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GEORGE v. LORD

LILLIAN GEORGE, Petitioner,
v.
ELAINE LORD, Superintendent, Bedford Hills Correctional Facility Respondent.



The opinion of the court was delivered by: STERLING JOHNSON, JR., District Judge

MEMORANDUM AND ORDER

Petitioner Lillian George (hereinafter "Petitioner"), acting pro se, brings the above-captioned Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the motion is denied. BACKGROUND

  Petitioner was arrested and charged in connection with the stabbing of Latoya Green (hereinafter "Green") that occurred in the early morning hours of January 1, 2000. She went to trial before a jury in Kings County on September 18, 2000 on an indictment charging one count of Attempted Murder in the Second Degree, one count of Assault in the First Degree, two counts of Assault in the Second Degree, one count of Assault in the Third Degree, and two counts of Criminal Possession of a Weapon in the Fourth Degree.

  In a pre-trial Sandoval ruling, the trial court precluded any reference to Petitioner's prior conviction, but permitted the prosecutor to introduce testimony regarding the details of her arrest in this case, which included her apprehension at the office of her parole officer. (Trial Transcript (hereinafter "Tr.") at 6.) During the course of the trial, the judge gave the jury a limiting instruction that consisted of an acknowledgment that defendant was on probation for a prior offense, and directions that the jury was to consider her probation only as context in understanding the circumstances of her arrest and not in coming to a judgment on the instant charges. (Tr. at 177.)

  The evidence at trial consisted of conflicting testimony from witnesses for the State and for the Defense regarding a fight or series of fights that took place outside of a juice bar and a game room on New Year's Eve, January 1, 2000, involving Petitioner and several other women. Complainant Green testified that after the fight, she was stabbed by Petitioner in the stairway of her building. (Tr. at 122.) No other witnesses testified about the stabbing. Shortly after the incident, Green called 911 and told the operator that the person who stabbed her was still outside the building. (Tr. at 124.) She shouted to police officers in the street below that "she stabbed me," but testified that she could not yell loudly and that the officers did not hear her. (Id.) The 911 tape, which recorded both the conversation with the emergency operator and Green's attempts to alert the officers, was played at trial, over Petitioner's objection. (Tr. at 127-28, 164-65.) Green sustained serious injuries to her colon and kidney (Tr. at 171), which caused significant loss of blood (Tr. at 172) and required emergency surgery and blood transfusions (Tr. at 131, 172). As a result of these injuries, she spent 11 days in the hospital (Tr. at 173) and required follow-up home nursing care (Tr. at 131, 175).

  During cross-examination, Defense Counsel questioned Green about her prior statements made to police officers on January 1, 2000 (Tr. at 141) and to the Grand Jury (Tr. at 140), but not about another statement made on January 3, 2000. Later, during the testimony of Detective Teresa Leto, the Defense attempted to elicit testimony about Green's January 3 statement, but the testimony was precluded on the ground that Counsel had not laid a proper foundation by first questioning Green about that statement. (Tr. at 181, 184.) Counsel then sought to recall Green in order to question her about her prior statement. (Tr. at 185.) The Court denied that request, on the ground that recalling the witness would be an "unnecessary burden" and that it would give the statement "disproportionate importance" because "it's clear in these fights nobody remembers what's going on." (Tr. at 185-86.) The Defense called police officer Yecenia Portorreal, who testified to Green's January 1 statement, which differed from her trial testimony. (Tr. at 329.)

  Detective Leto testified that following the stabbing, she identified Petitioner as a suspect and sought to question her about the events. (Tr. at 176.) Petitioner testified that she had been living in Baltimore prior to the incident, with the knowledge of her probation officer, and that she returned there on New Years Day, after the fights. (Tr. at 286-87.) She indicated that she learned that the police wanted to question her and spoke with a detective by telephone on two occasions, but that "[h]e made it seem like it was no big deal." (Tr. at 288-89.) She was apprehended by the police when she reported to her probation officer on February 10, 2000. (Tr. at 178-79, 290.) After the Defense rested, the prosecution called her probation officer to the stand as a rebuttal witness. The officer testified that Petitioner had not informed him that she was living in Baltimore. (Tr. at 335.)

  In summation, Defense Counsel advanced the theory that Green was accidentally stabbed by Rashida Mathis, who had been fighting Petitioner and who, Petitioner had testified, was Green's roommate and lover. (Tr. at 275, 350.) Counsel brought out the close relationship between Green and Mathis, suggested a motive for them to cover for each other (Tr. at 343, 252), and emphasized Green and Mathis's prior inconsistent statements (Tr. at 356, 360).

  At the conclusion of trial, the court, on its own motion, included the following jury instruction on flight:
. . . Now, flight alone raises no presumption of guilt. Flight is simply one of the things that you can consider ordinarily for, it is of slight value and sometimes it's of no value, depending upon the circumstances. It is simply one of the factors that you may wish to consider in deciding this case. If you decide there was flight then you can decide, well, the defendant fled because she was, because she in her mind, that she had committed this crime or whether there was some other reasons why she fled. (Tr. at 391-92.)
  The jury returned a verdict of guilty of Assault in the First Degree. (Tr. at 412.) Petitioner was acquitted of the attempted murder charge. (Tr. at 411.) On December 20, 2000, the court sentenced her to ten years imprisonment, as a second violent offender. (Sentencing Transcript at 5.)

  Subsequently, Petitioner appealed her conviction to the New York State Appellate Division, Second Department ("Appellate Division") raising three issues: 1) that the court denied her a fair trial by admitting prejudicial evidence, over her objection, that she was apprehended at the office of her probation officer; 2) that she was denied the right to confront witnesses and to present a defense by the trial court's denial of her request to recall the complaining witness in order to confront her with a prior inconsistent statement; and 3) that the court's jury instruction on flight as consciousness of guilt was erroneous and inadequate and thereby deprived her of a fair trial. On March 18, 2002, the Appellate Division affirmed Petitioner's conviction. People v. George, 739 N.Y.S.2d 586 (N.Y.App. Div. 2d Dep't 2002). On May 23, 2002, the New York Court of Appeals denied petitioner leave to appeal. People v. George, 98 N.Y.2d 651 (N.Y. 2002).

  Petitioner filed a timely application for a writ of habeas corpus in federal court, pursuant to 28 U.S.C. § 2254, on March 7, 2003, raising the same three claims alleged in her direct appeal.

  DISCUSSION

  1. Procedural Requirements

  This Petition is timely under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), because it was filed within one year of "the date on which the judgment became final by conclusion of direct review or the expiration of ...


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