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Kelly v. Ercole

June 9, 2010

GREGORY KELLY, PETITIONER,
v.
ROBERT ERCOLE, 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 Gregory Kelly ("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 16, 2004, in New York State, Supreme Court, Erie County, convicting him, after a jury trial, of Burglary in the First Degree (N.Y. Penal Law ("Penal Law") § 140.30[2]) and Assault in the Third Degree (Penal Law § 120.00[1]).

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

II. Factual Background and Procedural History

A. The Events of November 12, 2003

On November 12, 2003, at approximately 9:30 p.m., Gloria Middleton ("Middleton" or "the victim") was in her apartment when she heard the doorbell ring. Middleton met Petitioner in the hallway as he was letting himself into the apartment building with a key. Trial Transcript [T.T.] 45-49. Petitioner initially told her that a friend of hers, who had parked his car around the corner, was upset and looking for her. T.T. 50-51. When that failed to lure her outside, Petitioner asked Middleton to use her phone. T.T. 52-53. After Middleton handed Petitioner her cell phone, he grabbed her from behind and pushed her into her apartment. He told her not to scream, that he had a knife and razor, and threatened to kill her. T.T. 56-57.

Petitioner dragged Middleton to her bedroom and threw her on the bed. Middleton saw a knife in Petitioner's left hand, and a struggle ensued. Petitioner slammed the apartment door shut as the victim, screaming for help, attempted to escape. The attack ended when Petitioner heard the victim's neighbor, Jalissa Henderson ("Henderson"), say she had called the police. T.T. 56-65. Shortly after the attack, Middleton was transported from her apartment to the hospital by ambulance where she received treatment for her injuries, including a cut on her finger, scratches on her face and neck area, and overall soreness. T.T. 67.

Petitioner was eventually apprehended by police behind the victim's apartment building. When they apprehended him, police searched Petitioner for a knife, but did not find one. T.T. 151-158.

B. Indictment, Trial, and Sentencing

An Erie County Grand Jury indicted Petitioner and charged him with two counts of burglary in the first degree, assault in the second degree, and criminal possession of a weapon in the third degree.

Petitioner proceeded to trial and testified in his own defense. He provided an account of the events of November 12, 2003 that was different from the victim's account, wherein he was the victim and Middleton was the primary aggressor. T.T. 243-252. He admitted, however, to chasing Middleton up the stairs, entering her apartment without her permission, grabbing her, pushing her, shaking and throwing her on the "hard wax floors," causing her to slide toward the bedroom. He also stated that he "shook her again [and] threw her down on the bed." T.T. 248-249, 310-312, 326.

Henderson, the victim's neighbor, testified at trial that Petitioner rang her doorbell between 9:00 and 9:30 p.m. on the night of the crime. As she was going to answer the door, Petitioner let himself into the building. Henderson believed that Petitioner was going into the apartment downstairs and so she returned to her apartment without conversing with him. T.T. 132-135. Approximately five minutes later, she heard Middleton screaming and crying for help. Henderson opened her door, looked into the hallway and saw the door of the victim's apartment open slightly and then slam shut. Henderson called the police, and then yelled to the victim across the hallway that she had done so. After the police arrived, Henderson saw the victim's clothes were torn, her mouth was bloody, and her apartment was in disarray. T.T. 135-139.

Another neighbor, Gussie Trotter, who lived in the apartment below the victim, testified that she heard "thumping" upstairs and went to see what was happening. She saw the victim, who was crying and seemed frightened and shocked, standing in the hallway. The victim's clothes were disheveled and there was blood on her pants. T.T. 193-194.

Following the trial, Petitioner was found guilty of one count of burglary in the first degree and assault in the third degree. T.T. 461-462. On December 16, 2004, he was sentenced as a second violent felony offender to a determinate term of imprisonment of twelve years for the burglary conviction and a concurrent, determinate term of ...


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