permitting hearsay testimony into evidence, and then compounded the problem by giving a misleading limiting instruction to the jury. Specifically, defendant asserts that a prosecution witness [Sullivan] was permitted to testify, over objection, that he heard a person say “watch out, he’s got a gun”, and that another witness was permitted to testify, over objection, that he heard someone say “you better run, Tino is going to his car”. We agree that those statements were hearsay and should not have been admitted. Following a bench conference, the court gave a limiting instruction to the jury. The People concede that the court made a misstatement in its limiting instruction. The court’s limiting instruction was inadequate because it failed to advise the jury that it should consider the hearsay statements not for their truth, but rather, for the limited purpose for which they were received. Defendant, however, concedes that he did not object to the court’s limiting instruction, and thus the issue has not been preserved for review
(see,
[New York Criminal Procedure Law] 470.05(2)). Moreover, the errors in admitting the hearsay statements in evidence and in the limiting instruction are harmless in light of the overwhelming evidence of guilt.
Defendant further contends that the identification of him as the person who shot the victims is against the weight of the evidence. Three eyewitnesses positively identified defendant as the shooter. In addition, those witnesses testified that they knew defendant or had seen him on a number of prior occasions. The contention that defendant was misidentified as the shooter was rejected by the jury and its verdict is not against the weight of the credible evidence.
People v. Dixon,
214 A.D.2d 1010, 1011 , 626 N.Y.S.2d 900 (N.Y.App.Div. 4th Dept. 1995).
The New York Court of Appeals denied leave to appeal.
People v. Dixon,
87 N.Y.2d 900 , 663 N.E.2d 1260 , 641 N.Y.S.2d 230 (N.Y.1995).
Dixon filed an unsuccessful motion to vacate the judgment pursuant to New York Criminal Procedure Law (“C.P.L.”) § 440.10 in 2003, which is discussed further in Section II,
infra.
II. Timeliness of the Petition
A. The Statute of Limitations Period Under 28 U.S.C. § 2244 (d) (1)
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), codified at 28 U.S.C. § 2241
et seq.,
became effective on April 24, 1996. AEDPA governs the filing date for this action because Petitioner filed his petition after the AEDPA’s effective date.
See Lindh v. Murphy,
521 U.S. 320, 336 , 117 S.Ct. 2059 , 138 L.Ed.2d 481 (1997). Among other changes, AEDPA amended 28 U.S.C. § 2244 to include a new one-year period of limitations for habeas petitions brought by prisoners challenging state court judgments. 28 U.S.C. § 2244 (d) (1). The revised statute provides that the limitation period shall run from the latest of the following four dates:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized
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by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2244 (d)(1).
In most cases, a prisoner is required to file a federal habeas petition within one year of completing direct review of the habeas claims.
See
28 U.S.C. § 2244 (d)(1)(A). Dixon’s conviction was affirmed on direct appeal by the Appellate Division, Fourth Department, of New York State Supreme Court on April 28, 1995.
People v. Dixon,
214 A.D.2d at 1010 , 626 N.Y.S.2d 900 . Leave to appeal was denied by the New York Court of Appeals on December 7, 1995.
People v. Dixon,
87 N.Y.2d at 900, 641 N.Y.S.2d 230 , 663 N.E.2d 1260 . Dixon’s conviction became final 90 days thereafter, on March 6, 1996, when his time to file a petition for a writ of
certiorari
with the United States Supreme Court expired.
Fernandez v. Artuz,
402 F.3d 111, 112 (2d Cir.2005).
Habeas corpus petitioners like Dixon, whose state convictions were concluded by direct review prior to the effective date of the AEDPA on April 24,1996, were afforded a one-year grace period, until April 24, 1997, in which to file a § 2254 petition. Because Dixon’s conviction became final for purposes of 28 U.S.C. § 2244 (d) (1)(A) before the effective date of AEDPA on April 24, 1996, Petitioner was provided a one-year grace period for filing a timely habeas corpus petition.
Ross v. Artuz,
150 F.3d 97, 102 (2d Cir.1998) (“[I]n light of Congress’s selection of one year as the limitations period, we conclude that prisoners should have been accorded a period of one year after the effective date of AED-PA in which to file a first § 2254 petition or a first § 2255 motion.”). Thus, in the absence of tolling, Dixon had until April 24, 1997, or one year from the effective date of AEDPA, to file his petition for a writ of habeas corpus in federal district court.
Carey v. Saffold,
536 U.S. 214, 217 , 122 S.Ct. 2134 , 153 L.Ed.2d 260 (2002). However, Dixon filed his petition in federal court on March 28, 2005, nearly eight years after the grace-period expired. Thus, Dixon must avail himself of statutory or equitable tolling in order for his petition to escape dismissal as untimely under AEDPA.
B. Statutory Tolling
AEDPA’s statutory language specifically contemplates tolling of the limitations period in only one circumstance — when the petitioner has spent time pursuing properly filed state post-conviction or other state collateral review proceedings.
See
28 U.S.C. § 2244 (d)(2). AEDPA’s tolling provision states that “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation .... ” 28 U.S.C. § 2244 (d)(2). The Court has reviewed the procedural history of Dixon’s filings in state court to see whether the expired one-year grace period was tolled by any properly filed applications for post-conviction or other collateral review.
In the form habeas petition submitted to this Court, Attorney McPhee represented that Dixon filed one motion to vacate the judgment pursuant to C.P.L. § 440.10 on November 6, 2003, in Erie County Court.
See
Petition, ¶ 15(a)-(d) (Docket No. 1). Dixon asserted claims of ineffective assistance of trial counsel, newly discovered evidence, use of false evidence by the prosecutor, denial of rights under the compulsory process clause, and prosecutorial mis
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conduct.
See id.,
¶ 15(d) (Docket No. 1). This motion was denied without a hearing on August 30, 2004.
See
Erie County Court Order, attached as Exhibit B to Petition (Docket No. 1-7). Leave to appeal to the Appellate Division, Fourth Department, was denied on February 7, 2005 (Docket No. 1-7).
When respondent pointed out Dixon could not avail himself of statutory tolling under 28 § 2244(d)(2) because his 2003 C.P.L. § 440.10 motion was filed
after
the statute of limitations had run, attorney McPhee stated that Dixon actually had filed a C.P.L. § 440.10 motion sometime in 1998. McPhee states that when he sought to inquire on the status of the motion,
some five years later,
in 2003, he was told by the County Court that they had “lost” Dixon’s motion papers. Even if the Court were to accept that Dixon had filed a C.P.L. § 440.10 motion in 1998, that still does not assist him because the statute of limitations expired on April 24, 1997.
See Doe v. Menefee,
391 F.3d at 154 (‘When the AEDPA limitations period expired on November 19, 1999, Wall had not yet filed the § 440 motion, thereby losing the opportunity to invoke 28 U.S.C. § 2244 (d)(2)’s provision for tolling the limitations period during the pendency of a state post-conviction motion.”). Since Section 2244(d)(2)’s tolling provision is not applicable here, Dixon must attempt to avail himself of the doctrine of “equitable tolling”.
C. Equitable Tolling
“Although AEDPA does not provide that its limitations period may be tolled for any reason other than the pendency of a state post-conviction motion,
see
28 U.S.C. § 2244 (d)(2), in ‘rare and exceptional circumstances’ a petitioner may invoke the courts’ power to equitably toll the limitations period.”
Doe v. Menefee,
391 F.3d at 159 (quoting
Smith v. McGinnis,
208 F.3d 13, 17 (2d Cir.2000)
(per
curiam) (internal quotation marks and citations omitted in original)). To qualify for equitable tolling, the petitioner must establish that “ ‘extraordinary circumstances prevented him from filing his petition on time,’ and that he ‘acted with reasonable diligence throughout the period he seeks to toll.’ ”
Id.
(quoting
Smith,
208 F.3d at 17 ). The Second Circuit has “established only a limited number of circumstances that may merit equitable tolling, such as where an attorney’s conduct is so outrageous and incompetent that it is truly extraordinary,
see Baldayaque [v. United States],
338 F.3d [145], 152 [(2d Cir.2003)], and where prison officials intentionally obstruct a petitioner’s ability to file his petition by confiscating his legal papers,
see Valverde v. Stinson,
224 F.3d 129, 133-34 (2d Cir.2000).”
Doe v. Menefee,
391 F.3d at 160 .
11
Dixon has not alleged that his attorney’s conduct was “so outrageous and incompetent” as to be “truly extraordinary.” Nor has he asserted intentional interference with his filings on the part of prison officials or others in authority. Thus, Dixon has not demonstrated “extraordinary circumstances” as that term has been interpreted by the Second Circuit.
Although Dixon acknowledges the “reasonable diligence” requirement,
see
Pet’r
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Mem. at 7, he does not address it. I agree with respondent that Dixon failed to demonstrate reasonable diligence in the years after his conviction and sentence became final, thereby disqualifying him from receiving the benefit of equitable tolling.
