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BROWN v. DUNCAN

June 4, 2003

WILLIE BROWN, PETITIONER,
v.
GEORGE DUNCAN, SUPERINTENDENT, RESPONDENT.



The opinion of the court was delivered by: Gary L. Sharpe, Magistrate Judge

ORDER AND REPORT-RECOMMENDATION

Petitioner, pro se, Willie Brown, a New York State prison inmate as a result of a 1992 Albany County Supreme Court conviction for rape in the first degree, sodomy in the first degree, and robbery in the second degree, has commenced this proceeding seeking federal habeas relief pursuant to 28 U.S.C. § 2254. Respondent opposes the petition, arguing both that it is untimely and that it should be rejected on the merits.

In light of the fact that the petition is barred by the governing one year statute of limitations applicable to habeas petitions in light of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), this court recommends that Brown's petition be denied and dismissed.

I. Background

Brown's conviction stems from an incident which occurred in the early morning hours on December 15, 1990, in an apartment located in Albany, New York. During the course of the previous evening, the victim,*fn1 a student at the State University of New York at Albany, patronized some local taverns in the Albany, New York, area and was accompanied by a male companion. See Transcript of Trial of Willie James Brown and June Christine Benson, Index No. DA 216-91 ("Trial Tr.") at PP. 546-47. At some point during that night, the victim left a bar and attempted to walk to her apartment which was located on Washington Avenue. Trial Tr. at P. 548. On her way home, the victim became disoriented and found herself lost in the Arbor Hill section of Albany, New York. Trial Tr. at PP. 548-49.

The victim was subsequently approached by an individual identified by the victim at trial as Willie James Brown. See Trial Tr. at P. 617. He advised the victim that she was in an unsafe part of the city and should not be walking alone. Trial Tr. at P. 549. Brown offered to take her to an apartment where he claimed his wife would call the woman's friends and ask them to pick her up. Trial Tr. at PP. 549-50. Benson then asked the victim for the telephone numbers of her friends, briefly left the apartment, and soon returned and told the victim that her friends were on the way.*fn2 Trial Tr. at PP. 551-52.

After a period of time, the victim became nervous and expressed her desire to leave. Trial Tr. at P. 553. However, Benson informed the victim that she wasn't "going anywhere." Trial Tr. at P. 553. After demanding that the victim give Benson all of her jewelry and money, Benson directed the victim to remove her clothing, threatening to kill her if she did not. Trial Tr. at PP. 553-56. She was then instructed to go into another room, where she was raped and anally sodomized by Brown. Trial Tr. at PP. 556-58. The victim then performed oral sex on Brown. Trial Tr. at P. 559.

At some point following the forced sexual acts, Brown told the victim she could leave, after which she grabbed her clothes and ran out of the apartment. Trial Tr. at PP. 560-61. She eventually hailed a taxicab and was driven to the Albany Medical Center Hospital where she was examined. Trial Tr. at PP. 560-62. That examination revealed an abrasion and contusion on her forehead as well as abrasions on her forearms and wrists. Trial Tr. at P. 416.

II. Procedural History

A. State Court Proceedings

Brown and a co-defendant were both indicted by an Albany County grand jury on May 7, 1991, and charged with rape in the first degree, sodomy in the first degree, and robbery in the second degree. See Appendix in Support of Appeal at PP. A1-4. The two were tried jointly before separate juries in Albany County Supreme Court, beginning on July 6, 1992, with County Court Judge Thomas W. Keegan, presiding.

At the conclusion of the trial, Brown was found guilty on all counts. Trial Tr. at PP. 1235-37. Judge Keegan sentenced Brown as a predicate violent felony offender to terms of imprisonment of twelve and one-half to twenty-five years on the rape conviction, twelve and one-half to twenty-five years on the oral sodomy conviction (to run consecutively with the sentence for the rape conviction), twelve and one-half to twenty-five years on the anal sodomy conviction (to run concurrent to the sentence imposed for the rape and oral sodomy convictions), and seven and one-half to fifteen years on the robbery conviction (consecutive to the other sentences imposed). As a result, Brown was sentenced to an aggregate of between thirty-two and one-half to sixty-five years imprisonment. See Sentencing Tr. (3/29/93) at PP. 16-17.

Brown appealed his conviction to the New York State Supreme Court, Appellate Division, Third Department, however, that court affirmed the convictions and sentences in all respects. People v. Brown, 232 A.D.2d 750 (3rd Dept. 1996). Leave to appeal from that determination to the New York State Court of Appeals was denied on January 15, 1997. People v. Brown, 89 N.Y.2d 940 (1997).

On April 3, 1997, Brown filed a pro se motion to vacate the conviction pursuant to New York's Criminal Procedure Law ("CPL") § 440.10, claiming that the prosecution failed to disclose to him a statement given by his wife to Detective Michael Sbuttoni of the Albany Police Department, as well as a statement made by Angella McCall, before the grand jury that indicted Brown. He also claimed that the victim was improperly permitted to make an in-court identification of Brown as the perpetrator. See CPL § 440.10 motion. County Court Judge Thomas A. Breslin denied that application in his order dated July 28, 1997. The Third Department denied Brown's request to appeal Judge Breslin's decision by Order dated October 6, 1997, ...


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