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Willson v. Berbary

March 20, 2006


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



Petitioner, Gregory Willson ("Willson"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Cattaraugus County Court on charges of second degree assault and third degree criminal possession of a weapon. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).


The conviction here at issue stems from an altercation that occurred on the night of December 27, 1997, at the City Limits Bar in the Town of Olean, and which involved Willson and Donald Lippert ("Lippert"). Willson overheard Lippert make a remark to someone else regarding a motorcycle group called "the Kingsmen." The remark apparently angered Willson and he instigated two fights with Lippert. As a result of this incident, Willson was indicted on three counts of second degree assault and two counts of third degree criminal possession of a weapon. Willson was arraigned on these charges on June 1, 1998, and entered a plea of not guilty.

Willson's jury trial was conducted in Cattaraugus County Court (Himelein, J.) on February 1 through February 3, 1999. Nancy Burdick ("Nancy") testified that she was working as a fill-in bartender at the City Limits Bar on the night of the incident. T.126.*fn1 At about 8:30 p.m. that night, there were about six other people in the bar. T.129. Willson was sitting on the front side of the bar, and Lippert was sitting near the back door. Nancy testified that she saw Willson approach Lippert, grab him, and then begin to fight with him. T.131-32. After the fight was broken up, Willson walked through the bar to the front door; as he did so, Nancy saw him put a straight-bladed six-inch knife into a sheath on his belt. T.134. Nancy did not overhear anyone complain about being injured. T.139. She then went into the kitchen to telephone the owner of the bar and advise him of what had occurred. T.135. As she was doing so, Susan George, who had followed the petitioner out of the bar, approached her and handed her a gun. T.139. Nancy took the gun and locked it in the kitchen. T.136.

At that point, Nancy's husband, Blair Burdick ("Burdick") pulled into the parking lot and observed a light blue Ford pickup truck in the lot. T.153. His headlights illuminated the truck and he saw a man jump from the bed of the pickup and tackle Willson, who was standing at the driver's-side door. T.154-55. As Willson got tackled, a gun flew out and landed in the parking lot. T.155. Burdick saw a red-haired woman pick up the gun and carry it inside the bar. T.157. Burdick then observed petitioner and another man, later identified as Lippert, fighting on the ground. Willson had Lippert pinned down and struck him "hard and fast" eighteen to twenty-four times. T.156. According to Burdick, Lippert was trying to block the blows, but he never struck petitioner. T.156, 157. After the fight was over, Burdick observed that Lippert had blood on his chin and cheek, but Willson appeared to be uninjured. T.158.

Burdick then entered the bar where he encountered his wife and called 911 and the owner of the bar. T.137. Willson re-entered the front door of the bar and demanded that Nancy return his gun to him. T.137, 159. When he heard that the gun was locked up and inaccessible, Willson became very angry and announced that if he did not get his gun back, he would get another gun from his truck and shoot everyone in the bar. T.138, 159. Nancy, Burdick, and the rest of the patrons then exited the bar through the rear door, and Willson left through the front. T.138, 160.

Lippert, the victim, testified that during a conversation with someone at the City Limits Bar on the night of December 27, he commented that the "Kingsmen [a motorcycle club] weren't like they were 20 years ago." T.173. Burdick then confronted Lippert and stated, "[A]re you calling me a pussy?" T.173. When Lippert did not respond, Willson lunged at him and they fought. T.174. However, Lippert did not observe a knife in Willson's possession during that fight inside the bar. T.175. When the fight ended, Lippert testified, Wilson jumped up and headed for the door, stating that he was going to get a shotgun and "blow [Lippert's] ass away." T.176. Lippert followed Willson outside and observed him standing at the truck with the door open, holding a shotgun. T.177. Lippert went through the pickup box into the truck and jumped on Willson in an attempt to wrest the gun away from him. T.177. The gun went flying and Lippert and Willson ended up on the ground. Lippert testified that Willson was on top of him, hitting him in the face. T.178. When the assault ended, Lippert went to the hospital where he was diagnosed with a broken nose which required surgery and kept him out of work for at least a month. T.179-80.

Deputy Bryan Schwabenbauer ("Schwabenbauer") testified that when he responded to a call concerning a man with a gun at the City Limits Bar, he arrived to find Willson in the parking lot by his pickup truck. T.203-04. Schwabenbauer approached Willson and apprehended him, removing a dagger in a sheath from Willson's right hip and a flip-knife from his front pants pocket. T.207, 209. In addition, a Mossberg Maverick .12-gauge shotgun and a Ruger Mini-30 were found in Willson's truck.

Deputy Thomas Drake ("Drake") testified concerning his experience in the use and identification of knives. T.222. Drake testified that the knife taken from Willson at the time of his arrest was a dagger and was a survival weapon designed for killing or injuring someone.


The defense called Susan George ("George"), who testified that on December 27, 1997, she was in the company of Lippert and Bob and Cheri Austin at the City Limits Bar. T.232. George recounted the remark by Lippert concerning the Kingsmen and stated that a fight ensued after Willson approached Lippert. George testified that she did not observe a knife in anyone's possession during the fight inside the bar, although she did observe Willson check his knife as he left the bar. T.235. She denied hearing Willson issue any threats as he left. Id. George testified that Lippert followed Willson out of the bar and jumped over the bed of the pickup truck and onto Willson. T.237. George testified that Willson kept hitting Lippert until she punched Willson in the arm three times, at which time Willson stopped. George then brought the gun, which had landed on the ground, into the bar.

At the conclusion of the prosecution's case, the trial court had dismissed three counts of the indictment sua sponte, leaving only the counts charging Willson with the unarmed assault on Lippert and with criminal possession of the dagger. T.228-29. The jury convicted Willson of the remaining counts of the indictment. Willson was sentenced as second felony offender to a determinate term of four and one-half years on the second degree assault conviction, to run consecutively to his sentence of three and one-half to seven years on the weapons possession conviction.

The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed petitioner's conviction on May 10, 2000. People v. Willson, 272 A.D.2d 959 (App. Div. 4th Dept. 2000). The New York Court of Appeals denied leave to appeal. People v. Willson, 95 N.Y.2d 873 (N.Y. 2000). Willson collaterally attacked his conviction by means of a motion pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10. The trial court denied the motion on May 29, 2001, and leave to appeal was denied by the Appellate Division on February 7, 2002. Willson then filed a C.P.L. § 440.10 motion in the Appellate Division, alleging that his appellate counsel was ineffective. This motion was denied on October 1, 2002.

This habeas petition followed. Respondent does not raise the defense of non-exhaustion, and all of the claims raised appear to be fully exhausted and properly before this Court. For the reasons set forth below the petition is denied.


Standard of Review

To prevail under 28 U.S.C. ยง 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of ...

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