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April 6, 2005.

JULIUS WARE, Petitioner,

The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge



Julius Ware ("Ware") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Ontario County Court on one count of first degree burglary. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b).


  Ware's conviction arises from an incident that occurred at the apartment of Albert Slaughter ("Slaughter"), an acquaintance of his. On the night of July 22, 1997, Ware and Slaughter were spending time at Slaughter's apartment along with Slaughter's girlfriend, Ware's girlfriend, and another female friend. All of those present were drinking alcohol and shared about four to six forty-ounce bottles of Country Club malt liquor over the course of the evening. At some point, Ware began making crude sexual comments to McKoy and the other women present. Slaughter repeatedly asked Ware to leave, but Ware refused. Eventually, Ware left the apartment, vowing to return to kill Slaughter. According to Slaughter, Ware's departing words were, "I be back [sic]. I am going home and get my knife and I am going to kill you, mother fucker." T.66.*fn1

  About fifteen to twenty minutes later, Ware returned to Slaughter's apartment. Unable to enter through the front door, Ware proceeded to the kitchen entrance and kicked in the door. Brandishing a folding knife with a hooked blade, Ware declared that he had come to kill Slaughter and put the knife up to Slaughter's neck. During the ensuing scuffle, Slaughter grabbed a kitchen knife that was laying on the television set and stabbed Ware. Ware then chased Slaughter out of the apartment. Slaughter sought refuge at a local hotel and called the police.

  Ware was apprehended after a brief foot chase and transported to the hospital, but he refused to be treated and left. When Sergeant D'Amico of the City of Geneva Police Department located Ware again, Ware had changed his clothes and shoes and was carrying a billy club. Ware was taken to the police station to be interviewed. While there, he pretended to have a seizure. The ambulance was called, but Ware again refused medical treatment. Sergeant D'Amico recalled that Ware's breath smelled like alcohol, but that Ware did not appear to be intoxicated. According to Sergeant D'Amico, Ware was coherent and responsive to questioning.

  In Ware's version of events, his last recollection was of attempting to leave Slaughter's apartment because he realized that Slaughter was angry and wanted him to leave. However, according to Ware, Slaughter's girlfriend grabbed him around the waist for some reason, at which point he passed out because he was drunk. Ware contended that he remembered nothing about the stabbing.

  An Ontario County Grand Jury returned an indictment charging Ware with one count of first degree burglary, one count of third degree criminal possession of a weapon and one count of second degree menacing. The prosecution offered Ware a sentence of three to six years in return for a guilty plea, but Ware rejected the offer. Prior to trial, the offer was re-instituted, but Ware again rejected it.

  Ware was tried before a jury in Ontario County Court (Harvey, J.) on November 24 and 25, 1997. The prosecution elected to dismiss the criminal possession and menacing charges and proceed only on the burglary charge, a class B violent felony. The theory of the defense was that Ware was too intoxicated to form the requisite criminal intent.

  At trial, Ware called his girlfriend, Rose Marie Singletary ("Singletary"), as a witness. Consistent with the other witnesses' testimony, Singletary confirmed that Ware had consumed some portion of four to six forty-ounce bottles of malt liquor over an eight-hour period. However, she did not characterize Ware as drunk, and, in fact, did not provide any testimony that supported his defense of intoxication. When asked about Ware's level of inebriation, Singletary only stated that Ware and Slaughter did not stay for a long period of time at the apartment where everyone was drinking.

  Ware testified in his own behalf that he shared about four forty-ounce bottles of malt liquor with several of his friends. He could not say how much alcohol he actually consumed, however. Ware did not claim that he was intoxicated and conceded that his consumption of alcohol that evening was not unusual.

  The jury returned a verdict convicting Ware of the burglary charge. Defense counsel filed a motion to set aside the verdict pursuant to New York Criminal Procedure Law § 330.30 alleging prosecutorial misconduct and violations of the prosecutor's disclosure duties pursuant to Brady v. Maryland, 373 U.S. 83 (1963). In particular, Ware contended that the prosecution failed to disclose medical evidence that allegedly would have supported his defense of intoxication. The prosecution responded that, several months prior to trial, it made available to defense counsel the videotape of Ware at the police station being asked by emergency personnel if he needed medical treatment. Although defense counsel had access to this tape, he apparently did not review it. The judge denied the motion to vacate and sentenced Ware as a violent felony offender on December 10, 1997, to seven and one-half to fifteen years in prison.

  Ware then collaterally attacked his conviction by means of a motion to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10. Ware argued that (1) trial counsel was ineffective; (2) the grand jury was not properly instructed as to the law; (3) the defendant was denied the right to participate meaningfully in jury selection; (4) the court erred in reading back only a portion of the testimony requested by the jury; (5) the statements to police should have been suppressed; and (6) there was no probable cause to arrest. The trial judge denied the application in a written decision and order entered June 15, 1998. Ware filed an application captioned in the Appellate Division, Fourth Department, of New York State Supreme Court in which he asked for re-argument of the § 440.10 motion and for leave to appeal. As it was the trial judge who denied Ware's motion to reargue, it is unclear whether the application actually was filed with the Appellate Division. In the papers submitted by Ware and respondent there is no indication that the Appellate Division ever issued a decision with regard to Ware's request for leave to appeal. Indeed, respondent argues that Ware's claims are unexhausted for this reason.

  Represented by new counsel, who was forced to seek an order directing the state to provide Ware with a copy of the trial transcript, Ware appealed his conviction to the Fourth Department. That court unanimously affirmed his conviction on May 10, 2000. People v. Ware, 272 A.D.2d 866 (App.Div. 4th Dept. 2000). The New York Court of ...

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