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Anthony L. Breedlove v. Superintendent J. Berbary

August 5, 2011


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


I. Introduction

Anthony L. Breedlove ("Breedlove" or "Petitioner") has filed a pro se 28 U.S.C. § 2254 habeas corpus petition alleging that he is being held in state custody in violation of his federal constitutional rights. Breedlove is incarcerated at Upstate Correctional Facility as the result of a December 19, 2003 judgment of conviction entered in New York State Chemung County Court. Breedlove was found guilty, following a jury trial, of depraved indifference murder, second degree criminal possession of a weapon, and two counts of second degree assault.

II. Factual Background and Procedural History

A. Pre-Trial Proceedings

By Chemung County Indictment Number 2003-38, a grand jury charged petitioner with two counts of Murder in the Second Degree (N.Y. Penal Law § 125.25(1)) (intentional murder) and (N.Y. Penal Law § 125.25(2)) (depraved indifference murder), Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03(2)), and two counts of Assault in the Second Degree (N.Y. Penal Law § 125.05(2)). The charges stemmed from several shootings that occurred at a party hosted by Justine Brockenberry ("Brockenberry") on the night of June 10, 2003. Courtney Swartz ("Swartz"), Michael Torres ("Torres"), Jereck Abrams ("Abrams"), Petitioner and Early Everett ("Everett") were among the guests. Swartz was shot five times and died as a result of his injuries. Torres, who was in the bedroom with Swartz, was shot in his shoulder. Carolyn Payne ("Payne"), another partygoer, was shot in the finger. On July 3, 2003, the trial court conducted a hearing and subsequently denied Petitioner's motion to suppress identification evidence. On October 6, 2003, Petitioner's jury trial commenced.

B. The Trial

1. The Prosecution's Case

On June 10, 2003, Justine Brockenberry ("Brockenberry") held a party at her home in the East Gate Apartments in the City of Elmira. She had invited Petitioner and Everett to the party, telling them that she had also invited Swartz (the decedent) and Abrams. Petitioner and Everett arrived for the party around 7:00 or 8:00 p.m. Abrams, accompanied by Swartz and Torres, arrived around 10:30 or 11:00 p.m.

At some time later on, Torres told Abrams that he wanted to leave. Abrams, Torres, and Swartz left Brockenberry's house and went to 395 West Water Street, where Abrams and Swartz lived.

Abrams and Swartz decided to call Brockenberry's house to find out if there was an after-party. They spoke with Shaquia Hackett ("Hackett"); Nicora Bailor ("Bailor"), whom Abrams had once dated; and a woman named Tatiana. Bailor said something to Everett about Abrams, and Everett started yelling, "Oh, them faggots, they'll get it. Fuck these niggers, these big-ass niggers. Tell them to come over!"

Swartz, Abrams, and Torres decided to return to Brockenberry's house to fight Everett. Upon arriving, the three men went immediately into a bedroom, where Swartz and Abrams had planned the fight to take place. The strategy was for Abrams to get a knife from the kitchen. When Swartz grabbed Everett, Abrams would rush Petitioner with the knife to prevent Petitioner from intervening. Torres was supposed to remain in the bedroom

When it was time to carry out the plan, Swartz and Abrams left the bedroom. Abrams never obtained the knife as planned, however. Furthermore, Swartz was unarmed.

Swartz grabbed Everett, put his arm around Everett's neck, and began choking him. As Abrams walked toward Petitioner, he saw Petitioner pull out a gun from his coat pocket and shoot at Swartz. Abrams ducked into the kitchen. Swartz fled toward the back bedroom, but Petitioner continued firing at him. Swartz went back into the bedroom, joining Torres, and closed the door. Torres saw a few bullets come through the door. When the door flew open, Torres backed up against it to close it and grabbed Swartz, pulling him to the floor. Torres was then shot in the back of his shoulder.

Swartz pushed Torres to the floor, and Torres crawled under the bed. Swartz was lying on the floor bleeding from his mouth.

Carolyn Payne ("Payne"), who was also at Brockenberry's house, saw Petitioner firing his gun. After two shots, she ran into a bedroom and realized that she had been shot in her left pinky finger.

Petitioner and Everett then ran out of the house. Abrams locked the door behind them, told someone to call 911, and checked on Swartz, who was on the floor in the bedroom gasping for air. Abrams ran across the street to Kim Daniels's home and called 911.

Amber Lockner ("Lockner"), an acquaintance of Petitioner's, was in the area of the East Gate Apartments in the early morning hours of January 11, 2003. When she knocked on the front door of Petitioner's house to see if he was still up, no one answered.

Petitioner and Everett then came running up to Lockner's car and asked for a ride to the gas station. Lockner described Petitioner as looking sick, sweaty, and shaken. Petitioner said that he needed to go to Ithaca. Lockner said she could not take him, but she invited him and Everett to use the phone at her house.

After Petitioner made a phone call, Petitioner poured chlorine bleach on his hands and rubbed his face with the bleach. Later, Lockner saw Petitioner in her backyard removing silver duct tape from the handle of a black gun.*fn1 Lockner called a taxicab for Petitioner and Everett.

Swartz died from his wounds, having sustained three penetrating wounds to his back, and one to his lower right arm. He also had been grazed by a bullet on his upper right buttock. The nature of two of the back wounds indicated that Swartz was shot at a close range of a few inches.

2. Petitioner's Case

Petitioner did not present any witnesses at trial.

3. The Verdict and Sentence

On October 9, 2003, the jury acquitted petitioner of second degree (intentional) murder, but convicted him of second degree (depraved indifference) murder, second degree weapons-possession, and two counts ...

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