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Joseph W. Green, Jr v. John B. Lempke

January 20, 2011

JOSEPH W. GREEN, JR., PETITIONER,
v.
JOHN B. LEMPKE 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 Joseph W. Green, Jr. ("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 March 22, 2005, in New York State, County Court, Livingston County, convicting him, after a jury trial, of one count of Burglary in the Second Degree (N.Y. Penal Law ("Penal Law") § 140.25 [2]) and three counts of Forcible Touching (Penal Law § 130.52). Petitioner was sentenced to a determinate prison term of eight years with five years post-release supervision on the burglary count and three concurrent one-year jail sentences on the forcible touching counts.

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

II. Factual Background and Procedural History

A. Introduction

On the afternoon of July 7, 2004, Petitioner entered the home of L.B.*fn1 without her permission. Once inside, Petitioner expressed his sexual desire for her, touched her breasts, put his hands between her legs, grabbed her hand and tried to make her touch his penis. L.B. pulled away from Petitioner, and Petitioner then proceeded to sit down on L.B.'s couch. The encounter was interrupted when a neighbor entered L.B.'s house. After Petitioner left, L.B. reported the incident to her neighbor. Petitioner was subsequently arrested.

By Livingston County Indictment No. 2004-226, Petitioner was charged with one count of Burglary in the Second Degree (Penal Law § 140.25 [2]) and three counts of Sexual Abuse in the First Degree (Penal Law § 130.65 [1]).

B. The Trial

On February 14, 2005, a jury trial was held before the Hon. Ronald A. Cicoria.

1. The People's Case

At approximately 3:00 p.m. on July 7, 2004, Amanda Worden ("Worden") and her neighbor, L.B., went to a grocery store. While L.B. was inside the store, Worden saw Petitioner in the parking lot and, Petitioner, who knew Worden, asked her for a ride to a doctor's office. Worden agreed to take him. Trial Trans. [T.T.] 19-22, 32. Worden first drove home, dropping L.B. off at her trailer so that L.B. could put away her groceries. T.T. 23, 33. Petitioner went inside Worden's home, where he asked Worden if L.B. had a boyfriend. Worden told Petitioner that L.B.'s boyfriend was in prison, and Petitioner then left Worden's home. T.T. 23.

While L.B. was putting away her groceries inside her trailer, she heard the sliding door of her trailer open. She turned toward the door and saw Petitioner standing inside her trailer. T.T. 35, 42. Petitioner asked L.B. when she had last had sex. L.B. asked Petitioner why he was asking her, and Petitioner stated that since her fiancee was in prison, he would not find out. L.B. told Petitioner that she would not cheat on her fiancee. T.T. 36. Petitioner then touched L.B.'s breasts and put his hands between her legs. He also grabbed L.B.'s hand and tried to put it on his penis. T.T. 36-37, 42, 47. L.B. pulled her hand away from Petitioner, afraid he would rape and kill her. T.T. 38. Petitioner eventually moved away from L.B., sat on her couch, and invited her to join him. L.B. refused. T.T. 39.

At that point, Worden, who was nervous because of her earlier conversation with Petitioner, went to L.B.'s house. When Worden entered the house, Petitioner put his hands up and said, "I'm not doing anything." T.T. 24, 39. L.B. appeared nervous and she and Worden walked out of the trailer together. Worden's husband, Victor, then took Petitioner to the doctor's office. T.T. 25, 40, 54. L.B., who was crying and upset, told Worden what had happened. T.T. 26, 40. Worden then called her husband and told him not to bring Petitioner back to her house. T.T. 26. As Victor drove Petitioner home, Petitioner told Victor that he wanted to go back to L.B.'s house to "get a blow job." T.T. 56.

Police Officer Kimberly Moran met with L.B. and interviewed her. T.T. 59-60. Officer Moran then met with Petitioner at the police station and advised him of his Miranda rights. T.T. 61, 63. Petitioner subsequently denied touching L.B. T.T. 65-66.

2. The Defense's Case

Petitioner presented no evidence at trial, and did not ...


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