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Perez Aughtry v. Dale Artus

June 13, 2011

PEREZ AUGHTRY,
PETITIONER,
v.
DALE ARTUS, RESPONDENT.



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

07-B-2499,

ORDER

I. Introduction

Pro se petitioner Perez Aughtry ("petitioner") has filed a petition for writ habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his conviction in Erie County Court of Kidnapping in the Second Degree (N.Y. Penal L. § 135.20) and Unlawful Imprisonment in the First Degree (§ 135.10). The judgment of conviction, entered on July 26, 2007, followed a non-jury trial before Judge Michael F. Pietruszka. He was sentenced to fifteen years imprisonment plus five years of post-release supervision for the kidnapping conviction, concurrent to an indeterminate term of two to four years for the unlawful imprisonment conviction.

II. Factual Background and Procedural History

Petitioner's conviction stems from an incident wherein petitioner accosted Shetia Dixon ("the victim") on the street, carried her to a nearby apartment building, restrained her, and insisted that she call her boyfriend, with whom petitioner had a grudge over a drug deal gone wrong.

According to the trial testimony, Marciea Dixon ("Dixon"), the victim's sister, was dating petitioner and helping him sell drugs from the Shoreline Apartments in the City of Buffalo. On June 6, 2006, Dixon called the victim's boyfriend, Mesha Branch ("Branch"), and offered to sell him some marijuana. T. 30, 40-41, 66, 69, 85-87, 101.*fn1 When Dixon showed Branch the marijuana, Branch was displeased with the quality and price of the drugs. He then "snatched" the bag containing the marijuana, causing it to spill out onto the floor. According to Dixon, Branch took some of the marijuana without paying for it and left the apartment. As a result, Dixon called petitioner to advise him that he had just been robbed. T. 46, 49, 51, 69-70, 92-94. She also called her sister, the victim, to tell her what had happened. T. 51, 70.

One day later, the victim was walking to a friend's house when she encountered petitioner, who pushed her and accused her of "set[ting] him up." T. 114. The victim and petitioner were acquainted with one another, as the two had a brief sexual relationship a few months prior while the victim's boyfriend, Branch, was serving a short jail term. T. 107-110. The victim testified that petitioner threatened her, and she told him that she did not know what he was talking about. T. 115-116. The victim then called her sister and told her to talk to petitioner and "straighten it out." T. 116.

On June 8, 2006, the victim was walking to work when she was approached by petitioner, who again insisted on knowing why she set him up. T. 117, 120, 157-158. A woman who was accompanying petitioner then started a fight with the victim at petitioner's urging. The victim, however, ultimately fought the woman off.

T. 120-121, 169. At that point, petitioner picked the victim up and slung her over his shoulder, telling her to "call [her] boyfriend so he can shoot him." T. 121-122. Petitioner then carried the victim, who was screaming, to a nearby apartment complex, telling her to calm down and to call Branch. T. 122, 173. While petitioner was still holding her, he was "buzzed" into the apartment building, forced the victim into the elevator, and brought her into the apartment of an acquaintance. T. 128, 130-132.

Once inside the apartment, petitioner told the victim to sit down, threw a telephone to her, and instructed her to call her Branch. The victim responded that she could not contact her boyfriend because he did not have a phone at that time. T. 134-135. The victim further testified that petitioner was holding a gun while he demanded that she make the call. After unsuccessfully calling her mother from the phone, the victim called her father, crying, and told him that petitioner was trying to kill her.

Petitioner snatched the telephone and threatened her again by cocking the gun and pointing it at her head. T. 135-138.

The victim was ultimately able to flee from the apartment after the telephone rang, and, the occupant of the apartment, believing the person on the phone was the victim's father, advised petitioner to "get her out of here." T. 138-141, 191. The victim ran to her mother's house to call the police, and subsequently went to the police station to file a report. T. 145-146, 208. Police then took the victim to petitioner's home in the Shoreline Apartments, where she identified him as the perpetrator. T. 146.

The defense's position at trial was that a kidnapping did not occur, but merely an attempt to compel the victim to call her boyfriend to meet with petitioner to ...


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