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June 15, 1993

HUBERT J. SPECKARD, Superintendent of Groveland Correctional Facility, Respondent.

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

 In this petition for habeas corpus relief under 28 U.S.C. § 2254, the parties have consented to having the Magistrate Judge conduct all proceedings in the case, including entry of final judgment.

 For the reasons set forth below, the Petition is dismissed and final judgment is entered in favor of Defendant.

 Petitioner, Terrance Jones, was indicted in November, 1983, along with his brother, Kevin Jones, for one count of attempted murder in the second degree and two counts of assault in the second degree. The charges stemmed from a fight which took place in Niagara Falls, New York in the early morning hours of October 2, 1983. In January, 1984, following the death of the victim, the attempted murder charge was changed to murder in the second degree.

 On August 5, 1985, Petitioner was convicted of first degree manslaughter and third degree assault following a jury trial in New York State Supreme Court, Niagara County. He was sentenced to 9 to 18 years on the manslaughter conviction and one year on the assault conviction, with the sentences to run concurrently. On direct appeal to the Appellate Division, Fourth Department, Petitioner's sentence was vacated, his conviction, as modified, was affirmed and the case was remanded for resentencing. People v. Jones, 134 A.D.2d 915, 522 N.Y.S.2d 70 (4th Dept. 1987). The trial judge resentenced Petitioner to the same 9 to 18-year indeterminate term. On May 19, 1988, the Court of Appeals denied leave to appeal. People v. Jones, 71 N.Y.2d 1028, 530 N.Y.S.2d 563 (1988).

 On June 29, 1988, Petitioner filed this action. He raises two grounds for relief in his amended *fn1" habeas corpus petition: (1) failure to instruct the jury on manslaughter in the second degree as a lesser included offense and (2) improper jury instruction on accessory liability.


 At Petitioner's trial, the witnesses testified as follows:

 The Testimony of Sammy Ollison

 Sammy Ollison testified that he met Petitioner for the first time on October 2, 1983, as he was going into the Game Room bar on East Falls Street in Niagara Falls, New York (T. 235). *fn2" Ollison bought Petitioner a beer, and Petitioner asked for a ride across town (id.). Ollison and Petitioner left the Game Room, and got in Ollison's car. They drove about a half-block to Ollison's house on Memorial Parkway, where Ollison picked up his reading glasses (T. 235-37). Ollison turned the car around and drove back in the direction of East Falls Street. At Petitioner's request, Ollison stopped at Brother's Bar, on the corner of Memorial and East Falls (T. 237). Petitioner went into the bar and Ollison went over to speak with Keith Sylvester who was standing near his car with his sister, La Veda Sylvester (T. 238).

 Five minutes later, Petitioner left the bar and asked Ollison if he was ready to leave (T. 241). As Petitioner and Ollison were walking away from Keith Sylvester's car, La Veda Sylvester said something to Petitioner (T. 242). Petitioner turned back toward Ms. Sylvester and knocked her down, saying "bitch, leave me alone" (T. 242). Keith Sylvester and Petitioner then began fist fighting and wrestling, ending up in the middle of East Falls Street (T. 243).

 La Veda Sylvester was leaning over Keith, who said to Petitioner "you done killed my brother" (T. 247). Ollison testified that Petitioner hit La Veda Sylvester with the board, knocking her out of the way, and then Petitioner proceeded to hit Keith Sylvester with the board "ten or twelve times" (T. 248-49). He then threw the board into the field and walked toward the parking lot of the County Building (T. 249).

 On cross-examination, Ollison testified that he had been close friends with Keith Sylvester for over 20 years (T. 253). He also testified that he never saw a knife at any time during the incident (T. 274), nor did he ever see Petitioner's brother Kevin Jones (T. 292-93).

 The Testimony of La Veda Sylvester

 La Veda Sylvester testified that when she first saw Petitioner he asked her if she wanted "some reefers". She told him no, she already had some. Petitioner said "f--- you, bitch," and walked away. She testified that she was walking by Ollison's car when Petitioner came up to her and punched her in the face, knocking her down (T. 316).

 La Veda Sylvester testified that her brother Keith Sylvester began arguing with Petitioner. Keith Sylvester then got into Ollison's car with La Veda Sylvester and another woman named Cloriss. Petitioner opened the car door and cut Keith Sylvester's face. Petitioner then pulled Keith Sylvester out of the car, and Kevin Jones jumped on Keith's back. La Veda Sylvester got out of the car and pulled Kevin Jones off her brother. Kevin Jones and La Veda Sylvester were struggling while Petitioner and Keith Sylvester were fighting in the street (T. 317-18).

 La Veda Sylvester got away from Kevin Jones and got into Ollison's car to try to run down Petitioner. The car stalled, and Petitioner pulled La Veda Sylvester out of the car. He then went back over to Keith Sylvester and continued to hit him (T. 318-19). La Veda Sylvester tried to reach her brother, but was stopped again by Kevin Jones, who cut her on the leg (T. 319). She finally reached Keith Sylvester, who was by then lying motionless in the middle of East Falls Street (T. 320).

 La Veda Sylvester testified that when she reached her brother, she told Petitioner to leave him alone. Petitioner left, and came back with a board. He hit her with the board, and began hitting Keith Sylvester in the head with the board (T. 321-24). She also testified that Petitioner cut Keith Sylvester's face again (T. 325).

 The Testimony of Dennis Gulley

 Dennis Gulley testified that he was drinking with some other people in front of Beck's store on the corner of East Falls Street and 10th Street when he observed what appeared to be a fight, in front of Brother's Bar (T. 380-81). As he approached, he saw a man lying on the ground being punched by another man (T. 386). Gulley testified that the man on top had a razor or a box cutter in his hand (T. 387-88). Someone in the crowd told him that it was Keith Sylvester on the ground. Gulley knew Sylvester, and walked over and told the man on top to man on top to "leave the boy alone, you already beat him up" (T. 388). The man on top started to move toward Gulley, but Gulley backed away (T. 389-90). He testified that he saw somebody get hit with a stick, but couldn't tell who it was because he was some distance away (T. 396). Gulley was unable to identify Petitioner in court as the man involved in the fight (T. 392).

 The Testimony of Donald Streeter

 The Testimony of Officer Patak

 Police Officer Ernie Patak testified that at approximately 4:30 a.m. on October 2, 1983, he was called to the area of East Falls and Memorial Parkway on a report of a "cutting" (T. 140-41). When Patak arrived, he observed a man lying in the street with his head in the lap of a woman. The couple was later identified as Keith and La Veda Sylvester (T. 142-44). Patak observed that Keith Sylvester had blood on his head and clothes and appeared to be unconscious, and that La Veda Sylvester had blood on her arms and clothes and was hysterical (T. 144-45).

 After radioing for an ambulance, Patak observed two men engaged in an altercation. One of the men, later identified as the Petitioner, was throwing punches at the other man (T. 171). Patak and Captain Williams, who had arrived at approximately the same time as Patak, walked over and broke up the fight (T. 146-47). At this point, the ambulance arrived and the officers returned to the victim (T. 147). A second fight broke out between Petitioner and the second man and officers Patak, Winegarden (who had ...

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