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Lavar L. Green v. James T. Conway Superintendent of the Attica Correctional Facility

November 18, 2011


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


I. Introduction

Lavar L. Green ("Green" or "Petitioner") has filed a pro se habeas corpus petition pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody in violation of his federal constitutional rights. Petitioner is incarcerated pursuant to a judgment of conviction entered against him on December 17, 2004, following a jury trial in Monroe County Court on several counts of robbery and assault.

II. Factual Background and Procedural History

By an indictment filed on April 27, 2004, Green was charged with seven offenses which occurred on March 21, 2004: (1) first degree robbery (N.Y. Penal Law ("P.L.") § 160.15(3)) for forcibly stealing money and a chain from Theodus Gilley ("Gilley") while using a crowbar; (2) second degree robbery in the second degree (P.L. § 160.10(1) for forcibly stealing money from Gilley while aided by another person actually present; (3) second degree robbery (P.L. § 160.10(2)(a) for forcibly stealing property from, and physically injuring, Gilley in the course of a crime; (4) first degree robbery (P.L. § 160.15(3) for forcibly stealing a silver chain from John N. Carley ("Carley") while using a crowbar; (5) second degree robbery (P.L. § 160.10(1) for forcibly stealing property from Carley while aided by another person actually present; (6) second degree assault (P.L. § 120.05(2)) for causing physical injury to Gilley by means of a dangerous instrument, specifically a crowbar; and (7) second degree assault (P.L. § 120.05(6)) for causing physical injury to Gilley in the course of, and in furtherance of, the commission of a robbery.

Green entered pleas of not guilty and a jury trial commenced on August 17, 2004. Following is a summary of the pertinent evidence presented at trial.

Carley testified that on March 21, 2004, at about 2:45 a.m., he and his friend Gilley went to Country Sweet restaurant after being out at a hip-hop club earlier that evening. Carley and Gilley had driven there in separate cars. Melvin Scott ("Scott"), Carley's cousin, had too much to drink and was "out" in the front passenger's seat of Carley's car. Scott did not go into Country Sweet with Carley and Gilley.

Carley and Gilley were in the restaurant for about 25 to 30 minutes. Carley testified that Petitioner was inside the restaurant as well, and was giving him "funny looks". When Carley returned to his car, he noticed three men inside of it--one in the front driver's seat, one in the front passenger's seat, and one in the back seat. One of the men "looking for stuff" in his car was Petitioner. Twice Carley asked, "What are you doing in my vehicle?" The men did not respond.

As Carley approached the car, one of the men snatched a necklace from Carley's neck. Carley began fighting with that individual. The robber "broke free" from Carley, who then went into his trunk to get a crowbar. Everybody "scattered" and Carley began chasing the man (not Petitioner) who had stolen his chain.

Eventually, Carley had the man pinned against a car, and the man began calling for his friend. Carley by this point had dropped the crowbar and he let the man go. Carley then saw Green use the crowbar to hit Gilley in the back of the head. Carley grabbed Green and pinned him up against a house.

Carley testified that he somehow ended up with the crowbar back in his hands and during the struggle with Green, he (Carley) hit Green in self-defense. Carley then grabbed Green and dragged him back to Country Sweet, after which the police arrived. Carley saw a bloody laceration about two inches long on Gilley's head.

Gilley, the other victim, testified that when he and Carley left Country Sweet, they saw "a whole bunch of people in [Carley]'s car." Gilley thought they knew Scott, who was still passed out in the front seat. Gilley walked up and said, "What's going on?" Then, Gilley, recalled, they all "started fighting".

According to Gilley, two of the men jumped on him and one of them jumped on Carley. Gilley stated that while they were fighting, the men demanded money. Gilley testified that after they took his money, they all ran off. Gilley and Carley both chased after Green. Gilley testified that they caught Green and brought him back to Country Sweet.

Gilley testified that Green was one of the men who had jumped him. Gilley was hit with a crowbar or "something", but he did see the person who hit him. As a result of being hit, Gilley had to go to the hospital; his wound required three surgical staples, and he had to miss three days of work.

Rochester Police Department Officer Thomas Shaw was working marked patrol on March 21, 2004. At about 3 a.m., Officer Shaw responded to Country Sweet in response to a call regarding a large fight possibly involving a gun. When he arrived, Officer Shaw saw three individual up against a fence, fighting.

Officer Shaw saw something "flashing" (i.e., the crowbar), and he yelled out, "[D]rop it, drop it!" Officer Shaw could not determine who had the crowbar, however.

As the result of his on-scene investigation, Officer Shaw took Green into custody. Green told Officer Shaw that the men had tried to rob items from his car, which was parked in the middle of the parking lot behind Country Sweet, blocking traffic. The car's doors were open and the engine was running. When responding Officer Devincentis looked inside the car, he observed several music CDs and a stereo system on the passenger seat. On the driver's side seat, Officer Devincentis saw an open wallet bearing a vehicle registration in Gilley's name.

Upon searching Green, Officer Shaw found $251 in cash. Green said that it was his money and offered a pay stub for $250 as proof. Officer Shaw observed that Green had a small cut on the top of his head toward his hairline and that Gilley had a laceration on the top of his head which was bleeding.

At the close of the prosecution's proof, defense counsel moved for a trial order of dismissal as to each count. The prosecution conceded that there was no evidence as to count four, charging Green with first degree robbery for forcibly stealing a silver chain from Carley. The trial court accordingly dismissed count four.

Green testified in his own behalf that he had $250 in cash on him that evening because he had just cashed his check from work. On his way home from the Bay & Goodman bar, he stopped at Country Sweet to get something to eat and parked in the back parking lot. While at the restaurant, Green noticed two people walk in who were kind of loud and doing a lot of laughing. Green thought they were "pretty drunk".

After he got his food, he went out to his car. Green started his car, but realized that he forgot his drink and went back inside to get his drink. When Green came back outside, he noticed that his car had been moved and that the doors were open. Green heard someone say, "Yo, he got a gun." Green noticed that one of the men who had testified against him (i.e., Carley or Gilley) had something in his hands which appeared to be a gun. Green ducked for cover.

When Green looked up, he saw two men chasing another man. Green ran in that direction, because he had seen one of the men who had just been in his car. When Green got to them, someone grabbed him. Green asked him, "Why are you letting them go? They just tried to rob me." The men said, "No, you were with them," and started hitting Green in the head and leg with the crowbar. A couple of minutes later the police arrived.

Green testified that he did not do anything to help anyone rob Carley or Gilley. He conceded that he had a prior criminal history, having been convicted on May 12, 2000, of one count of possession of a firearm in federal court to which he sentenced to four years in federal prison. The underlying facts were that on September 9, 1999, the police pulled Green over and during a pat-frisk, found a semi-automatic .25 caliber handgun with the serial number defaced, secreted in Green's boot. Green denied that the gun was his, but conceded that he had purchased it for $200 and had hidden it from the police.

At the close of the defense case, trial counsel renewed his motion for trial order of dismissal with regard to counts 1, 4, and 6, on the basis that the alleged weapon was not really a crowbar but rather was a lug-nut wrench. The trial court denied the motion.

On August 19, 2004, the jury convicted Green of all the remaining counts. On December 17, 2004, the trial court sentenced Green, as a second violent felony offender, to an ...

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