McKelvey v. Bradt

PHILLIP MCKELVEY, Petitioner, v. SUPT. MARK BRADT, Respondent.

13cv3527 (CM) (DF)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

FILED: July 6, 2016

May 23, 2016

REPORT AND RECOMMENDATION

TO THE HONORABLE COLLEEN MCMAHON, U.S.D.J.:

Pro se petitioner Phillip McKelvey ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, following his state conviction, upon a jury verdict, of two counts of Rape in the First Degree, in violation of New York State Penal Law § 130.35(1); one count of Attempted Rape in the First Degree, in violation of New York State Penal Law §§ 110.05(1), 130.35(1); four counts of Criminal Sexual Act in the First Degree, in violation of New York State Penal Law § 130.50(1); and three counts of Sexual Abuse in the First Degree, in violation of New York State Penal Law § 130.65(1). For these crimes, Petitioner was sentenced to an indeterminate term of 75 years to life imprisonment. Petitioner is presently incarcerated at Attica Correctional Facility in Attica, New York.

In his petition for a writ of habeas corpus (Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus by a Person in State Custody, dated May 14, 2013 ("Pet." or "Petition") (Dkt. 1)), Petitioner alleges that his custody is unlawful due to prosecutorial misconduct and other improprieties in his grand jury proceeding, and that his constitutional rights were violated when he was arrested without probable cause, denied his right to confront an adverse witness, denied due process of law, and denied the effective assistance of counsel. Respondent Mark Bradt ("Respondent"), Superintendent of Attica Correctional Facility, argues that Petitioner's various claims should be dismissed as procedurally barred, non-cognizable, and/or without merit. For the reasons set forth below, I recommend that the Petition be dismissed in its entirety.

BACKGROUND

A. Factual Background

Based on the evidence presented by the prosecution at Petitioner's trial, as summarized below, Petitioner sexually assaulted three different women, who, for privacy purposes, are referred to herein by their initials.¹

1. Attack On W.B.

At about 10:30 p.m. on July 19, 2005, after having spent the day smoking crack, W.B. left her friend's apartment on West 144th Street between Seventh and Eighth Avenues. (See Transcript of Trial, conducted Oct. 29, 2007, to Nov. 1, 2007 ("Trial Tr."), at 67-68, 102-03.) As W.B. walked north on Seventh Avenue, Petitioner approached her and asked if she "want[ed] to make some extra money." (Id., at 70-71, 104.) W.B. said "no" and continued to walk past Petitioner. (See id., at 70-71, 104-05.) Petitioner then responded, "You're going to anyway," and grabbed W.B. around the neck, saying "don't even think about it or I will kick your ass." (See id., 70-72, 104-05.) Petitioner was six feet, two inches tall and weighed 210 pounds. (See id., at 214.) W.B. was five feet, three inches tall and weighed 103 pounds. (See id., at 72-73.)

Petitioner then led W.B. across Seventh Avenue, passing two police officers along the way. (See id., at 71-73, 105.) The police officers did not notice W.B., despite her efforts to make eye contact with them. (See id., at 71, 106.) After passing the officers, Petitioner put W.B. in a headlock and warned her against trying to escape, threatening to "slap the shit out of [her]"if she did not comply with his demands. (Id., at 73, 107.) Petitioner then dragged W.B. to a church courtyard, verbally threatened W.B. again, and then slapped her. (See id., at 73-74.)

Petitioner directed W.B. down a staircase to a sunken area within the courtyard, where another man was waiting, and told her to kneel down and remove her pants and shoes. (See id., at 74-75, 108, 130.) Fearing for her safety, W.B. complied. (See id.) Petitioner then anally, vaginally, and orally raped her, taking turns with his unidentified accomplice. (See id., at 76-80, 111-12.) W.B. tried to escape up the staircase, but one of the men pulled her back down by her legs, and Petitioner threatened to "fuck [her] up if [she] tried it again." (Id., at 81, 130-32.) Petitioner and the other man resumed their attack and, after about 20 or 25 minutes, Petitioner ejaculated in W.B.'s mouth. (See id., at 81-82, 113-14.) The two men then fled the courtyard, ordering W.B. to stay there for "a few minutes." (Id., at 81-82.)

Still holding Petitioner's semen in her mouth, W.B. walked directly to the 32nd Police Precinct. (See id., at 82-83, 85-86, 114.) She told an officer that she had been raped and that she still had one of her attacker's semen in her mouth and underwear. (See id., at 85-86, 114-16.) W.B. spat some of the semen into a plastic bag, and was told by the police to continue to hold the remaining semen in her mouth while Police Officers Rashied Richardson and Richard Flaherty took her to Harlem Hospital. (See id., at 86, 114, 253-55, 262-64, 344-45.) W.B. was eventually examined by Dr. Joseph Bobrow, the obstetrician and gynecologist on duty at the time. (See id., at 329-32.) Bobrow performed an internal and external forensic examination, including with the use of a "rape kit." (Id., at 86, 121, 330-35.) Bobrow observed that W.B. had "minor abrasions on her knees" that were consistent with protracted kneeling on a rough surface, but detected no injuries to her vagina or anus that were consistent with forcible intercourse. (See id., at 333-35, 340.) Bobrow testified at trial, though, that it was "not uncommon for rape victims to not haveany trauma to the genital area." (Id., at 339.) When asked at trial if she recognized the man who raped her, W.B. responded, "I'm not 100 percent sure, but [Petitioner] looks like [the attacker]." (Id., at 83.)

