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Jose Perez v. John Lempke

July 13, 2011


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


I. Introduction

Jose R. Perez ("Perez" or "Petitioner") brings this habeas corpus application pursuant to 28 U.S.C. § 2254 alleging that he is in Respondent's custody at Five Points Correctional Facility in violation of his federal constitutional rights. Petitioner was convicted after a jury trial in Seneca County Court (Bender, J.) on charges of third degree criminal possession of a weapon, second degree attempted assault, endangering the welfare of a child, and second degree harassment. The charges stemmed from an incident in which Petitioner repeatedly struck his former girlfriend Bobbie Jo Halstead ("Halstead") with a wrench, in the presence of Halstead's young son, mother, and several witnesses.

II. Factual Background

A. The Prosecution's Case at Trial

In May 2007, Nicole Miner ("Miner") was at Halstead's apartment with Petitioner, and Halstead was chatting with someone else. Halstead had stopped dating Petitioner about a month or two prior earlier. Petitioner told Miner, "[T]his fucking bitch is done messing with me for the last time . . . I don't know what I am going to do, but I am going to make her sorry. I am going to hurt her." T.276.*fn1 Sometime later in that month or the next, Petitioner called Halstead and threatened her.

Shortly after midnight on June 14, 2007, Bernard Tibbs ("Tibbs"), drove Halstead and her four-year-old son home to the apartment that Halstead shared with her mother, Donna Stone ("Stone"). Petitioner was lying in wait. As soon as Halstead opened her car door, he punched her in the head. When Halstead got out of the car, Petitioner hit her in the ear, eye, and nose with a nickel plated wrench or ratchet. Hearing her daughter's "awful scream," Stone ran outside.

During the attack, Tibbs held Halstead's child because he did not want him to get hurt. When Petitioner started to chase Tibbs, threatening to kill him, Tibbs directed the child to run into the apartment. The child was screaming throughout Petitioner's attack on Halstead.

Neighbor Deon Watkins ("Watkins") was on his way to bed when he heard Halstead screaming. Looking out his window, Watkins saw the attack in progress. While Stone was attempting to persuade Petitioner to leave, Petitioner struck Halstead again with the metal object. Petitioner left only after another neighbor, told Petitioner that "he needed to get the heck out of there." T.257.

While the police were inside Halstead's apartment filling out paperwork, Petitioner called Halstead's cell telephone. Halstead's mother answered and instead of giving the phone to Halstead, placed Petitioner on speaker-phone. Petitioner stated that Halstead deserved what she got and that he was going to kill her. T.285.

B. The Defense Case

Kevin Erb ("Erb") met Petitioner at the Seneca County Jail in the Fall of 2007, while Erb was being held for a probation violation. Erb recognized Petitioner from an incident three months earlier based upon Petitioner's hairstyle, which he described as "long dreads."

On June 14, 2007, while on his way to see a friend at the apartment complex where Halstead and her mother lived, Erb saw Petitioner grab a blond-haired woman by her hair and slap her two or three times with an open hand. Erb said that he "wasn't like paying, like a lot of details [sic]" because he did not want to get involved. T.368. Erb did not intervene because he did not want anything to do with the police.

Willie Love ("Love") encountered Tibbs (one of the eyewitnesses) at the Seneca County Jail in January of 2008. Tibbs said that he had to testify against Petitioner. According to Love, Tibbs saw Petitioner slap Halstead. Tibbs then was chased by Petitioner. Tibbs purportedly also told Love that at the time of the incident, "no baby [was] there" and "there was no metal object." T.379. Love had several prior convictions, including harassment, assault, and larceny.

The jury returned a verdict of guilty on all charges (Criminal Possession of a Weapon in the Third Degree, Attempted Assault in the Second Degree, Endangering the Welfare of a Child; and Harassment in the Second Degree). Petitioner was sentenced, as a persistent felony offender, to concurrent prison terms of fifteen years to life on the third-degree criminal possession of a weapon and attempted second-degree assault ...

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