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Carlos Bermudez v. James Conway

March 21, 2011

CARLOS BERMUDEZ, PETITIONER,
v.
JAMES CONWAY 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 Carlos Bermudez ("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 November 3, 2005, in New York State, County Court, Erie County (Hon. Shirley Troutman), convicting him, after a bench trial, of Assault in the First Degree (N.Y. Penal Law ("Penal Law") § 120.10 [1]).

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

II. Factual Background and Procedural History

The charges arose from an incident that occurred on May 10, 2004 in the City of Buffalo, New York wherein Felix Medina ("Medina" or "the victim") was shot with a .44 caliber revolver, sustaining serious injuries.

On May 10, 2004, at approximately 6:45 p.m., Medina and Michael Kemp ("Kemp") were going to get their hair put into braids at a friend's house. Trial Trans. [T.T.] 24. They exited a bus on the west side of Buffalo and approached the corner of Lafayette and Gelston Streets. T.T. 24-26. As they did so, Medina saw three Hispanic males in a teal colored Honda Civic hatchback, and approached the vehicle. T.T. 27, 62. When Medina was approximately ten yards away from the vehicle, the driver leaned back and Petitioner, who was known to Medina as "Charlie" and who was located in the front passenger side of the vehicle, reached past the driver and pointed a gun at Medina. Several shots were fired. T.T. 29-31, 66-67. One of the shots hit Medina's arm, and he began to run away. The vehicle followed Medina, and more shots were fired.*fn1 T.T. 32. Medina then jumped over a fence and into a backyard where he encountered a woman coming out of her back door. T.T. 33. Medina entered the woman's house and told her to call 911, which she did. Police and paramedics arrived shortly thereafter, and Petitioner told police at that time that "Charlie" shot him. T.T. 31.

On February 15, 2005, Petitioner was charged in a three-count indictment with Attempted Murder in the Second Degree (Penal Law §§ 110.00, 125.25 [1]), Assault in the First Degree (Penal Law § 120.10 [1]), and Criminal Use of a Firearm in the First Degree (Penal Law § 265.09 [1][a]). See Resp't Ex. A (Ind. No. 01700-2004).

A bench trial was conducted in the Erie County Court before the Hon. Shirley Troutman, and Petitioner was found guilty of Assault in the First Degree and Criminal Use of a Firearm in the First Degree. He was found not guilty of Attempted Murder in the Second Degree. Verdict Mins. of 07/22/05 2-3. Subsequently, the county court vacated the conviction for Criminal Use of a Firearm in the First Degree in light of Petitioner's acquittal for Attempted Murder in the Second Degree. Motion Mins. of 07/27/05 4-5.

On November 3, 2005, Petitioner was sentenced to a determinate term of fifteen years imprisonment and five years post-release supervision. Sentencing Mins. of 11/03/05 14.

The Appellate Division, Fourth Department unanimously affirmed Petitioner's judgment of conviction on March 16, 2007. People v. Bermudez, 38 A.D.3d 1325 (4th Dep't 2007) (Resp't Ex. B); lv. denied, 9 N.Y.3d 840 (2007) (Resp't Ex. C).

This habeas corpus petition*fn2 followed, wherein Petitioner seeks relief on the following grounds: (1) that he was denied due process when evidence of uncharged crimes was offered; (2) that the verdict was against the weight of the evidence; (3) that he was denied his right to a fair trial by the prosecutor's impeachment of his own witness; and (4) that his sentence was unduly harsh and excessive. See Pet. ¶ 22A-D (Dkt. # 1).

III. General Principles Applicable to ...


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