2. Attack on M.L.

Sometime between 11:00 p.m. and midnight on July 26, 2005, M.L. was sitting on a bus-stop bench in front of Harlem Hospital, when she and Petitioner began to converse. (See id., at 174-75, 194-95, 197.) Eventually, they walked to a store where Petitioner bought M.L. a soda. (See id., at 175, 196.) Petitioner then offered to buy M.L. something to eat at a nearby restaurant. (See id., at 176, 197.) M.L. agreed, and they walked to the restaurant, only to discover it was closed. (See id., at 177, 197.) Claiming that he had to stop at home, Petitioner then led M.L. to the same sunken area within the church courtyard where, one week earlier, he had raped W.B. (See id., at 177, 367.) As they reached the bottom of the staircase, Petitioner grabbed M.L.'s hair, pressed a sharp object against her neck, and ordered her to remove her clothes. (See id., at 177-78, 201-03.) M.L. told Petitioner that she would do whatever he wanted, and pleaded with him not to hurt her. (See id., at 178.)

Petitioner ordered M.L. to perform oral sex on him; in response, M.L. "whimper[ed]," and Petitioner struck her on the head. (See id., at 178-79.) After orally raping her, Petitioner threw a condom at M.L. and ordered her to put it on him. (See id., at 179, 198.) M.L. complied and Petitioner proceeded to rape her vaginally. (See id., at 179-80.) When he finished raping M.L., Petitioner took off the condom and threw it on the ground. (See id., at 184, 198.) He then pushed M.L. to the ground, emptied the contents of her pocketbook onto the ground, and told her to count to 50 or 100 before leaving the courtyard. (See id., at 180.) Eventually, M.L. left and headed to Harlem Hospital. (See id., at 180-81, 198.)

M.L. arrived at the hospital and reported that she had been raped. (See id., at 181.) Shortly thereafter, Police Officers Richard Flaherty and Carlos Matos met M.L. at Harlem Hospital. (See id., at 181, 258, 267-68.) M.L. was eventually interviewed by Dr. Jenny Castillo, who was on duty in the emergency room. (See id., at 150-51.) M.L. told Castillo that she had been raped and complained of pain in her head and knees. (See id., at 152.) Castillo performed an internal examination, including with the use of a rape kit, and found no signs of forcible intercourse. (See id., at 155-59, 181, 199.) At trial, Castillo explained that many rape victims show no signs of physical trauma, particularly if a lubricated condom is used. (See id., at 145-50, 156-58, 162.)

Not long after M.L. had been examined, Detective David Rivera recovered a used condom and an open condom wrapper from the church courtyard. (See id., at 41-43.) On July 28, 2005, Irene Wong, a criminalist with the New York City Office of the Chief Medical Examiner, tested the condom and found DNA from sperm cells that matched the DNA in the semen that had been recovered from W.B.'s mouth. (See id., at 422-23.) In the following days, M.L. worked with Detective Julia Collins to identify the man who raped her, but M.L. did not recognize her assailant in any of the photographs of suspects that she viewed. (See id., at 182-83, 368.) At trial, though, M.L. identified Petitioner as the one who had raped her on July 26, 2005. (See id., at 183.)

3. Attack on S.P.

At around midnight on or about May 26, 2006, S.P. left her friend's apartment on Seventh Avenue between 141st and 142nd Streets, where she and the friend had been smoking crack together. (See id., at 287-89, 397-400.) Upon leaving the apartment, S.P. went to buy a soda at a nearby store. (See id., at 289, 317.) On her way back to the apartment, S.P. was struckin the mouth by Petitioner, who was dressed in a black army fatigue jacket and a black hat. (See id., at 289-91, 293, 317.) Petitioner put an orange box cutter to S.P.'s neck and said "shut the fuck up, bitch . . . just walk." (Id., at 290-91, 323-25.)

Petitioner forced S.P. to the back of a schoolyard, made her kneel in dog feces, put on a condom, and forced her to perform oral sex on him. (See id., at 291, 297, 315, 323.) Petitioner then told S.P. to turn around and pull her pants down. (Id., at 291.) Before S.P. did so, however, Petitioner heard "some guys" enter the area, told S.P. to "sit there [and] count to 50," and then fled. (Id., at 292-94.) S.P....