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Fountaine v. Burge

January 13, 2010

NORMAN FOUNTAINE, PETITIONER,
v.
JOHN BURGE, SUPERINTENDENT RESPONDENT.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge

DECISION AND ORDER

I. Introduction

Pro se petitioner, Norman Fountaine ("Petitioner"), has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered December 12, 2002, in New York State, County Court, Monroe County, convicting him, after a jury trial, of one count of Burglary in the First Degree (N.Y. Penal Law ("Penal Law") §§ 20.00, 140.30[4]) and one count of Menacing in the Second Degree (Penal Law § 120.14[1]).

For the reasons stated below, the writ is denied and the petition is dismissed.

II. Factual Background and Procedural History

On the evening of January 20, 2002, Rosemary Novick ("Novick") was at her home at 1 Villa Street, Apartment 2, in the City of Rochester. Trial Transcript [T.T.] 35. At approximately 11:30 p.m., Petitioner and Leroy Ange ("Ange"), each armed with 9-millimeter handguns, forced their way into Novick's apartment. T.T. 36-38, 78. Ange entered first, indicated that he was going to kill Novick, and demanded that she tell him the whereabouts of her son. T.T. 37-38. Novick's son was not in the apartment at the time. T.T. 38. When Petitioner and Ange initially entered the apartment, they caused Novick to stumble down the basement steps, which left bruises on her leg. T.T. 36.

Once advised that Novick's son was not home, Ange fled past Novick and ventured further into her apartment. In an attempt to escape, Novick ran to the door and came face to face with Petitioner. Petitioner held Novick at gunpoint for approximately 15 seconds before she was able to flee to a neighbor's house and call the police. T.T. 38-40, 45. When interviewed by police, Novick identified Petitioner as one of the intruders. T.T. 65.

At Petitioner's trial, the People presented various witnesses to identify defendant as one of the intruders. Makiesha Hawkins ("Hawkins"), who was visiting her sister (who lived in the upper apartment at 1 Villa Street) on the night of the incident, testified that she had known Petitioner from the neighborhood since June of 2001. She testified that on the night of the incident, she was looking out the window of her sister's apartment when she saw Petitioner and another male walk toward the side door of the home that led to Novick's apartment. T.T. 81-82, 85, 122. From a side window, she saw Petitioner, armed with a gun, and his companion converse before they knocked on Novick's door. T.T. 82-85. Hawkins also testified that she watched Petitioner flee the area once he and Ange exited Novick's apartment. T.T. 87.

Cara Williams ("Williams"), Petitioner's ex-girlfriend who also testified for the People, recounted a three-way conversation in February 2002 between herself, Petitioner (who was in jail at the time), and his mother in which Petitioner acknowledged he entered Novick's apartment on the night of the incident. T.T. 152, 154. Williams also testified that, in January 2002, Petitioner asked her not to testify against him. T.T. 145-146.

Petitioner did not testify at trial.

At the close of the trial, Petitioner was found guilty as charged and sentenced to 18 years imprisonment with a 5 year period of post-release supervision. Sentencing Minutes [S.M.] 12-15.

Petitioner appealed the judgment of conviction, which was unanimously affirmed by the Appellate Division, Fourth Department. People v. Fountaine, 8 A.D.3d 1107 (4th Dep't 2004). Leave to appeal was denied by the New York Court of Appeals. People v. Fountaine, 3 N.Y.3d 706 (2004).

On or about March 2, 2005, Petitioner filed a motion to vacate the judgment pursuant to New York Criminal Procedure Law ("CPL") § 440.10 alleging that the prosecution withheld exculpatory evidence and that new evidence had been discovered. At the same time, Petitioner also moved pursuant to CPL § 440.20 to modify his sentence. The trial court denied Petitioner's motion. See Decision & Order of the Monroe County Court, Ind. No. 02/188B, dated 05/17/05. Petitioner appealed the denial of the motion, which was denied by the Appellate Division, Fourth Department. See Decision of the Appellate Division, Fourth Department, Ind. No. 02/188B, dated 11/09/05.

On or about, June 15, 2006, Petitioner timely filed the habeas corpus petition presently before this Court, wherein he seeks relief on the following grounds: (1) that an out of court identification procedure violated his due process rights, and as a result, he was arrested without probable cause; (2) that he was illegally sentenced to 18 years in prison; (3) that his sentence was harsh and excessive; (4) that he received ineffective assistance of trial counsel because his attorney failed to ...


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