Horton v. Bell

1

BENJAMIN HORTON, Petitioner, v. EARL BELL, Respondent.

No. 9:20-CV-1461 (GTS)

United States District Court, N.D. New York

March 29, 2024

BENJAMIN HORTON Petitioner, pro se Clinton Correctional Facility

HON LETITIA JAMES PRISCILLA I. STEWARD, ESQ. Attorney for Respondent Assistant Attorney General Office of the Attorney General

DECISION AND ORDER

GLENN T. SUDDABY CHIEF UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

Petitioner Benjamin Horton seeks federal habeas relief pursuant to 28 U.S.C. § 2254. Dkt. No. 1, Petition ("Pet.").^[1] Respondent opposes the petition. Dkt. No. 42, Answer; Dkt. No. 43, State Court Records; Dkt. No. 46 & 47, Sealed Documents (including respondent's memorandum of law, filed at Dkt. No. 46-4). Petitioner filed a reply. Dkt. No. 54, Traverse. For the reasons which follow, the petition is denied and dismissed in its entirety.

II. STATE COURT CRIMINAL PROCEEDINGS

The Court will briefly discuss the underlying state court conviction and procedural history of the direct appeal and collateral challenges thereto; however, for clarity, the facts related to specific claims will be further discussed in the relevant sections.

The victim in this case was a boy, born in 2003. T. 426-27, 491. He is autistic and bipolar, as well as being diagnosed with having significant learning disabilities, obsessive compulsive disorder, and persuasive development disorder. T. 428, 456.^[2]

Petitioner is an adult male, born in 1971, and the victim's mother's cousin. T. 313, 329429; SCR 135, 137, 146. The victim's mother testified that she and petitioner did not share any kind of relationship throughout their adult lives until petitioner helped her, her son (the victim), and her daughter relocate to a home in Galway, New York, in Saratoga County, in 2014. T. 430-31.

Beginning around Christmas of 2014, petitioner became a permanent fixture in the victim's mother's home, arriving daily just before the victim would arrive home from school, spending the night, and then leaving the next day after the victim would go to school. T. 329, 431, 443-44. Petitioner would also take the victim, then 11 years old, to spend every weekend with him in his home - on Stanley Street in Schenectady, New York - while the victim allegedly assisted petitioner with property renovations. T. 431-32, 501.

At trial, the victim's mother and the victim's cousin talked about how petitioner would isolate the victim and provide him with not only his undivided attention, but also various gifts. Petitioner purchased the victim a phone, a four-wheeler, a PlayStation 4, and school clothes. T. 330, 432, 438, 440. Petitioner would also play sports with the victim and take him out to eat. T. 330, 432, 438, 440. Petitioner did all of this while excluding the victim's sister and the victim's cousin, both young females, who also lived in the same home as the victim and his mother. T. 432-33. When asked why the girls were never invited to join them, petitioner responded that "it was boys time." T. 331,433..

The victim also testified about his relationship with the petitioner during the winter from 2014 through 2015, describing how they would play football, ride four wheelers, and go out to eat. T. 494. The victim also shared that, when he would spend the night at the petitioner's house on the weekends, the petitioner would make the victim sleep in the petitioner's bed and "[s]uck [the petitioner's] penis." T. 494-95. Further, the victim described how he would lie on his stomach, with the petitioner positioned on the victim's back, and the petitioner would insert his penis into the victim's anus. T. 495-96. When the victim indicated this was uncomfortable, the petitioner put lotion on his penis. T. 496. The victim also reported that he and the petitioner would touch each other's penises with their hands. T. 496-97. The victim stated that he never asked the petitioner to perform any sexual acts with, or to, him. T. 498.

The victim explained that he did not remember anyone else living in the same house as the petitioner and that, during the weekends when the two of them were there together, they were alone. T. 502-03. The petitioner told the victim that if the victim told anyone what they were doing, the petitioner would kill himself, and so the victim kept the abuse a secret.

T. 497.

On May 8, 2015, the victim's mother told the petitioner he was no longer permitted to be in her home because the victim informed her that he and the petitioner "were doing sexual things." T. 445. This made the victim very sad and angry, so much so that he destroyed his room and cried for the petitioner throughout the night. T. 332, 446.