See Baldwin County Welcome Center v. Brown,
466 U.S. 147, 151 , 104 S.Ct. 1723 , 80 L.Ed.2d 196 (1984) (“One who fails to act diligently cannot invoke equitable principles to excuse that lack of diligence.”);
Johnson v. Nyack Hosp.,
86 F.3d 8 , 12 (2d Cir.1996) (“Equitable tolling requires a party to pass with reasonable diligence through the period it seeks to have tolled.”). Dixon’s conviction became final on March 3, 1996, as noted above. Taking Dixon’s timeline as true, he did not file his first C.P.L. § 440.10 motion until 1998. He did not inquire as to the status of that motion until 2003, at which time he was purportedly told that he should file another motion since his original papers had been lost. Dixon’s one-year grace period under AEDPA expired one year before the 1998 motion and five and half years before the 2003 motion. Thus, Dixon’s time to file in federal court expired before he even commenced efforts to exhaust his claims of newly discovered evidence via a C.P.L. § 440.10 motion. On these facts, I cannot conclude that Dixon “acted with reasonable diligence throughout the period he seeks to toll.”
Doe v. Menefee,
391 F.3d at 159 . Therefore, I recommend finding that he cannot take advantage of the doctrine of “equitable tolling” as it is generally understood.
D. Equitable Tolling for “Actual Innocence”
Whether the United States Constitution requires an “actual innocence” exception to the AEDPA one-year statute of limitations on federal habeas petitions is a novel question of constitutional law.
12
No actual innocence exception to § 2244(d)(1) exists in the language of the statute itself, and the United States Supreme Court and the Court of Appeals for the Second Circuit have yet to endorse an actual innocence exception. The Second Circuit noted in
Menefee
that it has “reserved the question of whether a claim of actual innocence based on newly discovered evidence constitutes an extraordinary circumstance that merits equitable tolling, however, as well as the question of whether the Constitution would require equitable tolling for actual innocence.” 391 F.3d at 154 (citing
Lucidore v. New York State Div. of Parole,
209 F.3d 107, 114 (2d Cir.2000)). The Second Circuit has not yet decided the question of whether “considerations of justice mandate adopting the actual innocence gateway as a means of tolling AEDPA’s limitations period.”
Id.
at 161 (citing
Whitley v. Senkowski,
317 F.3d 223, 225-26 (2d Cir.2003)). The Second Circuit reasoned that it “should decide whether the Constitution requires tolling for innocence only in a case in which the petitioner can show that, because he can demonstrate his actual innocence, he would be injured if not entitled to tolling on this basis.”
Id.
(citing
Lucidore,
209 F.3d at 113-14 ). Thus, the Second Circuit has instructed district courts faced with untimely peti
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tions in which the petitioner asserts his actual innocence “to determine, in each case, whether the petitioner has presented a credible claim of actual innocence
before
ruling on the legal issues of whether such a showing provides a basis for equitable tolling and whether the petitioner must also demonstrate that he or she pursued his or her claim with reasonable diligence.”
Id.
(citing
Whitley,
317 F.3d at 225 ) (emphasis supplied). The Second Circuit determined that it did not need to decide the issue in
Menefee
because the petitioner had failed to adduce a credible claim of “actual innocence.”
Doe v. Menefee
also clarified that the “actual innocence” evidentiary standard articulated by the Supreme Court in
Schlup v. Delo,
513 U.S. 298, 324 , 115 S.Ct. 851 , 130 L.Ed.2d 808 (1995), applies in the tolling context. 391 F.3d at 161 (citing
Lucidore,
209 F.3d at 114 (applying Sehlup’s standard and concluding that petitioner had not demonstrated “actual innocence”)).
13
As the Second Circuit explained, the
Sehlup
court “carefully limited the type of evidence on which an actual innocence claim may be based and crafted a demanding standard that petitioners must meet in order to take advantage of the gateway,”
id.,
in that “[t]he petitioner must support his claim ‘with new
reliable
evidence — -whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical
evidence
— that
was not presented at trial[,]' ” id.
(quoting
Schlup,
513 U.S. at 324 , 115 S.Ct. 851 ) (emphases supplied). The Second Circuit explained that in light of Sehlup’s explicit requirement of reliability, “the habeas court must determine whether the new evidence is trustworthy by considering it both on its own merits and, where appropriate, in light of the pre-existing evidence in the record.”
Id.
(citing
Schlup,
513 U.S. at 327-28 , 115 S.Ct. 851 ). If the district court determines that the new evidence is. reliable, the next step is for the court to consider the petitioner’s claim of actual innocence “in light of the evidence in the record as a whole, including evidence that might have been inadmissible at trial.”
Id.
The Supreme Court.explained that the standard articulated in
Sehlup
is intended to focus the inquiry on actual innocence. In assessing the adequacy of petitioner’s showing ... the district court is not bound by the rules of admissibility that would govern at trial. Instead, the emphasis on “actual innocence” allows the reviewing tribunal also to consider the probative force of relevant evidence that was excluded or unavailable .... [W]e believe that Judge Friendly’s description of the inquiry is appropriate: The habeas court must make its determination concerning the petitioner’s innocence “in light of all the evidence, including that alleged to have been illegally admitted (but with due
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regard to any unreliability of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial.”
Schlup,
513 U.S. at 327 , 115 S.Ct. 851 (quoting Henry Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L.Rev. 142, 160 (1970));
accord Doe v. Menefee,
391 F.3d at 161 .
Following the Second Circuit’s instructions in
Menefee ,
I have first examined Dixon’s claim of “actual innocence” in light of the
Schlup
standard. After careful consideration, I recommend finding that Dixon has not met the stringent standard of required to demonstrate a credible claim that he is factually innocent of slaying Torriano Jackson and seriously injuring Aaron Jackson and John Sullivan as hereinafter set forth in Section IV. Therefore, this Court need not address whether equitable tolling in the case of “actual innocence” is constitutionally required.
IV. Petitioner’s Evidence of “Actual Innocence”
A. Lamarr Scott
The purported “confession” made by Dixon’s friend Lamarr Scott is fundamental to Dixon’s claim of actual innocence. In fact, Scott made six statements, all of which are different from one another.
14
The only statement which appears to have any reliability, in this Court’s opinion, is his sworn testimony before the grand jury, wherein he inculpated Dixon. In the remaining statements, Scott took the blame for the shooting but gave markedly different versions of the events in the various statements.
1. Scott’s “Confession” to the Media on August 12, 1991
a. Background
On August 12, 1991, two days after the shooting, Scott contacted the local news media at the behest of petitioner’s family and gave a statement taking responsibility for the shooting. When Scott subsequently testified before the grand jury, he explained to assistant district attorney Christopher Belling (“A.D.A,. Belling”) how Dixon’s father convinced him to confess to the shooting by misrepresenting how much time he would have to serve. Scott said that Dixon’s father coached him about what to say, and insisted that he speak to the media before even going to the police. The following excerpt from the grand jury transcript has Scott explaining the events leading up to his media “confession”:
Q: [D]o you remember going to the corner of Bailey and Delavan and talking with the news media?
A: Yes.
Q: And at that time you told the news media that you did the shooting, didn’t you?
A: Yes.
Q: Why did you do that?
A: Because I didn’t — the way it happened, you know, it happened so fast and I don’t think Tino meant to kill him but I was trying to help him as much as I can so he won’t get no twenty-five years to life. I didn’t want him, you know, to go to jail for that alone.
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Q: Weren’t you worried that you yourself would go to jail for twenty-five to life?
A: See, the way his father was coaching me and telling me I didn’t have any felonies and that would be my first felony or offense as an assault so he said all you could get is do six months or whatever and get five years probation. So I said well, that ain’t nothing. If that’s all I got to do to help him, you know, he won’t get twenty-five years, I’d do it, you know. But I didn’t know it was going to come down to all this.
Q: Now, eventually you also gave the police a sworn statement that same night?
A: Yeah, that same night.
Q: In the sworn statement to the police you told them that you did it?
A: Yeah, the same thing that I told them on the video.
Q: The news media?
A: Yeah.
MR. BELLING: Can I have this marked, please?
(Whereupon, a VIDEOTAPE was received and marked Grand Jury Exhibit 12.)
MR. BELLING: LaMarr, I want you to watch this, okay?
(Whereupon, a video tape was played for the Grand Jury.)
(Whereupon, a STATEMENT was received and marked Grand Jury Exhibit 13.)
BY MR. BELLING:
Q: Lamarr, who is that man she [the reporter] is talking to right there?
A: That was Tino’s [Dixon’s] father.
Q: Tino’s father?
A: Yes.
Q: The same guy who told you you [sic] could save Tino some time on this?
A: Yeah.
Q: [Y]ou’ve just seen the video played there which was Grand Jury Exhibits Number 13. Is it your sworn testimony at this time that you did not do the shooting but that Valentino Dixon did?
A: Yes.
Q: Now, I want to show you Grand Jury Exhibit Number 12. I’m sorry. I want to show you Exhibit Number 13. It’s a four page statement which you gave to the Buffalo Police on August 12th, 1991. Do you recognize your signature on the last page, LaMarr?
A: Yes.
