Borden v. Conway

TONY BORDEN, Petitioner, v. JAMES CONWAY, SUPERINTENDENT ATTICA CORRECTIONAL FACILITY Respondent.

No. 09-CV-6211T

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

Dated: May 18, 2011

DECISION AND ORDER

I. Introduction

Pro se petitioner Tony Borden("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered August 24, 2005, in New York State, Supreme Court, Erie County, convicting him, after a jury trial, of Rape in the First Degree (N.Y. Penal Law ("Penal Law") former § 130.35[3]) and Endangering the Welfare of a Child (Penal Law § 260.10[1]).

For the reasons stated below, habeas relief is denied and the petition is dismissed.

II. Factual Background and Procedural History

The charges arise from an incident that occurred on June 25, 2004, in the City of Buffalo, New York, wherein Petitioner placed seven-year-old L.C. ("the victim") on his bed, took her clothes off, held her down by her arms, and engaged in sexual intercourse with her. Trial Trans. [T.T.] 228-230.

At the time of the incident, Petitioner and the victim's mother were engaged to be married and were living at Petitioner's home at 17 Schreck Street. T.T. 346-347. On June 25, 2004, the victim's mother returned from work and found her daughter coloring in the back bedroom of Petitioner's home. T.T. 350. The victim indicated to her mother that she wanted to take a nap, and proceeded to do so. T.T. 351. After approximately forty-five minutes, the victim's mother woke her daughter up and fed her. The victim's mother then went into the bathroom, which was connected to the back bedroom, and smoked crack. T.T. 353. When she was coming out of the bathroom, she heard Petitioner whisper "hurry." T.T. 354. She saw Petitioner trying to cover his groin area and noticed something was wrong with her daughter. She took the victim into the bathroom and saw semen on her thigh. The victim told her mother what Petitioner had done. Petitioner tried to prevent the victim and her mother from leaving his home. The victim then went to the hospital with her mother. T.T. 354-365.

At the hospital, the victim was examined by Muhammed Qureshi, M.D. who found evidence of recent trauma to the victim's hymen, which had been torn. T.T. 455-456, 553-554. Pictures of the victim's vagina were taken at the time of the examination. T.T. 451. At trial, the prosecution's expert, James William Canavan, M.D., testified that the tear in the victim's hymen was most likely caused by penile penetration. T.T. 558-559. He furthertestified that the penis had to penetrate the victim's vagina in order to have contacted the hymen. T.T. 556. Joseph Calabrese, M.D., a expert witness for the defense, testified at trial that he saw no evidence of any sexual trauma to the victim. He further testified that the tear to her hymen could have been caused by any blunt trauma. T.T. 698-700.

When detectives questioned Petitioner regarding the victim's allegations, he began crying and admitted that he had sexual intercourse with the victim. Petitioner stated that he had been drinking all day, that he felt badly after the intercourse occurred, and that he needed help. T.T. 313-323.

Under Indictment No. 01381-2004, Petitioner was charged with Rape in the First Degree, Criminal Sexual Act in the First Degree, and Endangering the Welfare of a Child. After a jury trial, ¹Petitioner was found guilty of Rape in the First Degree and Endangering the Welfare of a Child, and found not guilty of Criminal Sexual Act in the First Degree. T.T. 868. Subsequently, he was sentenced to a determinate term of imprisonment of twenty years with a five year period of post-release supervision. Sentencing Mins. [S.M.] 6.

On April 20, 2007, the Appellate Division, Fourth Department ("Fourth Department") unanimously affirmed the judgment ofconviction, and leave to appeal was denied. People v. Borden, 39 A.D.3d 1242 (4th Dep't 2007); lv. denied, 9 N.Y.3d 873 (2007), reconsideration denied, 9 N.Y.3d 959 (2007).

No collateral motions were filed.

This habeas corpus petition followed, wherein Petitioner seeks relief on the following grounds: (1) inadequate jury instructions concerning his statements to police; (2) the evidence was legally insufficient to support his conviction; and (3) the trial court improperly denied his motion for a mistrial based on prosecutorial misconduct. See Pet. ¶ 12 (Dkt. # 1); Traverse [Tv.] (Dkt. # 10).

III. General Principles Applicable to Habeas Review

A. The AEDPA Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state courtdecides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).

A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id. This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).

Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

B. Exhaustion Requirement

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that... the applicant has exhausted the remedies available in the courts of the State...." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054 (1995). "The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984).

C. The Adequate and Independent State Ground Doctrine

A procedural default generally bars a federal court from reviewing the merits of a habeas claim. Wainwright v. Sykes, 433 U.S. 72 (1977). Federal habeas review is prohibited if a state court rests its judgment on a state law ground that is "independent of the federal question and adequate to support the judgment." Cotto v. Herbert, 331 F.3d 217, 238 (2d Cir. 2003) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)); accord Jones v. Stinson, 229 F.3d 112, 117 (2d Cir. 2000). A state procedural bar qualifies as an "independent and adequate" state law ground where "'the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.'" Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995) (quoting Harris v. Reed, 489 U.S. 255, 262 (1989)). A state procedural rule will be adequate to preclude habeas review if it is "firmly established and regularly followed," unless the state rule is "exorbitant." Lee v. Kemna, 534 U.S. 362, 376 (2002) (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)).

A federal court may review a claim, notwithstanding the petitioner's default, if he "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law." Coleman, 501 U.S. at 750; see also Levine, 44 F.3d at 126; Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991). A petitioner may establish cause by pointing to "some objectivefactor external to the defense [that] impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986); accord Coleman, 501 U.S. at 753. A petitioner suffers actual prejudice if the outcome of the case would likely have been different had the alleged constitutional...