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Burden v. Filion

March 17, 2006


The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge



Petitioner, Leonard Burden ("Burden"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Wayne County Court on three counts of criminal sale of a controlled substance in the third degree, three counts of criminal possession of a controlled substance in the third degree, and one count of criminal possession of a controlled substance in the seventh degree. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).


Burden's jury trial commenced on September 23, 1998, in Wayne County Court (Kehoe, J.). At trial police investigator Brenda Roberts ("Roberts") testified that on December 16, 1997, she was introduced to Shawn Krepp ("Krepp"), a confidential informant, who was supposed to help her purchase narcotics in the Village of Lyons. T.333-35.*fn1 Roberts and Krepp went to 43 Water Street where they came upon a man whom Krepp identified as "Pluto" (i.e., Burden) standing outside. Krepp asked Pluto if he "ha[d] anything," to which he replied, "Yes, follow me upstairs." Both Roberts and Krepp followed Pluto upstairs, and both gave him $20 to purchase some crack cocaine. T.337. When Pluto returned to the apartment about forty-five minutes later, he handed Krepp two pieces of crack, which Krepp turned over to Roberts. T.337-38. At trial, based upon police investigation of the identity of Pluto, Roberts identified "Pluto" as Burden.


Krepp testified that Burden was not standing outside when they first approached the apartment building, but she stated that she and Roberts each paid Burden $20 in exchange for crack cocaine. Krepp confirmed that Burden first handed the drugs to her, and she handed them to Roberts. T.310-11. Krepp testified that she had known Burden for a few months prior to the drug sale; they had had sexual relations and "gotten high" together in the past. T.313. Krepp testified that Burden routinely would procure drugs for her, and that he purchased drugs for her on the night of December 16, 1997. T.314, 319, 323.

The prosecution presented proof of three other incidents involving Burden. On January 22, 1998, police investigator Alvarado ("Alvarado") was working in an undercover capacity with informant Richard Hartranft ("Hartranft"). The two were driving around Lyons in Hartranft's truck at about 8 o'clock in the evening on that date when Hartranft announced, "There's Pluto."

T. 205-06. Alvarado had never met petitioner before. T.207. According to Alvarado's testimony, he and Hartranft stopped the truck and Burden approached the passenger side of the vehicle where Alvarado was sitting. Burden asked what they wanted, and Alvarado replied, "A forty." Burden instructed the two men to drive around to the parking lot behind 58 Water Street, where Burden got into the vehicle. Alvarado said that he wanted to purchase some crack cocaine, and Burden said he wanted his money first. Alvarado demurred, stating that he wanted to see what he was purchasing first. Burden offered to leave Alvarado his Pittsburgh Steelers jacket as collateral; Alvarado refused. Burden then offered to hand over his Social Security card and birth certificate. T.210-11. Alvarado took the Social Security card and asked Burden what the number was; Burden read it off from memory. Id. At that point, Alvarado agreed to give Burden the money up front. Burden left and returned shortly thereafter with some crack, which he gave to Alvarado. T.213. Burden asked for a ride home to 43 Water Street, and Alvarado complied. Once back at Water Street, Burden asked if Alvarado was going to "take care of him," so Alvarado handed him ten extra dollars. T.214.

Hartranft testified that he only remembered saying "hello" to Burden before Alvarado started talking about the drug-buy. T.253. Hartranft stated that he had known Burden for about twenty years, having first met him in 1978 when he was a truck driver and Burden was picking apples. T.256. Hartranft testified that Burden gave the crack cocaine to Alvarado, and that Alavarado gave the buy money to Burden. T.254. Hartranft denied handling either the money or the drugs that night.

Burden testified regarding the incident with Hartranft and Alvarado. He recounted that Hartranft asked him, "Is there anything around[?]" According to Burden, Hartranft continued, "I been up there [43 Water Street] two or three time[s] and I got ripped off, me and my friends got ripped off." T.361. He testified that Hartranft said, "We will give you ten dollars if you go up there and get me a 40." Id. Burden stated that Hartranft handed him some money; he denied that Alvarado ever handed him any money. T.361-62, Burden then went inside and bought some crack cocaine from two unknown men. T.364. Burden confirmed that he had known Hartranft for twenty years and stated that he used to "get high" with Hartranft and his girlfriend. T.363.

On January 24, 1998, Alvarado was working with a different informant, Gerald Ameele ("Ameele"). T.219. The two drove around to the back of 43 Water Street, tooted the horn, and waited there for a minute before they spied Burden on the balcony of the building. T.222. Burden invited Alvarado and Ameele inside and asked Alvarado what he wanted. T.223. Alvarado told him, "a sixty," and gave him the money. Burden left to get the drugs. When he returned five or ten minutes later, he dumped several pieces of crack cocaine into Alvarado's hands. T.224.

Alvarado was driving around with Ameele again on February 6, 1998. They saw Burden and stopped to talk to them; Burden asked them for a ride to a gas station to buy some beer.

T.227-28. When Burden finished buying his beer, he got back in the car and asked them what they wanted. Alvarado said that he wanted "a forty," so Burden had them drive over behind 43 Water Street. Alvarado testified that Burden went and got the drugs without getting any money up ...

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