Q: Is it your testimony at this time that this statement in which you also claimed to be the shooter is untrue?
A: Yes.
Q: You repudiate the statement you gave to the Buffalo Police Department on August 12th, 1991 which is here marked Exhibit 13?
A: What does repudiate mean?
Q: Repudiate means is this statement not true?
A: Yes.
Q: It is untrue, correct?
A: Yes.
Q: And the things you said about these guys riding around threatening you all day long as far as you personally know, you have no information about that because you came upon the scene just before the shooting?
A: Yes. I was informed that that’s what they were doing all day.
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Q: You were telling the news media what you had heard from others, correct? A. Yeah, from Tino’s father. He told me everything that, you know, the whole situation was from the West Side when they was coming from somewhere and a guy put a gun to his head. I don’t know if that was true or not. That’s what I was told.
Q: They supposedly put a gun to Antwan
15
Shannon’s [petitioner’s half-brother] head?
A: Yeah.
Q: Tino’s father told you that?
A: Yeah, he told me everything that was going on in like a half an hour. He told me I had a half an hour to get my little story together to tell the news. I kept telling him I didn’t want to go to the news. He said he wanted to go to the news anyway. He said that would help him a lot more, that they put it on the news.
Q: Did he ever threaten you to get you to go to the news?
A: Unh-nun [sic]. He never threatened me.
Q: He just sort of talked you into it by saying that you could afford to do the time, you probably would get less time than Tino would?
A: Yeah. He came to me. He told me, he said LaMarr, talking to me is like talking to Tino. Whatever you say to me, you know Tino is going to go with the same thing. He was my friend, Tino. That’s the only reason I did it. I wanted to help him but I see I can’t help him.
b. Transcript of Scott’s Videotaped Media Statement
Respondent has provided a copy of Dixon’s videotaped statement to the news media as well as a transcription of that statement, which is reproduced below:
Reporter: I’m Wanda Stark, and your name?
Scott: Lamarr Scott.
Reporter: And Lamarr, why did you call us?
'Scott: I’m calling to turn myself in because I don’t want my Mend to take the rap for something that I did.
Reporter: Okay, now, why don’t you back up and tell us exactly what happened.
Scott: Well, first of all, the guys that, um, the guy that did it, the guy that I shot, him and his friends were threatening us all day long. A couple of my Mends, a couple of my buddies, they were threatening us all day long, about what they were going to do to us, and things like that. The guy that’s dead, he’s known for having a trigger finger and, uh, I wasn’t sure if he was serious about the situation or not, so I rode home on my bike on Montana Street and came back with an Uzi that I have obtained on the street and I brought it back, not to, not to, uh, not to kill the guy or shoot him but just for self-protection, you know, because he has a trigger finger — he’s known on the streets for being a triggerfing — trigger happy person, you know. So, we’re all on the corner of Delavan and Bailey and the guy came back and they just, they opened fire, they jumped out the car,
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a yellow, um, Dodge Shadow,
16
with tinted windows. They jumped out the car and started shooting and so ... me, I was scared, you know, I didn’t know whether he was gonna, you know, kill anybody or not, you know, so I just, I opened fire back on him. I, I, the reason he died, because, I, I didn’t have any control of the automatic weapon at all and it was out of control and I panicked at the same time. That’s why I kept shooting him as many times as I shot him.
Reporter: Now, you said that you were threatened — what kinds of threats were they making and why were they threatening you?
Scott: They, because of, um, a situation that happened with a couple of my friends earlier in the day, and, uh, um, a couple weeks before that they put a gun to my friend ... they put a gun to my friend head a couple weeks before that. They said they were going to kill him ... to do something to him, you know, and [draws deep breath] I didn’t really take that to heart at the time, but then I took it to heart when I seen them guys riding around all day long and they kept saying they was going to do something to us — do something to us, you know, and its [sic] dangerous out here on the streets. You never know who’s going to shoot you or who’s going to do what to you, so I, I rode my bike home on Montana Street and I went and got the Uzi that I, that I have. And, I came back not to shoot anyone or to kill anyone — just to have it there, just in case something did happen, you know. So unfortunately, the guys that jumped out of the car and they started shooting first and I shot back at them not intending, not in ... not intentionally to kill anyone at all. It just happened that way, you know, and I’m apologizing to his parents and his, um, all his people that I’m sorry that I killed your son, but it was a situation that just happened, it was a self-protection type thing. I didn’t mean to kill anyone. He was either going to kill me or some of my friends and it was self-protection. I didn’t mean to shoot him, I didn’t mean to do anything wrong, but it just happened that way and I apologize.
Reporter: Can you be a little bit more specific about the situation that you’re talking about. You said that there was a situation ...
Scott: Yeah, they ...
Reporter: Prior ...
Scott: They were arguing, they were arguing with us earlier ...
Reporter: But, what were they arguing with you about?
Scott: Um, first of all, they were, it was, my friend, my friend was on the west side and they had got into an incident with my friend on the west side and they put a gun to his head and told him to get onto his knees.
Reporter: I know you said that, but you’re still a little vague — you’re not, I mean people have disagreements, arguments about something. I mean, what started all of this?
Scott: Well, well ... we were ... we were, um, coming out of a mini mall and the guys they seen us again and we didn’t say anything to us, and they said, you know, yeah, we gonna get them boys right there, we’re gonna
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get them, we’ll be right back. And one of my friends stopped them and said can I talk to you about it, you know, cause we didn’t want any trouble, we wanted no fight or nothing like that. He went over to the car and wanted to talk to him, but he said no, no, I don’t want to talk, no, forget that, I’m tired of people threatening me and stuff like that and I’m tired of, you know, I’m tired of people doing stuff that they doing to me and stuff like that, you know, so we went to the house. We went to one of my friend’s house down the street and was just chillin’ [sic] out there for a while and they kept riding back and forth so that’s when I went home and got the gun that I had.
Reporter: And you said you purchased that on the street?
Scott: Yes, I did.
Reporter: Have you ever been in trouble before?
Scott: No ma’am, no ma’am.
Reporter: And how old are you?
Scott: Nineteen.
Reporter: And do you work?
Scott: No, ma’am.
Reporter: Um, what prompted you to turn yourself in?
Scott: I didn’t want my friend to take a rap for something that I did.
Reporter: Did he do any shooting?
Scott: No, he didn’t, he didn’t do anything. He was just there [pause] and it was unfortunate that he was there because on the street, you know, um, police, police know him as a drug kingpin or as a person to be bad or whatever and he’s really not. I didn’t want him to get into any trouble that he don’t need.
Reporter: So, was this disagreement that you had with this other person, was it over drugs?
Scott: No, it wasn’t. I don’t, I don’t understand why they, why they were doing things that they did and why they kept messing with us all day long, you know what I mean. It was just an argument and for them to drive around with guns in their car and looking for us and stuff like that to do something to us was, was real silly of them, you know, cause we wouldn’ta [sic] did that to them, it was just an argument, it was just words trans — , transacted back and forth, but they took it to an extreme measure where they would go and look for us. It was like they was looking for trouble. It was like they provoked the whole thing.
Reporter: So, how many of, uh, were you, were there?
Scott: Of us?
Reporter: Yes.
Scott: Um, four of us.
Reporter: And, how many of them?
Scott: Um, three of them.
Reporter: Is there anything else you want to tell us, think we should know?
Scott: No, ma’am.
See also
Respondent’s Appendix of LaMarr Scott Statements.
The Court has watched the videotape and matched it to the transcript. In this Court’s opinion, the statement given by Scott to the news media does not have the ring of truth. Whether considered on its own or in conjunction with his other five statements, it is sorely lacking in credibility. In fact, it does not seem to be the statement of a person who actually witnessed the shooting; Scott is clearly stymied every time that the reporter asks him for details, such when she presses him about what he and the others were arguing
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about. Scott also appears to be looking to someone off-camera for prompting or help with his answers. In this Court’s opinion, it appears that Scott is making up his responses on the spot and not doing a very convincing job of it. Whenever Scott is forced to stray off his “talking points” (on which he clearly appears to have been coached), his answers become even more rambling, disjointed, and nonsensical. For instance, Scott describes Torriano as an individual whom he knew to be “trigger happy,” but he never repeats this alleged character trait in any of his subsequent statements. In addition, in his later statements, Scott states that he did not know Torriano before the incident.
Scott clearly cannot provide any substantive details about what actually happened. Scott is also peculiarly unable to provide details such as the nature of the threats allegedly issued by Torriano and his cohorts or the basis for the argument that led to the shooting. Scott clearly he appears to be fabricating a response when the reporter presses him to explain the genesis of the dispute. Moreover, Scott’s version of events, which has Torriano and his cohorts bursting out of Powell’s car with their guns blazing is in stark contrast to the description given by the prosecution’s six witnesses, who described a fistfight followed by a shooting. Although Scott says he “lost control” of the weapon, this is contradicted by the same six witnesses who describe the shooter standing over Torriano’s prone body and deliberately firing multiple rounds into him. Scott’s “confession” to the media, which is not consistent with Scott’s other “confessions” or with the trial evidence, cannot be viewed as “reliable” evidence under
Schlup .
