The opinion of the court was delivered by: CURTIN
Petitioner Robert Reed filed this petition for habeas corpus pursuant to 28 U.S.C. § 2254 in the Western District of New York in July 1995 (Item 1). Petitioner, by his assigned counsel, filed a memorandum in support of the petition on January 28, 1997 (Item 18).
Respondent, Great Meadow Correctional Facility, is represented by the Niagara County District Attorney (Item 4). Respondent has answered both the petition and the supporting memoranda (Items 8, 12, 19). Accordingly, the court now proceeds to a decision on the merits of the petition (See Items 17, 22).
A Niagara County Court tried petitioner on four counts of first-degree rape in March 1993 (Item 18, pp. 1-2). The four counts of rape were contained in two separate indictments (Id., p. 1). The first indictment alleged that petitioner raped both Wanica Wilson on February 4, 1992 (count one) and Sonya Sealey on June 7, 1992 (count two) (Id.). The second indictment alleged that petitioner raped Teresa Knowles twice on December 6, 1992 (counts three and four) (Id.). The Niagara County Court permitted the respondent to join the indictments and try all four counts together (Id., pp. 1-2).
A jury convicted petitioner on two of the four counts on March 25, 1993 (Id., p. 2). On April 29, 1993, Niagara County Judge Hannigan sentenced petitioner to two consecutive sentences of 8 1/3 to 25 years (Id.). Petitioner filed a motion to vacate the judgment, which was denied on October 29, 1993 (Id., p. 3). Petitioner also appealed his conviction to the Supreme Court Appellate Division's Fourth Department. On February 3, 1995, the Fourth Department affirmed petitioner's conviction, but modified his sentences to run concurrently rather than consecutively. People v. Reed, 212 A.D.2d 962, 624 N.Y.S.2d 693 (4th Dep't 1995) The New York State Court of Appeals denied petitioner's motion for leave to appeal on June 28, 1995. People v. Reed, 86 N.Y.2d 739, 631 N.Y.S.2d 620, 655 N.E.2d 717 (1995).
There are unresolved disparities among the grounds raised in petitioner's pro se petition, the initial supporting memorandum, and his assigned counsel's supporting memorandum (See Item 1, P 12; Item 10; Item 18). Petitioner, in his pro se petition, requests relief on the grounds of both double jeopardy and a denial of his right to appeal (Item 1, P 12(A)(C)). However, it appears that these two claims are the result of a misunderstanding on petitioner's part. While petitioner formally claims the grounds of double jeopardy and denial of appeal, he follows these claims with arguments concerning the sufficiency and credibility of evidence (Id., P 12). In according petitioner the leniency owed to a pro se litigant, Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam); Dorsey v. Kelly, 112 F.3d 50 (2d Cir. 1997), the court will proceed by treating both the petition and the first supporting memorandum as presenting four grounds for relief: (1) insufficiency of evidence; (2) incredibility of witnesses; (3) prosecutorial misconduct (Id., P 12; Item 10); and (4) consolidation of the indictments.
A. Sufficiency of evidence
Petitioner argues that the jury based both of his convictions on insufficient physical evidence (Item 1, P 12 (Ms. Knowles); Item 10, p. 1 (Ms. Wilson)). Petitioner's argument on this point proceeds from the erroneous position that New York State law requires physical corroboration in order to convict a defendant of first degree rape. "There is no statutory requirement for corroboration of the crimes of rape . . . when predicated . . . [on] allegations of forcible compulsion." People v. King, 162 A.D.2d 473, 556 N.Y.S.2d 166, 167 (2d Dep't), appeal denied, 76 N.Y.2d 859, 560 N.Y.S.2d 999 (1990). The jury was able to convict petitioner on the strength of the victims' testimony (See Trial Transcript at 156-61, 353-56). For this reason, the court rejects petitioner's argument regarding the insufficiency of physical evidence.
Petitioner also argues that both Ms. Wilson's and Ms. Knowles' testimony are insufficient evidentiary support for the convictions (Item 1, P 12(C)(D); Item 10, pp. 2-7). In making this argument, petitioner actually attempts to re-try the case and substitute his understanding of the evidence for the jury's fact-finding (See Item 10, pp. 2-7). Petitioner cannot secure relief simply by vehemently disagreeing with the jury's findings of fact.
As stated before, the jury was able to base both convictions on the testimony of the victims. Ms. Wilson stated at trial that petitioner pushed her down onto a bed, stripped her clothes off, and forcibly had sex with her in spite of her verbal and physical protestations (Trial Transcript at 156-61). Ms. Knowles (with regard to the second alleged rape) testified that petitioner "smothered" her with a jacket, threatened her with violence, stripped her clothes off, and forcibly had sex with her (Id. at 351-55). In addition, the prosecution presented testimony from a rape crisis worker who, responding to a reported rape, had participated in a physical examination of Ms. Knowles on December 5, 1992 (Id. at 297-305).
In order to determine whether there is constitutionally sufficient evidence to support a guilty verdict, this court must view the evidence in a light most favorable to the prosecution and then decide whether the record is "so totally devoid of evidentiary support that a due process issue is raised." Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 131 L. Ed. 2d 316, 115 S. Ct. 1436 (1995) (quoting Mapp v. Warden. N.Y. State Correctional Inst. for Women, 531 F.2d 1167, 1173 n.8 (2d Cir. 1976), cert. denied, 429 U.S. 982, 50 L. Ed. 2d 592, 97 S. Ct. 498 (1976)). In short, the immediate trial record is certainly not "totally devoid of evidentiary support." Bossett, 41 F.3d at 830. It was within the jury's province to base its decision on "circumstantial evidence and inferences based upon the evidence." Id. (quoting United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993)). The jury in the immediate ...