The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Larashai Burton ("petitioner") has brought a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Supreme Court of Assault in the First Degree (N.Y. Penal L. § 120.10(1)) and Gang Assault in the First Degree (N.Y. Penal L. § 120.07) following a bench trial before Justice Russell Buscaglia. Petitioner was sentenced to two concurrent, determinate terms of imprisonment of twenty years, followed by five years of post-release supervision.
II. Factual Background and Procedural History
In the early morning hours of April 11, 2004, Buffalo Police Officer John Williams ("Williams") was on routine patrol in the area of Elmwood and Allen Streets, where he saw a man writing down the license plate number of a maroon vehicle. Upon further examination, Williams saw David Brown ("the victim"), lying in the street near the maroon car, apparently unconscious. Williams also observed petitioner and three other men standing around the car. When he approached the group, petitioner told Williams that he and one of the other men had walked out of the restaurant at the corner ("Jim's Steakout") and discovered the victim lying behind the car. Williams called for backup and all four suspects were arrested. Trial Tr. Vol. II at 26, 40, 46, 49, 52, 99, 105.
The victim was taken to Erie County Medical Center, where he was treated for life threatening head injuries caused by "some sort of a violent action." Trial Tr. Vol. III at 5, 8, 10-12, 19, 22, 31-33. Following the attack, the victim could not remember the incident or the events leading up to it. He did testify that, as a result of his injuries, he had to re-learn to walk, speak, feed himself, and tie his shoes while in the hospital. Trial Tr. Vol. I at 9-12, 17.
Employees of Jim's Steakout testified to what they had seen that evening outside of the restaurant. The restaurant's assistant manager, Kevin Bell, stated that he saw a man in an orange shirt stomp on the victim twice. Upon realizing that it was not a "run of the mill fight," he walked outside to take down the license plate number of the maroon vehicle. Likewise, manager Robert Eppolito testified that he saw a man with a "yellow-orange" shirt getting into the driver's seat of the maroon car. He also identified petitioner from a photo array as the driver in the yellow shirt.
Trial Tr. Vol. III at 45, 108-09, 116-123, 127, 133-34, 155, 180, 185-87, 218-19; Huntley/Wade Tr. 25, 39.
Petitioner's co-defendant Calvin Martin ("Martin") also testified for the prosecution at petitioner's trial.*fn1 He stated that he was with petitioner and two other men on the morning of April 11, 2004. They had left a bar at about 4:00a.m. and stopped at Jim's Steakout to eat. According to Martin, he was leaving the restaurant with his food when he was aggressively panhandled by the victim. The confrontation escalated when Martin's brother punched the victim after observing the victim reach for Martin's pocket. Martin testified to kicking the victim in the legs, and stated that he observed petitioner stomp petitioner twice in the head after he had fallen to the ground. Trial Tr. Vol. IV at 78-79. He further testified that petitioner had been the only member of the group that evening wearing an orange shirt. Id. at 86.
The trial court found petitioner guilty of first-degree assault and first-degree gang assault, and acquitted him on an additional charge of attempted murder in the second degree. Verdict Tr. 4-5. Petitioner was subsequently sentenced as a second violent felony offender to two concurrent, determinate prison terms of twenty years, with five years of post-release supervision. Sentencing Tr. 13-14.
Petitioner appealed his conviction to the Appellate Division, Fourth Department, on the grounds that the verdict was against the weight of the evidence and that the sentence was unduly harsh and excessive. See Resp't Exhibits ("Ex.") B. The Fourth Department unanimously affirmed the judgment of conviction. People v. Burton, 38 A.D.3d 1290 (4th Dept. 2007), amended on rearg., 41 A.D.3d 1325 (2007).
On January 30, 2007, petitioner filed a motion to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. L. § 440.10, alleging that Officer Williams knowingly committed perjury when he testified at trial and that Williams retrieved from the restaurant a videotape exonerating the petitioner. The state court denied that motion Ex. C & D.
Petitioner then filed a timely petition for writ of habeas corpus with this Court, seeking relief on the sole ground of actual innocence. Petition ("Pet.") at 31-32 (Dkt. #1). For the reasons that follow, I find that petitioner ...