Roman v. McKoy

ORLANDO O. ROMAN, 04-B-0396, Plaintiff, v. J. McKOY, Deputy Commissioner of Programs for DOCCS, J. HUGHES,Deputy Superintendent of Programs at Southport Correctional Facility,also known as J. MACKEY, K. WASHBURN, Mailroom Supervisor Southport Correctional Facility,and JANE/JOHN DOE, Administration, Southport Correctional Facility, Defendants.

15-CV-6396 CJS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

June 22, 2020

DECISION and ORDER

INTRODUCTION

Orlando Roman ("Plaintiff"), formerly an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brings this action pursuant to 42 U.S.C. 1983, proceeding pro se, alleging that the defendants, all of whom were employed by DOCCS, violated his federal constitutional rights by interfering with his mail while he was confined at Southport Correctional Facility ("Southport"). Now before the Court are Defendants' Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure ("FRCP") 12(b)(6) (ECF No. 14) and Plaintiff's Motion to Appoint Counsel and to Amend/Correct the Complaint (ECF No. 18). The motion to appoint counsel is denied, the remaining motions are granted, and this action is dismissed.

BACKGROUND

Unless otherwise noted, the following facts are taken from the Complaint, documents attached to the Complaint as exhibits, documents incorporated by reference in the Complaint, and documents in underlying state- and federal-court actions filed by Plaintiff of which the Court has taken judicial notice.

At all relevant times Plaintiff was at Southport serving his sentence after having been convicted, on January 16, 2004, of several crimes against a minor child, "including rape in the first degree." People ex rel. Roman v. Griffin, 89 A.D.3d 1247, 1247, 932 N.Y.S.2d 390 (Third Dept., Nov. 10, 2011). In particular, after a bench trial Plaintiff "was convicted under Penal Law § 130.35(4)," see, People v. Roman, 85 A.D.3d 1630, 1632, 925 N.Y.S.2d 310, 312 (2011), which prohibits sexual intercourse with another person "[w]ho is less than thirteen years old and the actor is eighteen years old or more." Plaintiff was also convicted separately, upon his plea of guilty, of bribing a witness (the victim's mother-- his estranged wife). People ex rel. Roman v. Griffin, 89 A.D.3d at 1248.

At the bench trial, the victim (Plaintiff's former stepdaughter) and her mother (Plaintiff's former wife) both testified for the prosecution and were cross-examined extensively by Plaintiff's defense attorney. Much of the cross-examination focused on alleged inconsistencies between the witnesses' trial testimony and their prior statements concerning the nature, circumstances, and dates of the sexual abuse.

For example, the child victim was cross-examined about alleged inconsistencies between her trial testimony and statements that she had previously made.¹ In this regard, the child testified about statements she had made to police, including those in her 5-page supporting deposition to the felony complaint, those made to Child Protective Services, and those made to her therapist. See, e.g., Roman v. Fierro, 6:12-CV-6123, ECF No. 1-2 at p. 136, Trial Tr. at p. 80 ("Q. Who was [it] that you told? A. Child Protective and the police."; see also, id. at p. 142, Trial Tr. at p. 107: "My therapist was told everything after I spoke with Child Protective and the police.").

Regarding the dates of the abuse, the child indicated that the abuse had occurred while she and her mother were still residing in the marital home with Plaintiff, and she and her mother testified that they had moved out of the marital home in early 2000.² Defense counsel impeached the victim and her mother about those dates. For example, defense counsel confronted the child's mother with her sworn signature on a separation agreement in which she had agreed that she had vacated the marital residence in April 2001.³ Defense counsel also impeached the child with her prior sworn inconsistent testimony in a Family Court proceeding.⁴

Nevertheless, the trial judge found Plaintiff guilty, despite what Plaintiff maintains were "numerous" inconsistencies in the witnesses' testimony:

Despite the Court's apprehension with the element of time, the numerous inconsistencies in the complainant's testimony as well as the numerous inconsistencies in the complainant's mother's testimony, and despite the complainant having acknowledged testifying in Family Court that the reason her mother and I had separated was because - "they were having problems I guess," on December 10, 2003, the Hon. Kenneth R. Fisher rendered a verdict of guilty.

Am. Compl. (ECF No. 4) at ¶ 165.

