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Loving v. People of the State of New York

June 21, 2007

DEMETRIOUS LOVING PETITIONER,
v.
PEOPLE OF THE STATE OF NEW YORK RESPONDENT.



The opinion of the court was delivered by: Trager, J

ORDER

Petitioner Demetrious Loving ("petitioner" or "Loving") brings this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to vacate his conviction, arguing that the evidence adduced at his bench trial was legally insufficient.

For the following reasons, the petition is denied.

Background

(1)

Factual Background Petitioner was charged with Assault in the Second Degree (N.Y. Penal Law § 120.05(2)), Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02(1)) and two counts of Criminal Possession of a Weapon in the Fourth Degree (N.Y. Penal Law § 265.01(2)). Petitioner and co-defendant, his girlfriend Dora Manning ("Manning"), were tried together at a bench trial before the Honorable Judge Barry Kron. At the bench trial, the state introduced the following evidence. On July 27, 2000, at approximately 7 p.m., petitioner and Manning encountered complainant Sherrell Holloway ("Holloway") outside of her apartment building on 1-20 Astoria Boulevard in Queens County. Trial Tr. ("Tr.") at 36:24-37:17; 131:20-25. Petitioner and Manning got into an argument with Holloway, and Manning punched Holloway in the face. Tr. at 39:9-14. A fight ensued between the two women, prompting petitioner to break up the fight and push Holloway away. Tr. at 39:15-19; 54:3-18. At some point either before or after Holloway began to walk back into her apartment building, Manning slashed Holloway five times in the arm. Tr. at 75:24-77:5; 92:9-16. Although Holloway did not see a weapon in Manning's hand, she testified she believed it was a razor. Tr. at 39:20-40:9. Holloway's mother saw her daughter's arm bleeding and testified that she saw Manning holding "a knife or a blade." Tr. at 31:13-16.

Holloway and her mother called the police, who arrived ten to fifteen minutes later to take a report of the incident.

Tr. at 33:12-13; 79:1-4. The police officer observed "surface scratches," Tr. at 110:6-8, that "looked like a razor cut," Tr. at 109:19,*fn1 on Holloway's arm and offered medical attention, which Holloway refused, saying that she would take care of the cuts herself, Tr. at 41:1-3; 107:14-17.

About approximately 7:30 p.m. that same night, Holloway drove with her friend, Melissa Cooper ("Cooper"), to the drug store to get ointment for her cuts. Tr. at 41:13-19. As Holloway was getting out of Cooper's car, a car driven by petitioner pulled up beside her and pinned her right leg between his car and a gate. Tr. at 41:21-24. Manning jumped out of the car and started to assault Holloway. Tr. at 41:25-42:5. When Manning yelled, "she cut me, she cut me," Tr. at 42:5-6, petitioner exited the car and stabbed Holloway once in the arm with a black-handled steak knife, telling her, "I got you, bitch," Tr. at 42:4-23; 85:12-14. Holloway started fighting petitioner and Manning pulled out a razor and cut Holloway's arms. Tr. at 42:7-11; 86:16-19. Manning also bit Holloway's thumb during the fight. Tr. at 43:5-11.

Holloway was bleeding so badly that her "whole outfit was completely drenched in blood," Tr. at 44:21-22, and was in "a lot" of pain, Tr. at 44:23-45:3. Cooper took her to the hospital and then left to bring Holloway's mother to the hospital. Tr. at 44:5-11. When Holloway was told she would have to wait for medical attention, she left the hospital and began to walk home. Tr. at 44:5-9. Holloway's mother, en route to the hospital, spotted Holloway walking back from the hospital and flagged down a police officer. Tr. at 22:24-23:16; 44:10-15. The police officer testified he observed "a very large laceration" on Holloway's arm and that Holloway was complaining of a lot of pain in her leg. Tr. at 108:7-11. The police officer called an ambulance to take Holloway to another hospital. Tr. at 23:14-16; 45:8-17. Holloway received between 15 and 30 stitches at that hospital. Tr. at 45:20-24.

Petitioner presented no witnesses, though his attorney asked the trial judge to take judicial notice of the criminal complaint, which stated that petitioner had a razor knife during the second incident and "cut as opposed to stabbed" Holloway.

Tr. at 168:8-24.

Manning took the stand in her defense and testified that she and Holloway used to be friends but had been involved in a longstanding feud since 1994 or 1995. Tr. at 127:16-128:16. Manning described three subsequent incidents, one where Holloway attacked Manning and petitioner, another where Manning believed Holloway had vandalized her car and, finally, where Holloway's sister broke the passenger window of petitioner's car while petitioner and Manning were inside it. Tr. at 130:11-139:18. When petitioner and Manning went to the police station on August 5, 2000 to report this last incident, petitioner and Manning were placed under arrest and searched. Tr. at 96:9-24; 100:23-101:9. A black-handled steak knife was recovered from Manning's pocketbook. Tr. at 96:14-99:14. There was ...


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