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 case made reasonable inferences based on pertinent evidence, and then convicted petitioner of two counts of first-degree rape. Petitioner's claim that his convictions were based on constitutionally insufficient evidence is without merit.
B. Credibility of the Witnesses
Petitioner argues that the victims' testimony was not credible and that, as a result, his convictions represent a violation of due process (Item 10, pp. 2-3, 5-7). The issue of whether Ms. Wilson or Ms. Knowles were credible witnesses was an issue properly left to the jury's fact-finding discretion. United States v. Gallo-Roman, 816 F.2d 76, 82 (2d Cir. 1987); Anderson v. City of Bessemer, 470 U.S. 564, 575, 84 L. Ed. 2d 518, 105 S. Ct. 1504 (1985)(stating that finder of fact is in unique position to determine witness credibility). Federal district courts are not in a position to "redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them." Marshall v. Lonberger, 459 U.S. 422, 434, 74 L. Ed. 2d 646, 103 S. Ct. 843 (1983); see also Clark v. Irvin, 844 F. Supp. 899, 904 (N.D.N.Y. 1994). Consequently, petitioner's claim regarding the credibility of the victims' testimony must fail.
C. Prosecutorial misconduct
Petitioner also makes a conclusory argument regarding the Niagara County District Attorney's use of perjured testimony (Item 10, p. 8). Petitioner has stated that a corrupt district attorney poses as much of a threat to the community as any criminal might and that the state, in this case, knowingly used false testimony to secure the convictions (Id.). In order to prevail on this ground, petitioner must demonstrate, among other things, that the perjured testimony was crucial to his conviction and that had it been exposed it would have impeached the witness so severely that the jury would have probably discredited that witness's testimony. See Napue v. People of the State of Illinois, 360 U.S. 264, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959).
While petitioner's argument on this ground is solid in theory, Napue is inapposite to the immediate case. In Napue, the prosecution's key witness lied during direct examination when he denied that the District Attorney had offered to reduce his sentence in exchange for his testimony. Id. at 270-71. The prosecutor conducting the examination knew at that time that the witness's answer was false. Id. The court in Napue went on to note, "had the jury been apprised of the true facts, however, it might well have concluded that [the witness] had fabricated testimony in order to curry the favor of the [prosecutor]." Id. at 270. The defendant's attorney in Napue was unable to establish the falsity of the witness's statement on cross examination and the jury was left to evaluate that witness's testimony without having reason to discredit the testimony entirely. See id. at 268 n.3.
In the immediate case, petitioner's attorney confronted both Ms. Wilson and Ms. Knowles regarding the veracity of their testimony by pointing out the inconsistencies between their testimony at trial and previously sworn statements (See Trial Transcript at 171-75, 194-200, 371-74, 399-400, 407-08). Petitioner claims that these inconsistencies warrant relief pursuant to Napue (Item 10, pp. 2-3, 5-7). However, these alleged inconsistencies concern immaterial factual details and do not indicate that the victims testified in the context of a self-interested exchange. As a result, the court finds petitioner's claim for relief on this ground to be unpersuasive.
D. Consolidation of Indictments
Petitioner argues that Judge Hannigan's decision to allow the joinder of the two indictments (92-116 and 92-373) "jeopardized [his] right to a fair trial and due process of law" (Item 18, p. 11). He further states that the joinder "caused the jury to afford the scant evidence . . . more weight than it deserved" and "the conflation of proof on the two separate indictments bolstered three weak cases." (Item 18, pp. 13, 15).
While petitioner's arguments might appear logical on their face, they are not supported by the case law. Rather, "joinder of offenses has long been recognized as a constitutionally acceptable accommodation of the defendant's right to a fair trial." Herring v. Meachum, 11 F.3d 374, 377 (2d Cir. 1993), cert. denied, 511 U.S. 1059, 128 L. Ed. 2d 353, 114 S. Ct. 1629 (1994) (quoting Tribbitt v. Wainwright, 540 F.2d 840, 841 (5th Cir. 1976), cert. denied, 430 U.S. 910, 51 L. Ed. 2d 587, 97 S. Ct. 1184 (1977)). Joinder "'is justified on the grounds that (1) the jury is expected to follow instructions in limiting this evidence to its proper function, and (2) the convenience of trying different crimes against the same person ... in the same trial is a valid governmental interest.'" Herring, 11 F.3d at 377 (quoting Spencer v. Texas, 385 U.S. 554, 562, 17 L. Ed. 2d 606, 87 S. Ct. 648 (1967)).
Herring establishes that "where a defendant is claiming a due process violation based upon joinder of offenses, he must, to succeed, go beyond the potential for prejudice and prove that actual prejudice resulted from the events as they unfolded during the joint trial." Id. at 377-78.
Herring is directly applicable to petitioner's case. Petitioner's case concerned three unrelated rapes (four counts) that were tried together; Herring concerned two unrelated murders (four counts) that were tried together. It is pertinent that both rape and murder are felonies. Similarly, the petitioner in the case at bar was found guilty on only two of the four counts, the same as petitioner in Herring.
In Herring, the Second Circuit held that petitioner did not make the required showing of actual prejudice because:
The jury at petitioner's trial was instructed on three separate occasions that evidence of one murder was not to be used to determine petitioner's guilt with respect to the other. . . .
Moreover, because the evidence with respect to each murder was distinct and easily compartmentalized, the risk of jury confusion at petitioner's trial was significantly limited. . . .