2. Scott’s Statement to the Police on August 12, 1991
After Scott gave the interview to the news media, he went to the police station and was questioned by investigators there. Again, his statement to the police is lacking in the kinds of detail that one would expect from a person who had been at the crime scene:
Scott later gave a sworn statement to police, A.19-2-22, in which his entire description of the shooting is as follows:
Well, the guys came back, they jumped out of a yellow [Djodge [SJhadow and opened fire on me and my friends. I shot back in self-defense. After that I ran down the street and I threw the gun. I went home. That was it.
A.19. In this statement by Scott, only the victim, Torriano had a gun. By contrast, in his statement to the news media, Scott related that “they” jumped out of the car firing their guns, implying that not just Torriano was armed. In this statement, Scott for the first time describes Torriano’s gun with precision, stating that it was a “.38 silver gun with a nickel plate.” A.20. Scott told the police that Aaron did not have a weapon, which contradicts his media statement. A.21. This statement, as with Scott’s media statement, cannot be reconciled with the observations of the prosecution’s six eyewitnesses because it precludes the possibility of a fight preceding the shooting. In addition, in this statement, Scott denied walking up to Torriano to fire more bullets into him. A.21. Again, this conflicts with the six prosecution witnesses’ testimony.
3. Scott’s Grand Jury Testimony on January 13, 1992
Scott testified before the grand jury about five months after the incident, and named Dixon as the shooter under questioning by Erie County assistant district attorney Chris Belling.
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Q: Now, Mr. Scott, I want to call your attention to August the 10th of 1991 in the early morning hours shortly after midnight in the vicinity of Louie’s Texas Hots, Bailey and Delavan. Were you present at that area at the time that a shooting took place?
A: Yes.
Q: How did you get to the area that night?
A: I was driven. I was driven over there.
Q: By who?
A: One of my friends.
Q: What friend?
A: Valentino Dixon.
Q: You were in a car with Valentino?
A: Yeah.
Q: Which car?
A: The red Mazda RX-7.
Q: And that’s one of Valentino’s two ears, correct?
A: Yes.
Q: Did you know when you went over there that Valentino had been called by his half brothers [Brown and Shannon] to come over there because there was some trouble brewing?
A: He knew there was some trouble but I didn’t know what type of trouble it was.
Q: And when you arrived, where did you go?
A: To Mario Jarmon’s house.
Q: That’s 1122 East Delavan?
A: Yes.
Q: And who was at Mario Jarmon’s house when you got there?
A: Antwan [Shannon], Leonard [Brown], Mario Jarmon and that’s it.
Q: So then when you and Valentino got there, there were five people, correct?
A: Yes.
Q: Once you got there did you stay there for the rest of the evening or what happened?
A: No. We stayed there for about fifteen minutes. Then we walked to the store, walked down to the corner to get some beer.
Q: And the store you’re referring to is the drugstore type of place that is on the UB [i.e., University of Buffalo] side of that corner really, it’s on the same side of Bailey as UB and the same side of Delavan?
A: Yeah.
Q: Who also walked down there?
A: Me, Tino [i.e., Petitioner], Antwan, Mario Jarmon, Leonard.
Q: Leonard went down also to the store?
A: Yeah.
Q: What happened?
A: Well, some guy drove up in a yellow car and Mario, Mario Jarmon and Antwan got into it with Torriano Jackson, John Sullivan and Aaron. They started fighting and everything. Torn pulled out a gun and shot Mario three times and then Valentino shot Torri.
Q: Now, let me stop you a second. When you guys went up to the corner, did Valentino have the gun with him?
A: I guess he had it. I didn’t see the gun with him at the time when we walked to the corner because we was all laughing and giggling and
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everything. I wasn’t paying attention.
Q: Okay.
A: But the incident didn’t occur as soon as we got up to the corner. It occurred like twenty minutes after. We was sitting on the bench and drinking beer. They kept driving by and pointing their fingers at us like that. So Tino went into the store again. Then he walked back down to the house and again parked the car on the side of the driveway of the drugstore.
Q: Okay. Then it was after that that the shooting took place?
A: Yeah.
Q: I couldn’t hear you.
A: Yes.
Q: And Valentino Dixon did the shooting.
A: Yes.
Q: What did the weapon look like?
A: It was a Tech-9. It was similar to an Uzi.
Q: Nine millimeter and this weapon was fully automatic?
A: Yes.
Q: And you heard it fired full automatic that night?
A: Yes, yeah.
Q: Had you seen that gun before?
A: Yeah. I haven’t seen it with him but I seen it in magazines and stuff like that before.
See
1/13/92 GJ at 56-73 (Respondent’s Appendix of Grand Jury Testimony).
17
In the foregoing testimony, the description of events given by Scott conforms more to the description given by the prosecution’s witnesses in that a fistfight precedes the shoot-out. This lends credibility to Scott’s grand jury testimony.
4. Scott’s Interview with Petitioner’s Attorney Barbara Sims on January 15, 1994
Five months after Dixon was sentenced, on January 15, 2004, Scott agreed to give an interview on Dixon’s behalf for the purpose of making a motion to vacate petitioner’s judgment of conviction.
See
A.30-35 (Docket No. 1-2).
18
His description of the shooting given to petitioner’s attorney that day is as follows:
L.S. [Sjomebody said “there they go,” so [petitioner] turns around and walks back towards me. They stopped the car, Mario stood on the curb and was saying something to’em [sic], I don’t know what he said, and then Antoine and Leonard, they walked over to where Mario was at and they was all saying something. And then they jumped out of the car.
B.S. The Jackson boys?
L.S. The Jackson boys jumped out of the car, I still can’t remember how many jumped out of the car, and Mario was fighting them, I heard three shots, pow, pow, pow, and then it dawned on me that it was shots being fired. That’s when I reached up un
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der the car, not the car, reached up under the seat and pulled the joint out of the plastic bag and I was like which one is it? which one is it? which one is it? Leonard was like, right here, right here, right here, see, if it wasn’t for Leonard, I wasn’t familiar, I wouldn’t have known who Toriano [sic] Jackson was. Leonard was standing on the side.
B.S. I gotcha, I gotcha.
L.S. Leonard was standing on the side.
B.S. Where was, at this point, where was Tino Dixon?
L.S. Tino had, We wasn’t even thinking about Tino. Tino, When everything was over Tino was at his car.
B.S. OK. Well now was the store open at this point.
L.S. Yeah, the store was open.
B.S. And he went in and bought beer?
L.S. No. He didn’t buy the beer.
B.S. He went in to go buy the beer. I gotcha.
L.S. To go to the store. But he never even stepped in the store. His foot stepped in the door. Then somebody said, “there they go”. Then he walked back towards me. But I did see Tino. Tino had walked by me. He was in the middle of the street walking backwards like this looking at everything, and then I asked Leonard, “Which one is it? Which one is it? Which one is it.” And Leonard was like do right here, here you go do right there. Cocked the joint. I started shooting, ba, ba, ba [sic]. First I shot three times to spread the crowd cause I didn’t really want to shoot and Mario, I don’t know what happened to Mario and Taun [sic] but I thought I killed Mike Bland, I had seen him walk around the corner. I remember he had on a maroon sweat suit and a baseball cap, and some Nike sneakers, I remember because I had complimented him on the sweatsuit. So I know he had walked around the corner and Tino, I mean, Leonard, was like that’s him right there, that’s what it was like, so I sprayed in the crowd, everybody dispersed that way, and then that’s when I said which one is it, which one is it, and Leonard pointed me to Torian [sic], and I just started shooting, and after everything was over, I put the gun in my coat, and I started running like this and I got to the car, I put my hand on the car, I opened it, Tino was like, nuh-uh nuhuh [sic], ain’t getting into the car, ran back this way three houses, past Mario’s house, hopped the gate, hopped the gate, hopped the gate, first I put the gun up, then I chilled for a minute, then everybody was saying Mario’s dead, Mario’s dead, Mario’s dead.
B.S. Was Mario dead?
L.S. That’s what everybody was saying at first. I was like damn, damn, damn. So I hopped on my bike and jetted down Delavan going towards Grider Street, and I just went home.
B.S. Well, how did they get Tino for that?
L.S. ’Cause his car was there. His car was there.
B.S. You mean to tell me nobody saw that incident?
L.S. Yeah, people saw it. I just don’t understand how they got Tino for it anyway. First of all, I better let you know. How they got Tino for it too.
’Cause Tino had brought the red car. His white car was at home. He let somebody else drive his white car, and told the person that was driving the white car to bring the car back in front of Mario [sic] house. Have it back and have it back and have it back
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at the house by twelve o’clock tomorrow noon. So his car his Cadillac is sitting in front of Mario’s house. And the people of the incident was involved with Tino’s brothers. OK? So when he go back to get his car that next day, they arrested him because Tino never was seen.
B.S. Yeah, but what I can’t understand is, there were people, according to this, who gave testimony that night to the police. They gave statements to the police. John Sullivan gave a statement, Emile [sic] Adams gave a statement. How did they get so far off?
