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Bryant v. Lempke

August 2, 2010

JOHN L. BRYANT, PETITIONER,
v.
JOHN LEMPKE, RESPONDENT.



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

ORDER

I. Introduction

Pro se petitioner John L. Bryant ("petitioner") has brought a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Supreme Court for Murder in the Second Degree (N.Y. Penal L. § 125.25(1)), Criminal Contempt in the First Degree (N.Y. Penal L. § 215.51(b)(5)), Resisting Arrest (N.Y. Penal L. § 205.30), and two counts of Assault in the Third Degree (N.Y. Penal L. § 120.00(1)). Following his conviction by jury trial before Justice David D. Egan, petitioner was sentenced to an aggregate term of imprisonment of twenty-six and one-third years to life.

II. Factual Background and Procedural History

A. Trial and Conviction

In December, 2001, petitioner struck his wife, Gloria Jean Bryant ("the victim"), 27 times with a wooden cane, causing her death. T. 896-870.*fn1 Following the attack, he wrapped his wife's body in a bedspread and placed it under a boat tarp in his garage. T. 620-621, 863. Bloodstains and spatters were found at various locations in the house, in addition to a mop, scrub brush, sponges, and rags near some of the stains. T. 379, 607-616, 676-686, 743-795. In addition, petitioner dug a hole in the ground where he planned on burying the body. T. 1084-1085, 1091.

The charges also encompassed two prior beatings of the victim by petitioner on September 9 and November 19 of 2001.

In the early morning hours of September 9, 2001, the victim returned home late from Binky's Bar, the tavern she owned in the City of Rochester. T. 356. The following day at approximately noon, petitioner entered the bar and informed the victim's son, Paul Travis ("Travis"), that the couple had been fighting. Travis then went to his mother's house, which was not far from Binky's, to check on her. T. 357-358. There, he saw the victim lying in her bed with the covers over her head, crying and appearing to be in "a lot of pain." T. 359, 361. She gestured to her son with hand movements when he asked her what was wrong. She pointed to her head, rib cage, and groin area. T. 360. Travis called Rochester Police, and Officer Brian Phillips ("Phillips") responded to the call. T. 432. Although an order of protection was issued as a result of that incident, petitioner returned to the victim's residence not long after. T.1053.

Approximately two months later, on November 19, 2001, the victim again returned home late from working at Binky's. T. 356. Sometime around 3:00am, a neighbor, Shirlee Broadhurst ("Broadhurst"), was awakened by screams. She went to her window and saw petitioner beating the victim in the street. Broadhurst observed petitioner throwing the victim on the ground, kicking her, and dragging her back toward the house as the victim tried to escape. Broadhurst heard the victim screaming for help, and yelling that "he is going to kill me." T. 474. Broadhurst yelled to petitioner to stop, and that she had called the police, but petitioner continued to kick his wife at least "five or six times" and punch her "five or six times" all over her body. The beating stopped just before police arrived. T. 475-478. When Rochester Police arrived, the victim was "wandering around" and "crying hysterically" appearing to be dazed and had a large bruise on her head. T. 501-502.

Petitioner testified on his own behalf at trial. He admitted killing his wife, but claimed that he had done so in self defense after she attacked him with a knife. T. 1072-1079. Specifically, petitioner testified that the victim came home around midnight and demanded money from the petitioner. When petitioner refused, the victim swung at petitioner with a six-inch folding knife and threatened to kill him. During the altercation, petitioner struck the victim multiple times in the hands and the head, breaking the cane. T. 1070-1080. Petitioner supported his justification defense by testifying that he was disabled as a result of Hepatitis C and various bodily injuries, for which he took multiple medications. T. 1046, 1074.

The jury found petitioner guilty of all counts. He was subsequently sentenced to twenty five years to life imprisonment for the murder conviction, with sentences on the lesser charges to run concurrent. S. 14-15.

B. Direct Appeal

Through counsel, petitioner filed a brief in the Appellate Division, Fourth Department, raising three issues for appeal:

(1) the autopsy report and victim's statement to police denied petitioner's right to confrontation; (2) the victim's statement to police was improperly admitted as an excited utterance; and (3) the assault convictions were not supported by legally sufficient evidence. See Respondent's Appendix ("Appx.") B. The Appellate Division unanimously affirmed the judgment of conviction. People v. Bryant, 27 A.D.3d (4th Dept. 2006); lv. denied, 7 N.Y.3d 753 (2006).

C. Post-Conviction Relief

On June 13, 2007, petitioner filed a motion for writ of error coram nobis in the Appellate Division, alleging that his appellate counsel was ineffective for failing to raise an ineffective assistance of trial counsel claim on appeal. Appx. I. The Appellate Division denied petitioner's motion. People v. Bryant, 43 A.D.3d 1454 (4th Dept. 2007); lv. denied, 9 N.Y.3d 1004 (2007).

On April 28, 2008, petitioner filed a motion to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. L. § 440.10 in Monroe County Supreme Court, alleging, inter alia, that he received ineffective assistance of trial counsel. See 440.10 Mot. dated 4/28/2008 (Dkt. #8). The state court rejected petitioner's contention on the merits. See Decision & Order, Ind. No. 846/01 dated 12/10/2008 at 9-11; lv. denied, App. Div. Decision, Docket No. 09-00258, dated 4/15/2009.

D. Habeas Corpus Proceedings

Petitioner filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 on March 5, 2008 (Dkt. #1), raising five grounds for relief: (1) violation of petitioner's right to confrontation; (2) improperly introduced hearsay evidence at trial; (3) legally insufficient evidence to support the conviction for assault; (4) ineffective assistance of appellate counsel; and (5) the error coram nobis procedure in New York violated petitioner's due process rights. Petition ("Pet.") Attach., ¶ 14.

After the respondent submitted its answering papers (Dkt. #4), petitioner moved to: (1) extend his time to file a reply brief to respondent's answer; (2) stay the habeas proceedings to exhaust state court remedies; and (3) amend the original petition for writ of habeas corpus (Dkt. #5).

Petitioner's motion (Dkt. #5) was granted in part. This Court (M.J. Bianchini) granted petitioner leave to amend his petition to add the off-the-record ineffective assistance of trial counsel claims contained in his § 440.10 motion regarding his attorney's failure to consult expert witnesses and present a defense of extreme emotional disturbance. See Decision and Order, No. 08-CV-6103(CJS)(VEB) dated 9/30/2009 at 2 (Dkt. #9). No further papers were submitted by either party.

For the reasons that follow, I find that petitioner is not entitled to the writ, and the petition is dismissed.

III. Discussion

A. General Principles Applicable to Federal ...


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