Plaintiff subsequently spent many years trying to overturn his convictions.⁵ In that regard, Plaintiff pursued direct appeals; motions for petitions of writ of error coram nobis;motions under New York Criminal Procedure Law ("CPL") 440; and state-court habeas corpus petitions.⁶ See, e.g., People v. Roman, 43 A.D.3d 1282, 1282, 842 N.Y.S.2d 640, 641 (4^th Dept. 2007) (denying direct appeal); People v. Roman, 50 A.D.3d 1629, 855 N.Y.S.2d 410 (4^th Dept. 2008) (denying motion for writ of error coram nobis); People ex rel. Roman v. Griffin, 89 A.D.3d at 1248 (Affirming an order of the Chemung County Court, dated September 23, 2010, dismissing Plaintiff's petition under New York CPLR Article 70 collaterally attacking his convictions, filed after an unsuccessful direct appeal and an unsuccessful 440.10(1) motion). Plaintiff also filed two actions in this Court, attempting to collaterally attack his convictions. See, Roman v. Napoli, 6:08-cv-06561-MAT-VEB, ECF No. 41 (dismissing federal habeas petition) and Roman v. Fierro, 6:12-CV-6123.

Throughout such litigation, Plaintiff asserted, primarily, that the child and her mother had lied about the acts of sexual abuse for which he was convicted.⁷ Plaintiff argued that the victim and her mother had incorrectly testified at trial that they had moved out of the marital home early in the year 2000, when they actually did not leave until November 2000. (Plaintiff maintains that they left temporarily in November 2000, and then left permanently in April 2001.)⁸ Additionally, Plaintiff argued that the child had embellished at trial by testifying to instances of sexual abuse that she had not mentioned in her prior statements. As proof of these assertions, Plaintiff relied, inter alia, on the statements, mentioned earlier, given by the child to investigators,⁹ on statements by hiswife in a divorce proceeding commenced shortly after the criminal trial, and on two police reports from the Town of Gates¹⁰ concerning domestic disturbances that had occurred prior to Plaintiff being charged with the crimes for which he now stands convicted.¹¹ According to Plaintiff, the documentary evidence showed that the victim and her mother were still living in the marital home during 2000, and that the child had failed to tell investigators about alleged acts of abuse to which she later testified at trial.¹² An underlying theme throughout Plaintiff's post-conviction litigation was the assertion that his wife had orchestrated the allegations against him in order to cover up the fact that she had been having an extramarital affair.¹³

However, the courts rejected Plaintiff's repeated attempts to upset his convictions based on such alleged newly discovered evidence. For example, the trial court rejected Plaintiff's motion under CPL 440.10 based on the alleged inconsistent statements by the child's mother in a sworn divorce complaint, stating that the evidence was "mere impeachment material" which would not have affected the outcome of the trial.¹⁴ Additionally, in affirming the dismissal of Plaintiff's state-court habeas petition, the New York State Supreme Court, Appellate Division Third Department, stated:

Petitioner contends that, based upon evidence newly discovered after his conviction by trial, concerns were raised about the veracity of certain key witnesses that would have precluded a grand jury from indicting him or his having been found guilty after trial. However, where claims could have beenasserted on direct appeal or in a CPL article 440 motion, habeas corpus relief is not an appropriate. Here, Supreme Court properly dismissed the petition inasmuch as petitioner acknowledges that the alleged newly discovered evidence was the basis for an unsuccessful motion made pursuant to CPL 440.10 (1) (g). As such, we find no reason to depart from traditional orderly procedure.

People ex rel. Roman v. Griffin, 89 A.D.3d 1247, 1248, 932 N.Y.S.2d 390 (2011) (citations omitted). Indeed, when later attempting to collaterally attack his convictions in a federal habeas proceeding in this Court on the same grounds ("new evidence"), Plaintiff argued that the state courts had improperly rejected his arguments concerning the same alleged newly-discovered evidence discussed above. See, e.g., Roman v. Napoli, 08-CV-6561, Am. 2254 Habeas Pet., ECF No. 4 at p. 18, ¶ l & pp. 27-30; see also, id., Petitioner's Objs., ECF No. 28 at pp. 2-4 (Arguing that the newly-discovered evidence showed that the child victim and her mother had testified falsely).

On or about July 2, 2014, more than ten years after he was convicted, Plaintiff, who was then confined at Southport, wrote to the Monroe County Clerk, requesting copies of documents relating to his rape conviction, namely, "1) the felony complaint filed against Plaintiff in the local criminal court for the Town of Gates, on or about December 2002; 2) the supporting deposition filed with the felony complaint; 3) the divestiture (from local criminal court for the Town of Gates to the Supreme Court of the County of Monroe); and 4) transcripts of the arraignment held in the local criminal court for the Town of Gates." Compl., ECF No. 1 at ¶ 12.

Plaintiff contends that he wanted these materials because he intended to file yet another collateral attack on his convictions, alleging that he was...