Dixon v. Conway (613 F. Supp. 2d 330, 2009)

ORDER

RICHARD J. ARCARA, Chief Judge.

This case was referred to Magistrate Judge Victor E. Bianchini, pursuant to 28 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, 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 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. 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. Aaron was 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.” T.221. 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. 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 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?

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 approach 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 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”); 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 Attorne/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 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 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. 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. 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.

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 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 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 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 misconduct. 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. 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 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. 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 petitions 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”)). 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 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. 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.

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.

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 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