L.S. The reason why they got so far off like that is because there was so much confusion. There was so much confusion. Everybody was running this way. Everybody was running this way. However you explain that. You know as quiet as its [sic] kept, they didn’t even see Tino running to his car because there was so much confusion.
B.S. Well why did the police in your opinion feel that Tino was involved at all? Was it merely because he had a white Cadillac sitting there?
L.S. Because his Caddy was sitting there at that morning. That’s all they had to see.
B.S. Was that Cadillac.
L.S. Was that white Cadillac. Plus he got a reputation for carrying pistols. He had a reputation for shooting when he get [sic] drunk, stuff like that.
B.S. So nobody actually saw you fire the shot.
L.S. Nobody actually seen me fire the shots. I had my cap over. They seen me fire the shots. Yes, but didn’t see me.
B.S. OK. So the guy who testified that he’s hiding behind the church. He hiding. He’s gotten shot in the backside or someplace. He gets shot. He doesn’t realize it. I guess it was like in his hip or his thigh, and he’s watching you shoot Jackson while he’s down, he’s telling a lie?
L.S. Yes. He didn’t first, I’m gonna tell you, because there was too many people. OK. The yellow line was here. There’s another yellow line. Taurian [sic] was sprawled across the yellow line. First he was on his knees. Then when I popped in the head, he fell towards the yellow line. And then when I stood over him and pumped the rest of em [sic] in him, there was too much confusion, too many cars trying to get away. There was too much confusion. Too many people hollerin [sic] an [sic] screaming for them to really see me.
B.S. But wouldn’t they say that both people had a gun?
L.S. Tory [i.e, Torriano] had a gun and I had a gun. The police was playin [sic] with Tory’s gun.
B.S. Tory had a gun but not Tino.
L.S. Tino never had a gun.
B.S. I gotcha. I gotcha.
L.S. Tino never had a gun at all. Tory had the gun. The police was handling Tory’s gun.
B.S. Did they admit that it was their gun or no?
L.S. I don’t know if they admitted it was their gun or not. But see, and another thing that was wrong, Tory was moved from the spot that I killed him in. He was moved to the parking lot Now you can’t move a person that he had 18 or 20 bullets in his body. You cannot pick him up and move him to another spot. That’s how he died like that. He died from internal bleeding
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and multiple bullet wounds. But he died really from being move.
B.S. Who picked him up, do you know?
L.S. I think it was John Sullivan that picked him up.
B.S. I see. OK. Because John said he had him resting on his lap.
L.S. It was John Sullivan that picked him up, cause he was not supposed to be moved. So it was like, first, nobody never even seen me first because when I came up from under the seat with the gun and I took it out of the bag, ain’t nobody never seen nothing.
B.S. Well, when somebody asked you about this incident, somebody asked you about it, did you tell them the same thing you told me?
L.S. Yeah. Yeah. Yeah.
B.S. What did they say? How come they did never bring [sic], cause [sic] over here it said something about Tory, I mean Tino always getting somebody else to take the rap for him.
L.S. No. No. See, Tino wasn’t trying to get me to take the rap for him. What it was, I did it. But OK. They arrested Tino. OK. I’m like damn, what’s going to happen? So I went and turned myself in and I told them what happened. You know. We went to Central Booking. I told them what happened, and they told me they was like you going to come down there and lie, you want to be a trooper for the Dixon family, the next time get your lies straight. And I looked at him, like what is he talking about? Ain’t nobody in their right mind really going to come down here and turn his-self [sic] in for a murder. Evidently, I had to do it. I’m coming down here and turnin [sic] myself in, and I told you what’s going on and everything. You know what I’m saying?
B.S. OK. You never went down to police headquarters and made a statement.
L.S. Yeah.
B.S. You went down ...
L.S. Me and Leonard went down.
B.S. And you made a statement and they said they didn’t believe you.
L.S. Yeah, they said they didn’t believe me. It was like get the fuck out of here. We don’t believe you. Then they watched some videotapes because I turned myself into the news. So they watched the videotapes and kept seeing Tino’s father’s face on the video ... they was like who is this guy?
B.S. I gotcha. I gotcha.
L.S. So I was like I said that’s Tino’s father. They was like, Oh. So now we get it. Oh that’s Tino’s father. He came and got you. Gave you some money and said come down here and testify. I said they didn’t give me no damn money.
B.S. How much money is it worth? He hasn’t got that much. Right?
L.S. What you talkin [sic] about? That’s what a lot of people were saying. .Tino paid you off to say so and so, so and so, to take the rap, this and that, you know, startin [sic] to get to me.
19
B.S. OK. Alright. Now let me, let me, put it to you straight. If when I call you to testify in this case, are you going to tell them the same thing you told me without a doubt?
L.S. Yeah. Yeah.
B.S. You’ve told me the whole truth, right?
L.S. Yeah.
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See
Docket No. 1-2;
see also
Respondent’s Appendix of Lamarr Scott Statements.
I agree with respondent that Scott’s 1994 statement is “wildly inconsistent with his media and police statements,” Resp’t Mem. at 46 (Docket No. 15). Furthermore, it is jumbled, at times incoherent, and internally inconsistent. Recall that in Scott’s statement to the news media, he said that Torriano was well-known as a “trigger happy guy.” However, in the excerpt quoted above from the 1994 interview, Scott told Dixon’s attorney that he needed Brown to point out Torriano to him or else he would not have known who Torriano was.
Tellingly, Scott also incorporates several new details which were not mentioned in his earlier statements: He says that the police handled a gun (which Scott called “Tory’s gun”) and that Torriano was moved after he was shot. And here, nearly three years after the incident, Scott for the first time recalls that he stood over Torriano Jackson and pumped bullets into him (as described by the prosecution witnesses at trial). A.33. These facts only came out at Dixon’s trial, and — coincidentally — this statement by Scott was taken after Dixon’s sentencing hearing.
5. Scott’s Statement to the Defense Investigator on December 11, 1998
Four years later after his jailhouse interview with petitioner’s attorney, Scótt gave a statement to Roger Putnám (“Putnam”), a private investigator retained on behalf of the defense.
See
A.137-38;
see also
Respondent’s Appendix of Affidavits. It is unclear why the statement was given, although it appears to be an attempt to bolster the statements of Tamara Frida, a witness who allegedly had evidence favorable to petitioner. (Frida’s statement is discussed further,
infra.)
Scott told Putnam that “[t]he doors on both sides of the Shadow opened and everybody piled out. I think about six (6) guys got out of that car.” A. 138. In his media statement given two days after the shooting, Scott was certain that three individuals got out of the car. In his 1994 interview, Scott .could not remember how many individuals emerged from the car. To Putnam, seven years after the fact, Scott was certain that there were six individuals piling out of Powell’s vehicle.
Coincidentally, about five weeks earlier, Putnam had obtained a statement from Frida on petitioner’s behalf.
See
A.131-34. In her November 6, 1998 statement, Frida says she met Putnam, whom she did not know, after she testified at a perjury trial against Shannon and Brown — Dixon’s half-brothers who participated in the fight with the Jacksons. Frida told Putnam that she had witnessed the shooting and petitioner was not the shooter. She described the arrival of the Jacksons in Powell’s ear as follows:
I saw a car pull up on East Delavan headed east toward Bailey. The car stopped and a lot of guys got out of the car. I remember it did remind us of a clown car at the circus because so many guys got out of the car. The car was maybe 30 or 40 feet ahead of us. The corner of Bailey and East Delavan is well lit by street lights and lights for the parking lot. These guys, about 10 of them all went over to the number 12 bus stop on the north side of East Delavan west of Bailey. All of a sudden they converged on another group of guys and fighting broke out.
See
A.131-34. Frida’s description of the “clown car” arrival of the Jacksons was then substantially confirmed by Scott in his December 1 Ph statement to Putnam, when Scott indicates that “about six guys”
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got out of Powell’s car (which he states is a Dodge Shadow).
When he spoke with Putnam in 1998, Scott also offered a reason for having he retracted his initial confession, telling Putnam that he had only inculpated Dixon at the grand jury proceeding because of prosecutorial and police misconduct. Scott said he named Dixon as the shooter “because [he] felt [his] life was threatened because of the harassment done by Det. Stambach and the District Attorney Chris Belling.” Not surprisingly, Putnam did not ask any follow-up questions to elucidate this dramatic accusation. And, not surprisingly, Scott has never explained why he did not bring this alleged misconduct to light sooner.
As respondent points out, in Scott’s interview with petitioner’s attorney Barbara Sims given almost four years earlier, Scott was not asked about why he named petitioner in the grand jury. He
was
asked why he was not at the trial, and Scott said he was told by petitioner’s father and family to stay away, “Like they was [sic] hiding me from someone.” A 26. There was no mention'whatsoever of the supposed life-threatening “harassment” by the police and the district attorney’s office.
6. Scott’s Letter Dated February 27, 2002
Four years after speaking with the defense investigator, Scott wrote a letter on petitioner’s behalf addressed “To Whom It May Concern.” He apparently had it notarized on February 27, 2002.
