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MOORE v. IRVIN

December 21, 1995

RICHARD MOORE, Petitioner, against FRANK IRVIN, Superintendent, Respondent.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge: *fn1"

 Moore makes the following claims in support of his habeas corpus petition: first, that the evidence adduced at trial was insufficient to support his conviction in violation of his rights under the Due Process Clause of the Fourteenth Amendment; second, that the consecutive sentences imposed upon him by the trial court violated the Double Jeopardy Clause of the Fifth Amendment; third, that the consecutive sentences imposed upon him constitute cruel and unusual punishment in violation of the Eighth Amendment; and fourth, that the imposition of consecutive sentences against him by the Trial Court constitutes an abuse of judicial discretion in violation of the Fourteenth Amendment.

 I.

 Evidence introduced at the petitioner's trial supported the following facts. On the night of January 28, 1989, at about 10:00 p.m., Christina Morelock, a nineteen year-old woman, left her aunt's house in Binghamton, New York. She was walking west on Clinton Street, toward her home, when two men in a car, petitioner Moore and Kevin Fuller, drove by. As they passed Morelock, the men shouted propositions at her, asking her if she wanted "to get high, get drunk, or get laid." (Trial Tr. at 91). Morelock refused the "invitation" and continued walking. The two men, however, doubled back and drove by Morelock approximately four more times, repeating their proposition to her. (Trial Tr. at 94). Morelock continued to decline their advances and continued walking. (Trial Tr. at 91). Morelock then crossed Clinton Street in an attempt to take a "short cut" home through an alleyway. (Trial Tr. at 91). As Morelock emerged from the alleyway, the men were waiting for her. The man who had been in the passenger seat, Fuller, was standing outside of the car talking to Moore who was sitting in the driver's seat.

 Morelock stopped to speak with the petitioner and Fuller. The petitioner and Fuller asked Morelock where she was going. Morelock told them that she was going home. The two men offered to take Morelock home and asked her where she lived. Morelock refused the invitation and stated that she did not need help getting home because she lived "right around the corner." (Trial Tr. at 95). The two men responded that they would take her home anyway. During the conversation, Morelock thought that she recognized Fuller, although subsequently she realized that she had been mistaken. Fuller then put his arm around Morelock and led her to the car; Morelock resisted slightly, but according to her own admission, she was not scared. (Trial Tr. at 96). Instead, Morelock accepted Fuller's nudging and entered the car voluntarily. (Trial Tr. at 97).

 After Morelock got into the car, Moore began to drive in the opposite direction from Morelock's home. Morelock questioned the two men as to why they were driving away from her home, but she did not recall receiving a response and did not express any alarm. (Trial Tr. at 98). Soon thereafter, the two men repeated their earlier proposition to Morelock, asking her "if [she] was sure...[she] didn't want to get high or...[she] didn't want to get laid." (Trial Tr. at 98). Morelock responded that she was sure that she did not. At trial, Morelock testified that she believed that the two men were drunk, that they were trying to "pick her up", and that they would soon tire of the activity and let her out of the car. (Trial Tr. at 99). Morelock did not perceive herself to be in any danger and she proceeded to joke with the two men regarding their advances. Id.

 As Morelock was performing oral sex on Moore, Moore encouraged Fuller to participate in the sexual assault on Morelock, which Fuller then did. Morelock attempted to push Fuller's hand away, but had only limited success. Moore, who continued to drive during the assault, drove into the town of Castle Creek, apparently looking for a certain back road. When the petitioner found the road, he discovered that it was blocked off. Thereafter, the petitioner attempted to back the car up, but got stuck in a ditch. As Moore attempted to get the car out of the ditch, a man came out of a nearby house due to the disturbance. Morelock began to scream for help when she saw the man, but the man just told them to get out of there and did not attempt to help her. (Trial Tr. at 110).

 Moore was eventually able to get the car unstuck and began to drive again. Moore stopped at one point to allow the two men, one at a time, to urinate. When the car was stopped, Moore told Morelock to climb into the backseat. Moore followed Morelock into the backseat and Fuller began to drive. Moore then proceeded to rape Morelock at knife-point. At some point during the rape, Fuller told Moore that the car needed gas. Moore then ceased having intercourse with Morelock. Fuller stopped the car so that Moore could resume driving. Moore told Morelock to "pull [her] pants back up" and get back into the front seat. (Trial Tr. at 114). Moore then drove to a gas station in Great Bend, Pennsylvania. Moore got out of the car to pump gas into the tank. Morelock made some attempt to alert the gas station attendant to her situation, but was silenced when Fuller threatened her with a small folding knife. While waiting for Moore, Fuller warned Morelock not to escape because Moore was "crazy." (Trial Tr. at 115).

 After Moore paid for the gas, he got back into the car. Moore struck Morelock in her back and ordered her to make a bowl out of a beer can to smoke marijuana, which Morelock did. Moore and Fuller then smoked the marijuana; Morelock declined although the two men offered it to her.

 Moore continued to drive around "some back roads" in Great Bend. (Trial Tr. at 116). He again stopped the car to allow each man to urinate. When the car was stopped, Moore again told Morelock to get into the backseat. Moore followed Morelock into the backseat and Fuller again drove the car. Moore then proceeded to rape Morelock a second time. (Trial Tr. at 117).

 As the second rape was occurring, Moore and Fuller talked about where they were. They stopped the car again so that Fuller could urinate. When the car was stopped, Moore ordered Morelock into the front seat. After Morelock returned to the front seat, she spoke to Fuller about escaping -- a conversation which Moore could not hear because of the noise of the car's muffler. Fuller claimed that he could "get [Morelock] home" and that the next time he told Moore to stop the car, that Morelock should get out of the car with Fuller. (Trial Tr. at 118). Soon thereafter, Fuller asked Moore to stop the car, which Moore did, but Fuller did not help ...


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