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Jermaine Brown v. Harold Graham

August 9, 2011

JERMAINE BROWN, PETITIONER,
v.
HAROLD GRAHAM, SUPERINTENDENT, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se petitioner Jermaine Brown ("Brown" or "Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his state custody. Brown is incarcerated as the result of a 2005 judgment of conviction, following a jury trial in New York State Supreme Court (Monroe County), on charges of first degree assault.

II. Factual Background and Procedural History

A. The Trial and Sentencing

On April 29, 2004, Richard Ross ("Ross") sustained four puncture wounds to his back while involved in an altercation with Petitioner. Ross, who had to be hospitalized for four days, suffered the partial collapse of his right lung. The treating physician testified that the collapsed lung, or pneumothorax, initially was not severe, but enlarged to the point that it posed a serious, potentially life threatening situation. As a consequence, the doctors had to cut open Ross's chest to insert a chest tube. Ross testified that one year after the stabbing, he still was numb on the right side of his body and continued to feel the result of having one of his ribs broken to facilitate insertion of the chest tube. His back remained scarred at the time of trial.

Ross testified that he went to the apartment where Petitioner was drinking and playing cards to talk to him about why he (Petitioner) was harassing Lakisha West ("West"). At the time, West was Ross's girlfriend. She also was the mother of Petitioner's children.

Ross recalled that he walked into the second floor apartment and asked Petitioner to come outside if he wanted to talk about the issue. Ross then turned around to go outside. When he arrived at the first stair-landing, Ross heard a noise that sounded "like someone was scraffling [sic], like someone grabbing somebody or pushing somebody out of the way."

Ross turned around to see that Petitioner had just flung himself off the top of the stairs and was "just right there in [Ross's] face." Ross bent over and "scooped" up Petitioner, and, using his shoulders to hoist Petitioner's weight, threw him down the rest of the stairs.

Essentially a melee ensued at the bottom of the stairs. Ross testified that he saw blood and a knife handle and heard people screaming. At first, Ross did not realize that he had been stabbed.

After someone grabbed Petitioner, who then got up and ran outside, Ross realized that he was bleeding and that his clothes were "full of blood." Ross attempted to follow Petitioner but did not make it off the front porch because he was so dizzy and light-headed. Unable to catch his breath, Ross then passed out. He regained consciousness in the hospital to learn that he had four puncture wounds to his back and a partially collapsed right lung caused by the stabbings.

West testified that she had followed Ross to the apartment that night and she corroborated Ross's version of events. During the struggle between Ross and Petitioner, West observed Petitioner's "hand going up and down" and she saw Petitioner "sticking" Ross in the back with a knife having a five-inch-long blade.

The defense called Lawrence Bennett ("Bennett"), one of the individuals who had been at the apartment. According to Bennett, who was washing dishes and cleaning baby bottles at the time, Ross walked in unexpectedly and confronted Petitioner, who was empty-handed. Petitioner started arguing with Ross. Bennett's aunt, Lydia Burton ("Burton"), who was the tenant in the apartment, told Petitioner to leave. According to Bennett, West and Burton attempted to restrain Petitioner who was trying to follow Ross outside.

Bennett testified that he saw Petitioner and Ross "tussling" on the landing, and then the two men tumbled all the way to the bottom of the stairs. Bennett stated that he did not see anything in Petitioner's hands. He could not see Ross's hands at all.

After making sure the children were not in harm's way, Bennett ran downstairs to find Ross on top of Petitioner. Petitioner had Ross by his wrist and there was a handle of a knife in Ross's hand. Bennett stated that this was the first time he had seen any weapon.

Bennett testified that he snatched the knife-handle from Ross's hands and threw it out the door. Bennett observed blood on both men. He proceeded to go upstairs to mop up the blood because the children were slipping on it.

Bennett testified at trial that he found the knifeblade later that night or early the following day and discarded it in the garbage can. However, at the grand jury, Bennett claimed that he had taken the knifeblade upstairs and placed it on his bureau. He also claimed he had called the police to tell them what he had done.

The jury rejected the defense theory and returned a verdict finding Brown guilty of first degree assault.

B. Post-Conviction Proceedings

Petitioner was sentenced to a determinate term of fifteen years, to be followed by five years of post-release supervision.

Petitioner filed a motion to vacate the judgment prior to perfecting his direct appeal. His appeal of the motion to vacate then was consolidated with his direct appeal. The Appellate Division, Fourth Department unanimously affirmed the ...


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