See
A.140-41; Respondent’s Appendix of Lamarr Scott Statements. In pertinent part, Scott states that a few months after the shooting he was contacted by the prosecutor:
[Belling, the prosecutor] advised me that it was in my best interest to testify at the grand jury and say that Valentino Dixon committed the crime. I repeatedly refused to do so. After our meeting I found myself being harrassed [sic] by the lead detective in the case Mr. Mark Stambach. Who repeatedly made threats on my life if I didn’t come to the grand jury and testify. Eventually I went to the grand jury and recanted my original confession; and told the grand jury that Valentino Dixon committed the crime.
See
A. 140-41. Apart from Scott’s bald assertions, Dixon has come forward with no evidence to substantiate these contentions of misconduct on the part of A.D.A. Belling and Detective Stambach. In this Court’s opinion, Scott’s claims of coercion and threats on the part of the prosecution seem manufactured in an attempt to discredit his grand jury testimony naming petitioner as the shooter.
D. Petitioner’s Other “Exculpatory” Witnesses
1. Mario Jarmon
Apart from Scott, Jarmon (the third participant in the fight), was the most significant-person to give statements on Dixon’s behalf
20
Like Scott, Jarmon gave several
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differing accounts of the shooting. Immediately after the shooting, Jarmon told a paramedic what happened; in the hospital, he told a contradictory story to the police; and before the grand jury, he told a third version.
The first version, told to the paramedic, was that he had been shot in a drive-by shooting by an unidentified gunman. Resp’t Mem. at 49 (Docket No. 15) (citing PT.446-55).
21
No witness — -prosecution or defense — ever described the incident as a drive-by shooting, not even Jarmon in his subsequent statements. The next day, unable to speak because of a tracheal tube, Jarmon was interviewed at the hospital by the police. Then, he told a different version of events, indicating that he knew that Torriano had shot him, and that he did not see petitioner with a gun. A.213. As respondent points out, if Torriano had indeed shot him, Jarmon had no reason to lie to the paramedic about what happened, or to have withheld the identity of the shooter. On the other hand, respondent argues, “if Jarmon knew that petitioner had accidentally shot him before proceeding to execute Torriano, he had every motivation to disguise what really had occurred.” Resp’t Mem. at 49 (Docket No. 15). I-agree with respondent that when Jarmon’s later claim to be able to identify the shooter is undermined by his initial story, told to the paramedic, that he did not know who shot him and that it was a drive-by shooting.
Five months later, Jarmon told the grand jury yet another version of what took place, stating that Scott had killed Torriano. Jarmon testified that he, along with the Dixon’s half-brothers Brown and Shannon, confronted Aaron about allegedly having put a a gun to Shannon’s head a couple weeks before the August 10, 1991 shooting. 1/13/92 GJ.4. Aaron, who was just with Powell at the time, supposedly reacted by making threats and promising to be back. 1/13/92 GJ.5. A while later, both Jackon brothers and Powell drove past Jarmon’s house. 1/13/92 1/13/92 GJ.5-6. Jarmon paged Dixon, who came over. Scott did, too. 1/13/92 GJ.6-7. Scott had an automatic weapon, but Jarmon told him it would not be necessary, so Scott put it in the hallway. 1/13/92 GJ.7-8. The group went up to the corner to get beer where they saw Powell’s yellow car pull into the nearby parking lot, with someone inside pointing and waving a gun. Jarmon told the grand jury that this caused Dixon, Scott, and Shannon to run back to Jarmon’s house, leaving Jarmon alone. 1/13/92 GJ.8-9.
Jarmon saw Torriano come out of the car with a gun and Aaron come out with a knife or boxcutter.
Id.
The brothers came after Jarmon and tried to corner him, as Sullivan tried to break it up. 1/13/92 GJ.9. According to Jarmon, Torriano swung the gun and nicked Jarmon’s head and then shot him two or three times. Jarmon kept “coming at him” and hit Torriano and “threw him in the street.” 1/13/92 GJ.10. Aaron came at the Jarmon swinging the knife, but Jarmon was able to fight him off, too. Jarmon testified that Scott (who apparently had left the scene) nevertheless “heard the shots” being fired by Torriano and started shooting.
Id.
Jarmon then ran around the corner. 1/13/92 GJ. 13-14.
As respondent points out, there is no version of events told .by anyone in this matter, including petitioner’s witnesses, which can be reconciled with Jarmon’s grand jury testimony. Jarmon was subse
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quently indicted on four counts of perjury in the first degree-after he appeared before the grand jury investigating Dixon, and he was convicted in November 1992, following a joint trial with Brown, of falsely testifying that “LaMarr Scott was at the scene shooting a machine gun,” the “clear implication” being that Scott shot Torriano.
People v. Jarmon,
202 A.D.2d 965 , 610 N.Y.S.2d 118 (App.Div. 4th Dept.);
leave to appeal denied,
83 N.Y.2d 1004 , 616 N.Y.S.2d 485 , 640 N.E.2d 153 (N.Y.1994).
2. Leonard Brown
As noted above, Brown was petitioner’s half-brother. Brown gave a statement to police two days after the shooting. A.17. He said that two weeks previously, the Jackson brothers had confronted Brown’s half-brother Shannon. Torriano had a gun.. The Jacksons ordered Shannon to get on his knees. According to Brown, during the day before the shooting, Brown and Shannon saw Aaron Jackson and approached him. Shannon wanted to fight Aaron one on one, but Aaron refused, saying he was going to come back and “spray” all of them. When Brown and the others saw the car pass by a few minutes later, they contacted petitioner.
A while later the car with the Jacksons returned and five young men started beating up Jarmon. Jarmon was backing away from the fight, so Brown went up to help him, followed by Scott and petitioner. Then Brown heard shots, and saw that it was Scott shooting. Echoing Scott’s media statement, Brown told the police that “Lamarr must have lost control of the gun it just kept going off.” A.18. According to Brown, petitioner fled to his car and drove away. Brown and Shannon ran' to Jarmon’s house, and Scott ran off through yards. In a statement he would later contradict, Brown said he had seen nobody other than Scott with a gun. A.18.
Five months later Brown told the grand jury that during the day preceding the shooting, Brown and Shannon confronted Aaron because of the alleged gun incident two weeks before. Aaron said he was coming back to “smoke all of [them]” and left. 1/13/92 GJ.24-25. Brown and the others saw the car drive by Jarmon’s house. 1/13/92 GJ.25. Scott came on the scene and they told him about the incident, including the fact that “they” were going to come back and shoot. 1/13/92 GJ.24-25. Petitioner was not there, so Scott, Brown and Shannon walked up to the corner store. 1/13/92 GJ.26-27. They saw petitioner drive down the street and park. 1/13/92 GJ.28.
Scott left the group and returned with a package which he put behind Jarmon’s house. 1/13/92 GJ.28. While petitioner, Scott, Jarmon and Shannon walked to the corner to get some beer, Brown stayed at Jarmon’s house. 1/13/92 GJ.28-29. The yellow car containing the Jacksons pulled into the parking lot, and Brown saw four “of them”- run across the street. 1/13/92 GJ.29-30. Then petitioner, Scott and Shannon ran down the street to Jarmon’s house, while Jarmon stayed behind to fight all four “of them”. 1/13/92 GJ.30-31.
Contradicting his statement to police, Brown told the grand jury that Torriano, who was one of those fighting Jarmon, had a gun, and Brown heard him fire the gun twice. 1/13/92 GJ.31-32. Scott ran into the back yard, got a gun, and returned just as Torriano was firing his gun. 1/13/92 GJ.32. Brown recalled that Scott started firing everywhere. 1/13/92 GJ.34. At this point in Brown’s testimony, the prosecutor asked, “Did you see when LaMarr [Scott] ran up and stood over Torri and shot him while he was down on the ground?” Brown was evasive under extensive questioning by the prosecutor; the most he would admit was that Scott shot Torriano
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“while he was on the ground.” 1/13/92 GJ.34-36. Brown testified that Dixon ran down the street, jumped in his car and drove off. Brown and Shannon ran to Jarmon’s house on East Delavan, and Scott ran into a backyard before returning to Jarmon’s house. 1/13/92 GJ.36-37.
Brown told the grand jury that the machine gun that Scott used was shorter than petitioner’s own personal machine gun, and therefore the murder weapon used could not have belonged to petitioner. 1/13/92 GJ.38. Brown also testified that, after the incident, Scott had come over to petitioner’s family’s house. According to Brown, Scott said he was too frightened to go turn himself into the police, but he wanted to confess to the media. Petitioner’s mother then called the television station. 1/13/92 GJ.39-41, 54-55.
22
Brown subsequently was indicted on four charges of first degree perjury, and tried jointly with Jarmon, for testifying falsely to the grand jury that Scott had killed Torriano Jackson. His conviction was affirmed.
