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Ali v. Unger

United States District Court, Second Circuit

January 23, 2014

ANDREW ALI, Petitioner,
DAVID UNGER, Respondent.


MICHAEL A. TELESCA, District Judge.

I. Introduction

Andrew Ali ("Ali" or "Petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that he is being unconstitutionally detained in Respondent's custody. Petitioner's incarceration is the result of a judgment of conviction entered against him on December 22, 2009, following a jury trial in Erie County Court of New York State (Franczyk, J.) on charges of Assault in the First Degree (N.Y. Penal Law § 120.10(1)).

II. Factual Background and Procedural History

A. Petitioner's Trial

1. The Prosecution's Case

On April 10, 2009, fourteen-year-old Paul Manning ("Manning") was at the Sprenger Basketball Court in the City of Buffalo, where he became involved in a fight with a teenager whom he identified as Robert Royal ("Royal"). After the fight, Royal left but did not take his cell phone with him. Manning picked up the phone and left as well.

While walking home, Manning was approached by a truck containing Royal, Petitioner, and several other individuals. According to Manning, the truck's occupants told him and his companions to stop. They then got out of the truck, armed with baseball bats. Petitioner demanded to know why Manning had jumped his nephew and threatened to kill Manning and his companions. At that point, Royal's brother got out of the truck and struck Manning in the face, causing a lump on his eye. Petitioner and his companions got back in the truck and drove away.

When Manning arrived home, he was asked what happened to his eye by Ronald Brown ("Brown"), the father of his sister's baby. Manning did not reply at first, but he eventually directed Brown to Petitioner's residence at 1977 Bailey Avenue. En route to Bailey Avenue, they were joined by four of Manning's friends.

Once they arrived at Petitioner's house, Brown and Manning went up onto the porch, while the others remained on the sidewalk. Brown knocked heavily on the front door leading to Petitioner's upstairs apartment, waited, and knocked again. According to Brown, Petitioner came running down the stairs, opened the door, rushed out at him, produced a knife from behind his back, and tried to stab Brown in the face. Brown deflected the knife and tried to turn and run away, but Petitioner stabbed him in the lower left side of his back. T.291-92. Brown testified that as he was attempting to run away, Petitioner was grabbing at his left shoulder. Brown ran towards the right side of the porch to try to escape by jumping over the railing. T.293. Petitioner grabbed him again from behind and kept stabbing at him. T.294.

Brown finally was able to get away by jumping over the railing. He hit a garbage can face-first as he landed, got up, and ran down the street to his sister's family's house. No one answered the door, so he staggered past three or four more houses before finally collapsing. Several passers-by summoned emergency assistance.

Brown first regained consciousness in the hospital after his surgery to repair the damage from the five stab wounds he sustained (one on his hand, one on his chest, one on his back, and two on his upper left arm). T.305-06. The ulnar nerve in his left arm had been severed completely, and the left median nerve was almost totally transected. At the time of trial, Brown still had pain, cramping, and weakness in his hand and arm.

When Officer Mark Constantino ("Officer Constantino") of the Buffalo Police Department ("BPD") responded to the scene, he observed Petitioner pacing back and forth on the porch with a knife in his hand repeating, "[T]hese mother fuckers, these mother fuckers... I stabbed him, I stabbed him." T.406. Officer Constantino ordered Petitioner to drop the knife and come down from the porch. Petitioner complied, and they placed him in custody. Petitioner told Constantino that he had stabbed Brown, but that it was in self-defense because "they" kept trying to jump his stepson, threw bricks at his house, and tried to kick in his door. T.415.

Detective Mark Vaughn ("Vaughn") interviewed Petitioner and took a statement from him at the BPD homicide office. Petitioner told Vaughn that he had stabbed Brown on his front porch and explained that it was the result of his stepson being "jumped" by some boys earlier in the day. According to Petitioner, his stepson "got the best of one of th[o]se boys" and someone in the group stated, "[T]his shit ain't over." Petitioner related that a few minutes after he and his stepson arrived home, the boys came to his house and began throwing rocks at it. Petitioner went downstairs, grabbed a knife, and got into a fistfight with one of the boys. According to Petitioner, the boys came up onto the porch and jumped him, so he started swinging the knife at him. When Petitioner was able to free himself, he went upstairs and told his wife to call 911. Petitioner also stated that one of the boys had a black gun in his right hand.

When Detective James Lema ("Lema") interviewed Petitioner's wife, Zeina Ali ("Mrs. Ali"), he observed nothing out of the ordinary with her demeanor. Lema also did not see any broken windows in the apartment.

Detectives Reginald Minor ("Minor") and Phil Torre ("Torre") of the BPD responded to the scene, where they found an eight-inch butcher's knife in Petitioner's front yard. Minor testified that there was blood on the knife, the porch railing, a nearby car, and a garbage can. There were no signs of forced entry. Torre testified there was a small amount of blood on the porch and a blood trail that led over the railing to a vehicle parked in the driveway and continued to the area in the street where Brown was treated by paramedics. T.460-61. Although Torre observed a couple of stones and sticks on the front lawn, he did not see any sticks, stones, or bricks in the street. No other weapons besides the butcher's knife were recovered at the scene.

2. The Defense Case

Casey Shemski ("Shemski") testified that he saw seven to ten teenagers standing outside Petitioner's house, saw "something" in their hands, and heard the sound of glass crashing. According to Shemski, he observed a man "breaking into" the door going to the upper apartment. T.514. He heard a loud commotion "for a few seconds" coming from the front hallway and then he saw "a guy running out of [the] house and... [Petitioner] chasing after him...." T.514. Petitioner chased the man down the street about 50 to 100 feet and then "casually walked upstairs." T.515. Shemski did not hear Petitioner say, "I stabbed that mother fucker, " but he did hear Mrs. Ali screaming.

Johnny Kidd ("Kidd"), Petitioner's downstairs neighbor, heard a loud commotion on Petitioner's stairs. Kid saw a group of ten to fifteen young black males standing outside in front of Petitioner's house. T.524-26. He could not see anything in their hands. T.525. Kidd did not see the stabbing. Kidd stated that after he heard the noise in the hallway, about "five or six seconds later" he "looked out because [Petitioner] was chasing somebody and they were gone." T.527.

Mrs. Ali testified that she and Petitioner were in their kitchen preparing fish and cabbage for dinner when they heard a loud commotion downstairs. Looking outside, they saw a group of young men. Petitioner asked them to go away but they refused. T.530. When she went to the top of the stairs, she saw a young man standing at the bottom of the stairs with a brick in his hand. Petitioner started to go downstairs and yelled for Mrs. Ali to call 911. He returned about 30 to 45 seconds later and was "really emotional." T.532. He asked her to call 911 again because he had stabbed one of the men. T.532.

3. The Justification Charge and Jury Deliberations

At trial counsel's request, the trial court charged the jury pursuant to P.L. § 35.20(3), which permits a person in possession or control of a dwelling "who reasonably believes that another person is committing or attempting to commit a burglary of such dwelling... [to] use deadly physical force upon such other person when he or she reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of such burglary." N.Y. PENAL LAW § 35.20(3).

During deliberations, the jury sent out a note which asked for "more clarification on part of a structure (dwelling), a threat in regards to inside your home or outside your home." T.645. At the prosecutor's request, and with no objection from defense counsel, the trial court instructed ...

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