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November 13, 1992

DONALD WALKER, Petitioner,
HUBERT J. SPECKARD, Superintendent, Groveland Correctional Facility, Respondent.

The opinion of the court was delivered by: CAROL E. HECKMAN

 Pursuant to 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings, including entry of final judgment. For the following reasons, Petitioner's request for habeas corpus relief pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed in its entirety.


 During the early morning hours of September 2, 1987, Petitioner and Ronnie Simmons got into an altercation in the upstairs apartment of Seabra Cortez at 293 Pennsylvania Avenue in Buffalo, New York, which resulted in Petitioner stabbing Simmons (T. 47-55, 83-93, 112-120). *fn1"

 On January 15, 1988, Petitioner was indicted by the Erie County Grand Jury for one count of assault in the second degree (a class "D" felony under New York Penal Law § 120.05(2)) and one count of criminal possession of a weapon (a class "A" misdemeanor under Penal Law § 265.01(2)). Exh. C. *fn2"

 A jury trial commenced on May 31, 1989, before Erie County Court Judge Rose LaMendola. The trial court first heard Petitioner's Sandoval3 motion, and ruled that should Petitioner elect to testify at his trial he could be cross-examined about a 1977 conviction for first degree robbery, since "it does go to the issue of credibility . . ." (T. 10). The trial court also allowed limited inquiry into a 1985 conviction for third degree assault and a 1986 conviction for attempted assault. The trial court disallowed any inquiry into a 1977 conviction for sexual assault (T. 10-11).

 The testimony at trial revealed different versions of the September 2, 1987 incident. Ronnie Simmons testified that he lived in the lower apartment at 293 Pennsylvania Avenue, and on that date had gone upstairs to Seabra Cortez' apartment to confront Petitioner about the necklace. According to Simmons' testimony, what started as a discussion in the living room developed into a fist fight, which continued into the kitchen. Simmons pinned Petitioner against a kitchen cabinet, whereupon Petitioner admitted that he had the necklace. When Simmons stepped back, Petitioner grabbed a knife from the dishes that were drying on the kitchen sink and began swinging it at Simmons. While trying to swing back at Petitioner, Simmons felt the knife enter the left side of his abdominal area. Simmons testified that Petitioner put the knife under his jacket and ran out the door (T. 47-55).

 Seabra Cortez testified that Petitioner and Simmons came to her apartment together and sat down in the living room. They started to talk, and then began fighting and "tussling" into the kitchen. Petitioner leaned back against the sink, and Simmons backed up. She saw Petitioner move toward Simmons with a knife in his hand, and she saw that Simmons had been "cut." She testified that Petitioner then left her apartment with the knife (T. 83-88).

 Petitioner testified that Simmons had come to his home at 217 Hudson Street at approximately 11:45 p.m. on September 1, 1987 to discuss the necklace. They left together and went to Ms. Cortez' apartment in an attempt to "straighten out the matter." According to Petitioner, during their discussion in Cortez' living room, Simmons punched him in the face, breaking his dentures and his glasses and causing a cut under his eye. Petitioner testified that he attempted to restrain Simmons, and the struggle continued into the kitchen where Simmons was choking Petitioner against the kitchen sink while telling him "I'm going to kill you . . . ." Petitioner grabbed the knife and stabbed Simmons. He testified that he threw the knife on the counter and walked out of the apartment (T. 115-20).

 On June 1, 1988, the jury found Petitioner guilty on both counts of the indictment. Petitioner was sentenced to an indeterminate prison term of 3 1/2 to 7 years on the second degree assault charge, to be served concurrently with a one-year sentence on the weapons charge.

 Petitioner moved to vacate the judgment of conviction (Exh. J), and the trial court denied this motion (Exh. P). The Appellate Division denied leave to appeal this order (Exh. Y).

 On December 21, 1990, the Appellate Division affirmed the judgment of conviction, finding that the trial court properly refused to charge the jury on the lesser included offense of third degree assault since Petitioner's own testimony negated any claim of reckless conduct. People v. Walker, 168 A.D.2d 983, 984 (4th Dept. 1990). The appellate court also found that Petitioner failed to object to the trial court's charge on intent and thus failed to preserve that issue for appeal. Id. Finally, the appellate court found that Petitioner's contention that the 12-year-old robbery conviction was too remote to be used on cross-examination could not be heard on appeal since that issue was not raised in the Sandoval hearing. Id.

 On February 21, 1991, the New York State Court of Appeals denied leave to appeal. 77 N.Y.2d 883 (1991). Petitioner was incarcerated at Wende Correctional Facility when he filed the instant petition pro se on April 23, 1991. Item 1. An amended petition was filed on his behalf on January 29, 1992. Item 15.

 The amended petition sets forth three grounds for habeas corpus relief: (1) improper admission of Petitioner's prior conviction for robbery; (2) improper jury charge on intent; and, (3) failure to charge the jury on the ...

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