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JACKSON v. SENKOWSKI

February 27, 1993

LANCE JACKSON, Petitioner,
v.
DANIEL SENKOWSKI, SUPERINTENDANT, Respondent.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK U.S.D.J.

 Lance Jackson filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 asking that his state court conviction for assault, robbery and criminal possession of a weapon be set aside. The chief claim made in the petition is that petitioner was wrongly convicted because contrary to the prosecution's contentions, he was the victim of an attack by the prosecution's complaining witness rather than the aggressor.

 On January 25, 1993, I directed that the transcript of the trial and other materials including the police reports concerning the incident involved be provided. By letter of February 22, 1993 the District Attorney of Westchester County, representing respondent, has objected to the portion of the January 25, 1993 order directing production of the police reports on the ground that petitioner raises no claim of withholding of exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), that other issues raised by the petition must be evaluated based on the trial record, and that in any event a review of the police reports by the District Attorney reveals no "material and exculpatory material." *fn1"

 Because petitioner is acting pro se, I interpret the claims made in the petition to embrace the legal characterizations applicable to the factual allegations he makes, even though those are not set forth in technical legal language. The trial transcript furnished by the District Attorney indicates that petitioner's claim of having been the victim rather than aggressor in the confrontation involved is not based on any of the evidence at trial. I accordingly conclude that petitioner is necessarily asserting that material and exculpatory evidence indicating that petitioner was not the aggressor was withheld by the prosecution in violation of Brady.

 I am not required to accept the District Attorney's conclusions concerning whether the police reports do or do not contain any exculpatory material as defined under Brady;, but I am prepared to examine the reports in camera if the District Attorney contends that their revelation to petitioner would jeopardize any person or ongoing investigation. See United States v. Zolin, 491 U.S. 554, 105 L. Ed. 2d 469, 109 S. Ct. 2619 (1989).

 Inasmuch as I find that a Brady claim is asserted in this case, however inarticulately, I overrule the objection to the portion of my prior order concerning police reports, and direct that all police reports pertaining (1) to the incident on which the prosecution of petitioner was based, (2) to petitioner, or (3) to the complaining witness, be provided to me.

 SO ORDERED.

 Dated: White Plains, N.Y.

 February 27, 1993

 SO ORDERED.

 VINCENT L. BRODERICK, U.S.D.J.

 ATTACHMEN ...


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