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Mark Berry v. Dale Artus

December 9, 2010

MARK BERRY, PETITIONER,
v.
DALE ARTUS, RESPONDENT.



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

04-B-0807,

ORDER

I. Introduction

Petitioner Mark Berry ("petitioner"), who is proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for Course of Sexual Conduct Against a Child in the First Degree (N.Y. Penal L. § 130.75), two counts of Sodomy in the Second Degree (former N.Y. Penal L. § 130.45), and one count of Attempted Rape in the Second Degree (N.Y. Penal L. § 110.00/130.30), following a jury trial in Monroe County Supreme Court before Justice Francis A. Affonti. Petitioner was sentenced to an aggregate term of imprisonment of twenty-one years with five years of post-release supervision.

II. Factual Background and Procedural History

Petitioner was charged in Monroe County with sex counts of various sexual offenses against three underage victims: Bria B., Britney J., and Tashika P. The abuse was alleged to occurring over a period of four years, from 1997 to 2001. See Appx. A. Brittany J. was the petitioner's cousin. Bria B. and Tashika P. were sisters, who, along with their mother, shared living accommodations with Britney's mother (petitioner's aunt), Brenda, on and off from 1997 to 2000 in various apartments in the Rochester, New York area. T. 426-27, 438-40, 443, 454, 482-96, 675-87, 673-75, 692-98, 704-10.*fn1

The three victims testified at trial to petitioner having sexual contact with them. Petitioner took the stand in his own defense, denying that he had ever touched any of the girls, but admitted that he frequently visited Brenda's home to smoke marijuana and drink alcohol. According to petitioner, it was a "party house" where people typically gathered to get "tore up."

T. 771, 782-83, 785-87. He also testified that he had regularly sold cocaine, and that on one occasion he "jumped on" Brenda over a drug debt of $1500. He denied, however, that he beat Brenda because she reported his sexual abuse of the children to the police. T. 780-81, 793--96.

The jury acquitted petitioner on the first count of the indictment in connection with Bria B., and found petitioner guilty of the second, third, fifth, and sixth counts relating to Britney J. and Tashika P. T. 910-11. The fourth count, alleging a second incident of second-degree sodomy as to Tashika P., was dismissed by the trial court. T. 762-63. Petitioner was sentenced on July 1, 2004 to various, consecutive terms of imprisonment totaling 21 years. S. 12-13.

Petitioner appealed the judgment of conviction to the Appellate Division, Fourth Department, on the following grounds:

(1) A potential juror, who had disclosed that she was sexually abused as a child, should have been removed for cause;

(2) a second potential juror should have been struck for cause after she informed the court that she had trouble with the English language;

(3) the trial court committed reversible error in refusing to allow Britney J.'s aunt to testify about statements made by Britney indicating she had been sexually abused by a person other than petitioner; and (4) the sentence imposed was harsh and excessive. See Respondent's Appendix ("Appx.") D. The Fourth Department unanimously affirmed the judgment of conviction. People v. Berry, 43 A.D.3d 1365 (4th Dept. 2007), lv. denied, 9 N.Y.3d 1031 (2008). The instant petition for habeas corpus followed, in which petitioner alleges the same grounds for relief as he did in his appellate brief. See ...


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