The following day, the victim and his cousin went on a walk. T. 332. The victim disclosed to his cousin that the petitioner "made [the victim] touch him and stuff and he touched [petitioner]." T. 333. When they returned home, the victim's cousin encouraged him to tell his mother the entire story, and the victim did. T. 333, 446-47. Immediately thereafter, the victim's mother brought him to the Schenectady Police Department to report the abuse. T. 299-300, 447.

The victim also underwent a physical examination with a nurse practitioner. T. 512. The nurse practitioner testified that the examination was non-acute because more than 96 hours had passed since the last sexual contact. T. 510, 512-13. While some "bluish discoloration" was noted around the victim's anus, the findings were "abnormal" but also "fairly nonspecific." T. 517-18. The nurse practitioner shared that it was not unusual that she did not find any injuries on the victim because the genital and anal areas heal quickly and are comprised of tissue that is meant to stretch; therefore, tearing would not be expected unless there was significant trauma. T. 518-19. Anal penetration, she concluded, would not necessarily cause such trauma. T. 519.

The victim's mother also testified about cooperating with law enforcement to arrange a controlled call and meeting with the petitioner, both of which were recorded.

T. 300-02, 448, 471. The calls were played for the jury.^[3] Petitioner admitted that he made poor decisions as a role model and that, in attempts to please the victim, the petitioner had engaged in sexual acts with the victim at the victim's request. Petitioner also admitted that he taught the victim how to masturbate by showing him and that he and the victim had touched each other's penises; however, he denied ever having anal sex or recent oral sex with the victim.

On May 21, 2015, the police arrested petitioner and seized his cell phone. T. 314-15. Law enforcement conducted a forensic download of the telephone's data and extracted messages from it. T. 339-40, 343-44. Petitioner used the phone that he bought for the victim to talk to him through an app. T. 440. The victim, whose number was 882-3323, was saved under the name "My Boy" in the petitioner's contacts. T. 350. Petitioner sent numerous messages to, and received several responses from, the victim multiple times per week between February and May of 2015. T. 350-67; SCR 659-691. On May 8, 2015, petitioner received a text from the victim stating "Am very sorry for everything I've done." T. 363; SR 659. Petitioner continued to sending messages to the victim declaring his love until May 15, 2015. T. 363-67.

Finally, a clinical and forensic psychologist testified generally about the patterns of behavior observed by perpetrators and victims of child abuse. T. 534-91. He explained how perpetrators groomed their victims and that, especially with familial-like relationships, it was common for victims to hide the occurrence and continuation of the abuse. T. 485-93, 56267. The doctor also explained that children are often good at remembering the principal details - who did what to whom - but were not so skilled at remembering anything else about the events. T. 555-56. The doctor made clear that he had never met, interviewed or examined the victim or any of the relevant reports in this case. T. 542-43, 578.

Petitioner did not call any witnesses or present any testimony during the trial.

The jury convicted petitioner of two counts of predatory sexual assault against a child, two counts of first degree criminal sexual act, and one count of first degree sexual abuse and endangering the welfare of a child. T. 727-729.

At the sentencing hearing, petitioner's counsel objected to portions of the pre-sentencing investigation report. S.3. Specifically, he argued that petitioner should not be sentenced as a predicate felon. S. 3. The trial judge agreed, ordering that any reference to such be stricken from the record and noting that petitioner's last felony conviction was in 1994, well beyond the applicable time limit. S. 3-4.

The court sentenced petitioner to concurrent prison terms of 25 years to life for the each count of predatory sexual assault; two determinate 20-year terms for the first degree criminal sex act, to run concurrently with the prior terms; a determinate 7-year period of incarceration with post-release supervision, to also run concurrently, for the first degree sexual abuse; and a determinate 1-year period of local incarceration to merge together with the previous counts. S. 20-21.

The parties later appeared before the court for resentencing, on August 24, 2016, after the prosecutor informed the court that the first degree criminal sex act counts, and the sentences associated therewith, should be dismissed as lesser included offenses. R.S. 2-3. The convictions and their sentences were vacated and the other terms remained as previously imposed. R.S. 3.

III. CHALLENGES TO THE CRIMINAL CONVICTION

A. Direct Appeal

Petitioner filed a counseled brief and appendix in the New York State Appellate Division, ...