People v. Brown,
207 A.D.2d 962 , 617 N.Y.S.2d 662 (App.Div. 4th Dept.1994),
leave to appeal denied,
85 N.Y.2d 860 , 624 N.Y.S.2d 379 , 648 N.E.2d 799 (N.Y.1995).
3. Antoine Shannon
Shannon, petitioner’s brother, left Buffalo to attend college in Kentucky prior Dixon’s trial. When the prosecutor, A.D.A. Belling, traveled to Kentucky to interview him, Shannon gave a statement exonerating petitioner. The exculpatory statement, handwritten by the prosecutor, was taken on November 21, 1991. A.61-66. Shannon stated he was with his half-brother, Brown and his friend Jarmon, in a parking lot at East Delavan and Bailey before the shooting took place. A.61. Aaron Jackson was in Powell’s car. A.61. Shannon and Brown “had words” with Aaron. A.61. They started to leave and then Jarmon “had words” with Aaron. A.61. The three thereafter went over to Jarmon’s house and called petitioner. A.61. When petitioner arrived, they told him about the earlier argument with the Jacksons. A.62. Ten minutes later, Scott came over and he too was told of the argument. Scott then left, saying, “I’ll be back.” A.62. Scott returned fifteen minutes later with a long black gun inside a garbage bag. A.62. Scott showed Shannon the gun, then put it back in the bag and hid it. A.62.
Shannon, Jarmon and petitioner went back to the intersection of Bailey and East Delavan where Shannon saw Aaron and Powell in the car again, this time with Torriano in the back seat. A.63. Aaron had some words with Jarmon, causing Shannon and petitioner to step toward them after hearing the words. A.63. Aaron, followed by Torriano, exited the car. According to Shannon, Torriano had a silver .38-caliber gun in his hand and pulled something back on the top of the gun. A.63. Petitioner then grabbed Shannon and said “come on,” while Aaron rushed Jarmon and began fighting with him. A.63. As Shannon started to run away, he heard a shot. He looked back and saw Jarmon “jerk.” A.64. At the same time, Scott ran up to the melée and started shooting at Aaron. Shannon looked back at petitioner, looked again toward the shooting scene, and saw Torriano running away. A.64., Shannon said that Scott shot Torriano in the back. Torriano fell to the ground and Scott stood over him, firing shots into him as he lay in the street. A.64.
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Shannon then ran through Jarmon’s yard and eventually called a taxicab to take him home. Petitioner got into his car and drove away. A.64-65. Shannon, Brown, petitioner’s girlfriend, Shannon’s mother, and Shannon’s father, Robert Bryant, and all went to Scott’s house. The troupe then brought Scott to Shannon’s house where they discussed Scott turning himself in. A.65. A call was made to the television station to arrange to have Scott make his media statement. A.65. Three days after the shooting, Shannon left for college in Kentucky. A.65.
What is significant about of Shannon’s statement is the way it supports the justification defense that Scott made in his media and police statements. In Shannon’s version of events, as in Scott’s first two statements, Torriano emerged from the car, gun in hand, and began shooting immediately. Scott then immediately returned fire. Shannon offered the same, precise description as Scott had of Torriano’s gun — a silver .38-caliber handgun.
Shannon testified at the joint perjury trial of Brown and Jarmon. His testimony there was generally consistently with his police statement. PT.625-98. Respondent points out a strange incongruity in Shannon’s testimony that, in this Court’s opinion, undermines his overall credibility even further. Shannon stated that Scott was at best a casual acquaintance of his, but Scott whs not an acquaintance with either of Shannon’s brothers, petitioner, or Brown. PT.648-49, 674. According to Shannon, Scott was not “tight” with any of the three, or with Jarmon. PT. 674. Thus, if Shannon is to be credited, Scott went to get a machine gun, returned, and proceeded to kill Torriano despite barely knowing the group on whose side he was fighting.
As respondent notes, it is “impossible to reconcile” Shannon’s statement with any other version of events, except Scott’s media and police statements — and even Scott had stopped repeating the self-defense theory contained in those two appearances by the time he testified at the grand jury. Resp’t Mem. at 57 (Docket No. 15). At the grand jury, as noted above, Scott said that a fight preceded the shooting, during which Torriano pulled out a gun and started shooting. 1/13/92 GJ.63. Shannon simply is not consistent with the other witnesses claiming to exonerate Dixon. As respondent notes, if Torriano did not emerge from the car with his gun blazing, as Shannon stated, and if the fight was a protracted one, as all the other witnesses said or implied, then Shannon’s version of events cannot have been true. The fact that it dovetails with Scott’s first two statements to the police — the essence of which he later abandoned — supports the inference the petitioner’s actual innocence defense was “bogus from the beginning.” Resp’t Mem. at 57 (Docket No. 15).
4. Michael Bland
Michael Bland testified at the grand jury that he was standing in the parking lot at Bailey and East Delavan talking to a girl when the Jackson brothers ran up to Jarmon. Transcript of November 20, 1991 Grand Jury Proceeding 11/20/91 GJ.3-4. Aaron and Jarmon had words, but did not exchange blows. 11/20/91 GJ.4. Bland knew that Aaron did not have a gun because Aaron was waving his hands, but he could not say whether Torriano had a gun. 11/20/91 GJ.5-6. As he was wrapping up his conversation with the girl, Bland heard shots and immediately ran away. GJ 1.5, 7-8. The gunfire Bland heard was just “one kind of sound,” rapid firing as if from an automatic weapon. GJ 1.6-7. He did not see the shooting or the shooter because he ran behind a building. 11/20/91 GJ 5, 7-8. Bland stated that did not know petitioner or Scott, although he knew the
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Jacksons on what he described as a “hi, bye” basis. 11/20/91 GJ. 8-9.
Ten years after Bland’s grand jury testimony, defense investigator Putnam prepared an affidavit, dated May 23, 2001, in which he says he interviewed Bland in prison. According to Putnam, Bland said that he
did
see the shooter and it was not petitioner, it was Scott. A.121-22.
On July 14, 2005, Investigator Daniel A. Dill of the Erie County District Attorney’s office interviewed Bland and showed him the Putnam affidavit. After reading it, Bland disavowed what Putnam had said. Investigator Dill then prepared an affidavit memorializing Bland’s statements to him: “ ‘This is Roger Putnam’s affidavit not Michael Bland’s. I stand by everything I testified to in court [the grand jury] regarding the Valentino Dixon case.’ ” Affidavit of Daniel A. Dill, dated July 14, 2005.
5. Walter Lee Dennis
Four days after the shooting, fifteen-year-old Walter Lee Dennis gave a statement to a private investigator who worked for Sean Dennis Hill, Esq., who was then representing petitioner. A.41-57. Dennis related that he knew petitioner and Brown. Brown was “with” Dennis’ sister and was “like” Dennis’ “brother-in-law.” A.45, 48. As noted above, Brown is petitioner’s half-brother.
Dennis said that on the night of August 10, 1991, he was at Bailey and East Delavan and witnessed the incident. He saw petitioner running away during the shooting. A.45-46. Dennis also saw Jarmon, because when Jarmon got shot, Dennis grabbed Jarmon’s hand and helped him after Jarmon was around the corner out of sight of the shooting. A.49-50. Dennis stated that he comforted Jarmon, who was calling Dennis’ name. When Dennis was asked if Jarmon said who shot him, Dennis related that he told Jarmon to be quiet because talking would only make the pain worse. A.57. Dennis said he saw the gunman run away after the shooting. A53. Dennis also said that “someone was shooting over there with a .22. The one that shot Mario [Jarmon].” According to Dennis, the shooter with the .22 was shooting in his (Dennis’) direction. A.54. Dennis did not explain how he knew that the person with the .22 was the one who shot Jarmon, or how he knew the gun was a .22.
Dennis said that after the crowd dispersed, he saw the police pick up a pistol off the ground, and he remembered seeing a yellow Geo at the scene. A.55. When asked by the investigator how it became known that he saw the entire incident, Dennis stated that Brown asked Dennis if Dennis had seen anything, and when told that Dennis had, Brown directed Dennis to the investigator. A.56.
Dennis’ statement contains several different aspects that are inconsistent, and the statement itself is curiously incomplete for a supposed eyewitness. As respondent points out, it sounds as if Dennis is parroting petitioner’s talking points — such as his observation of the police picking up a pistol off the ground and his accurate description of the car as a yellow Geo — while Scott, the alleged shooter, mistakenly refers to it as Dodge Shadow. I agree with respondent that Dennis’ story lacks any indicia of reliability.
6. Wendell Williams
On May 28, 1992, fifty-two-year-old Wendell Williams (“Williams”), an unemployed resident of Buffalo, gave a statement to a private investigator retained by petitioner. The statement was conducted in the presence of petitioner’s parents. A.67-99. Williams related that n the early morning hours of August 10, 1991, he was exiting the hot dog shop at Bailey and East Delavan. A.72. Williams had just
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bought six hot dogs for himself and friends, and was going to deliver them to the house right next door to Jarmon’s on East Delavan. A.72-74; 1/13/92 GJ at 5. As Williams was leaving the shop, he heard two men arguing near a yellow car, and someone threatening to kill someone else. A.76-81. Williams described the man who was being threatened as a “little guy,” about five feet five or five feet six, and weighing one hundred forty or one hundred forty-five pounds. A.86. The person doing the threatening suddenly fired three shots, the only shots Williams heard that night. A 76, 88-90, 91. Williams clambered into a nearby dumpster. A 88-89, 91-92. He heard no other shots thereafter, as he ran back to the house next door to Jarmon’s. A 93. Williams was shown a photograph by the defense investigator, which the investigator identified as petitioner’s. Williams stated that petitioner was not the man who threatened to kill the “little guy” and then fired three shots. A.90-91, 95.
