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Golden v. Lempke

November 1, 2010

DEDRIC GOLDEN, PETITIONER,
v.
JOHN P. LEMPKE, 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 Dedric Golden ("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 2, 2005, in New York State, County Court, Chemung County, convicting him, after a jury trial, of one count of Assault in the First Degree (N.Y. Penal Law ("Penal Law") § 120.10 [3], and two counts of Criminal Possession of a Weapon in the Third Degree (Penal Law §§ 265.02 [1], [4]).

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

II. Factual Background and Procedural History

A. Introduction

On an evening in May, 2005, Johnny Samuels ("Samuels") let Petitioner into his apartment building to allow him to knock on the door of Michael Thompson ("Thompson"), Petitioner's cousin, who also lived in the apartment building. Once inside the building, Petitioner pointed a gun at Samuels. When Samuels' dog, Hank, walked into the hallway and lunged at Petitioner, Petitioner shot Hank. Petitioner then fired a shot into Samuels' apartment, striking Samuels' pregnant girlfriend, Santana Parker ("Parker"), in her torso. Parker lost her baby as a result of her gunshot wound. Hank was euthanized as a result of his gunshot wound.

On June 16, 2005, a Chemung County Grand Jury charged Petitioner with one count of First Degree Assault, two counts of Third Degree Weapons Possession, one count of Second Degree Weapons Possession, and one count of Injuring an Animal. See Ind. No. 2005-188 (Resp't Ex. B at 5-7).

On October 11, 2005, a jury trial commenced before the Hon. James T. Hayden.

B. The Trial

1. The People's Case

In May 2005, Samuels and Parker lived with their dog Hank in an "efficiency" apartment building at 863 Magee Street in Elmira, New York. The three-story apartment building had multiple units and a shared bathroom, which was located on the second floor, next to Thompson's apartment unit. Trial Trans. [T.T.] 152-154, 159, 161-162, 233.

Shortly after midnight on May 8, 2005, Samuels and Parker were to retire for the day when the bell rang at the main door. Samuels looked outside his window and saw Petitioner, who he knew to be Thompson's cousin. Petitioner asked if Thompson was home. Samuels had met Petitioner about four times in the past month. When they had met, Samuels had loaned Petitioner cigarettes and $16, and they had "rapped" in Samuels' apartment. T.T. 161-167, 233.

Samuels did not know if Thompson was home, so he went downstairs and let Petitioner in to knock on Thompson's door. Petitioner entered the building, and Petitioner and Samuels walked to the second floor together. Samuels used the bathroom, and Petitioner knocked on Thompson's door. When Samuels exited the bathroom, Petitioner pulled a gun from his waist. Petitioner asked Samuels, "you know what this is?" He and Petitioner were face to face; Petitioner wore a beige or brown hat and a blue jacket with yellow streaks. Samuels moved toward Thompson's open apartment door and into Thompson's apartment. Inside, Samuels' nephew, Donald Cox, Jr. ("Cox"), was laying on a couch. Petitioner pointed the gun at Samuels and then at Cox. Petitioner yelled "gibberish" at the two men, who told him to calm down. Hank (the dog) then walked downstairs and lunged at Petitioner, and Petitioner shot Hank. T.T. 168-169, 171, 172-174, 176-180, 223, 226.

Fearful of being shot, Samuels put his hands in the air and indicated to Petitioner that he could have whatever he wanted. Petitioner led Samuels to the stairs and Samuels walked up three or four steps and then ran up the remaining stairs in the flight. Petitioner, however, blocked Samuel from closing his apartment door and pushed his way into Samuels' apartment. From inside the dark apartment, Parker saw Samuels push against the door, and watched Samuels slide to the floor in an effort to keep Petitioner from entering the apartment. Glenn Doty ("Doty"), who lived in the apartment next-door to Samuels, heard the commotion and thought Samuels was wrestling with Hank. T.T. 181-183, 185-186, 227, 236, 246-247.

Petitioner fired the gun into the apartment, and then ran off. Doty ran to his window and saw a man wearing a blue coat with yellow "possibly" near the sleeves who walked south on Magee Street minutes after he heard the gunshot. T.T. 188, 236, 245, 248-250.

Samuels called 911 and also asked a neighbor to call the police. Samuels then ran to another tenant, Chris Slater ("Slater"), and asked him for a weapon. Armed with Slater's pool cue, Samuel returned to his own apartment unit. There, Parker told Samuels that she had been shot. Samuels applied pressure to the wound on her torso until an ambulance and the police arrived. T.T. 188-189.

The police arrived at about 1:00 a.m. Some officers set up a perimeter in the streets surrounding the building. Inside the apartment building, Officer Williams encountered Hank, who was badly injured, lying down on the floor hallway and remained with him. Officer Williams spoke to Samuels, who was so distraught about his girlfriend and his dog, that he was unable to provide many details about what had occurred. T.T. 278-282.

An Animal Control Officer came to the apartment building, examined Hank, and then brought him to an on-call veterinarian. Hank was eventually euthanized as a result of the fatal injuries he sustained from the gunshot wound. Three bullet fragments were removed from the deceased dog and given to police. T.T. 322-323, 326-329.

Parker was eventually airlifted to Strong Memorial Hospital where she underwent surgery for her injuries. As a result of her injuries, she lost her baby. While Parker was being transported to Strong Memorial Hospital, Samuels met with the police and viewed photographs and was able to identify Petitioner from the police photographs. Petitioner's photograph was then distributed to police. T.T. 192, 242, 269, 283.

Officer Williams brought Petitioner's photograph to Officer Mustico, who was watching a house on Washington Avenue where Petitioner was believed to be. Officer Mustico told Officer Williams that he had seen Petitioner in front of a Dunkin' Donuts bakery across the street from the house he was watching. T.T. 283-284.

At about 6:00 a.m., Officer Williams approached Dunkin' Donuts' employee Martin Redder ("Redder"). Upon the Officer's request, Redder looked around inside the bakery and saw Petitioner on a pay phone. Officer Williams called Officer Mustico, and the two officers then watched as Petitioner walked out into the parking lot and waived his arms around, trying to attract a motorist's attention. The officers approached Petitioner and asked him his ...


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