Although Dixon has presented Williams’ statement as proof that he did not murder Torriano, it is difficult to discern why Dixon believes Williams to be such a favorable witness.
See
Pet’r Br. at 4. As respondent points out, what Williams said bears essentially no resemblance to any other witness’ version of what happened. Indeed, Williams does not even seem to be describing the shooting that occurred.
7. Floyd Fisher
Floyd Fisher (“Fisher”) testified at the perjury trial on behalf of Brown and Jarmon. PT.572-601. Fisher was a childhood friend to both Jarmon and to Brown, petitioner’s half-brother, a connection which significantly undercuts Dixon’s assertion that Fisher was an “objective” witness.
23
In any event, Fisher said he was in his car driving by the intersection of Bailey and East Delavan in the early morning hours of August 10, 1991, when he saw some “guys” run up to his Jarmon. Fisher pulled up in his car to tell “them” to “stop beefing.” PT.575-76.
Fisher then continued driving. He heard a shot, and in his rear view mirror saw a man running. He heard another shot, and then saw a man fall down in the street. After the second shot, Fisher pulled off to the side of the road to take a look. At first, Fisher testified that he did not think the shots were real rounds, and that he really was not “aware of the sound” of the shots. PT.576-80. Later, Fisher contradicted himself, testifying that the first shot sounded like it came from a revolver and the subsequent shots sounded like automatic gunfire, testimony which was consistent with the petitioner’s story. PT.583-84. Fisher stated that the shooter of the person who fell in the street was big and stocky, although Fisher did not identify who the shooter was. PT.578, 581-582. The jury rejected Fisher’s testimony and convicted Brown and Jarmon of first degree perjury, as noted above.
8. Tamara Frida
Frida testified at the perjury trial of Jarmon and Brown on November 4, 1992. She stated she was in her car, a red Geo Tracker, near Bailey and East Delavan in the early morning hours of August 10, 1991, when she saw a fight break out “between a lot of individuals.” PT.313. Frida did not observe weapons of any kind being used in the fight, and Frida saw no gun-flashes during the fight. PT.313-14. At some point she heard gunfire coming
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from down the street, toward the fight. PT.314. She did not hear single shots; rather, the shots sounded like firecrackers. PT. 320-21. As soon as the gunfire started Frida got out of her car, ran around to the back and “took cover” on the ground, putting her hands over her head. PT.315, 320. When the gunfire stopped, she got up and left in her car. PT.315. Frida was not asked by either the prosecutor or the two defendants if she knew who the shooter was.
Shortly afterward, Frida talked to a police officer at the scene but said she saw nothing because she was “afraid to become involved.” She later heard petitioner was arrested for the crime, and knew petitioner was not the shooter,- but said nothing to anyone. She received a subpoena. for the grand jury from the District Attorney but also told the District Attorney’s office she saw nothing because she was afraid to become involved, although she did testify at the subsequent perjury trial of Jarmon and Brown. A.132.
Six years later, in 1998, she had a chance encounter with defense investigator Putnam at the Buffalo courthouse. Frida states,
[M]y ex-boyfriend was on trial in September 1998. I testified in that trial and met Private Investigator Roger Putnam. After my testimony Mr. Putnam gave me a ride to Buffalo State-College where I am attending college. Since I had told him that one of my courses was Criminal Justice he asked me if this trial was my first encounter with the Criminal Justice system. I at that time I told him that I had witnessed a shooting some years ago. He was familiar with the case and asked me if Tino Dixon was the real shooter. I told him no[,] that Lamarr Scott was the real shooter. I knew what Tino looked like and the guy I saw shooting Torrey Jackson was not Tino Dixon. I did not know who Lamarr Scott was until I met him some months later. Mr. Putnam asked me why I did not come foxrward before when the investigations and trials were going on and I told him I was scared to death.
A.133-34. Frida gave a sworn statement to Putnam, part of which is quoted above. She avers that she was parked on East Delavan facing Bailey when a car pulled up and “about 10 guys” got out.
Id.
They converged on another “group of guys” and a fight broke out. After three to five minutes, Frida states, a “guy wearing sunglasses” approached with a gun. He raised it up, shouted at the crowd, and fired a single shot. Torriano started running toward Frida’s car, and was followed by the gunman shooting at him in rapid fire. Torriano fell and the shooter stood over him continuing to fire. The shooter finished and ran west on East Delavan. A. 131-132.
Respondent indicates that six years after her encounter with Putnam, Frida was interviewed in July 2004 by the Bxxffalo News, and allegedly refused to give her name for the article because she was “fearful of retribution, given that so many of the people at the scene of the shooting that night had been tied to drugs and violent crimes.” A.239. Later in the article, she is alleged to have said she was scared to say anything at the time of the shooting because she was worried that if the shooting were drag-related her house would get fire-bombed. A.240. She also points out that Brown and Jarmon were convicted of perjury for saying Scott killed Torriano Jackson. A.240.
There are several anomalies surrounding Frida, in this Court’s opinion. First, it seems very odd that seven years after the shooting, and after consistently denying all knowledge, Frida would just casually reveal her knowledge of petitioner’s inno
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cenee to him during a chance meeting with Putnam, a total stranger. It is equally curious that Putnam, who purportedly was unknown to her, was not only able to get her to overcome her extreme fear of discussing the incident but also had her sign a sworn statement, under the penalties of perjury. Doing so could only have exposed Frida to the same danger of retribution that she believed she faced on August 10,1991, were she to get involved.
Respondent points out what while Frida was expressing her fear of disclosing her identify to the newspaper in July of 2004, the 1998 sworn statement she gave to Putnam — which contains her name — had been a public record for many months, since it had been filed in support of petitioner’s motion to vacate judgment. It is odd that while the newspaper reporter apparently knew of the motion and the supporting documents, he nevertheless agreed to hon- or Frida’s request for anonymity despite the fact that Frida’s sworn statement was public and her name was liberally used in petitioner’s C.P.L. § 440.10 motion to vacate the judgment, just as her name is freely used in the instant habeas petition.
Another incongruity is that in the 2004 newspaper article, Frida stated that she had known Scott while they were in grammar school together. A.240. However, when she talked to defense investigator Putnam six years previously, she said she did not know Scott until she met him several months
after
meeting Putnam. This is a glaring inconsistency. Curiously, Frida did not describe to Putnam the circumstances of how she met Scott.
In addition, Frida identified the shooter as wearing sunglasses. No other witness describes shooter as wearing sunglasses. If the shooter had been wearing sunglasses, it would seem to be a sufficiently noteworthy detail for more witnesses to remember.
Like the story offered by Williams, the man buying hotdogs at the time of the shooting, Frida’s story simply does not make sense. It is quite difficult to believe that she would stand by silently while Dixon, whom she purportedly knew to be an innocent man, was charged, convicted, and imprisoned, based only upon her notion that she might be subject to retribution by persons unknown for reasons unknown. Her explanation for waiting so long to come forward with her testimony exonerating Dixon is not credible. As respondent points out, Frida had nothing to fear from implicating Scott, who had confessed to the media two days after the shooting. If petitioner were innocent, then she had nothing to fear from him in naming someone other than him as the shooter. On the other hand, if Frida
did
see petitioner shoot Torriano, her fear of coming forward would be more logical. Regardless of what Frida’s rationale was, the Court believes she is lacking in credibility as witness.
9. Anthony Watkins
In an article dated July 25, 2004, a Buffalo newspaper printed a story asserting that Anthony Watkins had come forward to exonerate petitioner based his having read several articles that appeared in the paper a few weeks before. Watkins told the reporter that he was at the nearby hot dog shop when the shooting took place. Watkins allegedly heard two shots from a gun that was
not
a .22, followed by automatic fire from a Tech-9. A.242-43. Watkins told the reporter that he knew petitioner from high school, and petitioner was not the shooter. He was certain of this because he saw petitioner ducking down during the shooting. Because he was ducking, Watkins reason, it was impossible for petitioner to have been the shooter. A.241. The article did not explain why
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Watkins needed to deduce that petitioner was
not
the shooter.
Watkins is quoted as saying that he did not come forward at the time with his helpful testimony because, as a teenager, he “didn’t feel that anyone would listen to him.” A.241. Watkins is also quoted as saying, at the end of the news story, “They were out to get him ... I think they knew it [was an injustice]. They didn’t care.” A.243 (alteration by reporter in original news article). The article is silent as to why Watkins did not come forward when he was no longer an adolescent. It is very odd that Watkins, who had known petitioner from childhood, and knew he was purportedly an innocent man, allowed him to l

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2156489. Public record. Not legal advice.