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June 3, 1998

LUIS WILLIAMS, Petitioner, against JOSEPH McCOY, Superintendent, Cayuga Correctional Facility, Respondent.

The opinion of the court was delivered by: GERSHON


 GERSHON, United States District Judge:

 In this pro se petition for a writ of habeas corpus brought under 28 U.S.C. § 2254, petitioner Luis Williams challenges his November 28, 1989 conviction, after a jury trial in New York State Supreme Court, Nassau County (Harrington, J.). Petitioner was convicted of rape and sentenced to an indeterminate prison term of five to fifteen years.

 On direct appeal, the Appellate Division unanimously affirmed the conviction, holding that the evidence was legally sufficient to establish petitioner's guilt beyond a reasonable doubt; that the verdict was not against the weight of the evidence; that it was not error for the trial judge to admit evidence that the complainant was suffering from chlamydia; and that petitioner's remaining claims were either unpreserved for appellate review or without merit. People v. Williams, 176 A.D.2d 371, 574 N.Y.S.2d 787 (2d Dep't 1991). Leave to appeal was denied in January 1992. People v. Williams, 79 N.Y.2d 866, 580 N.Y.S.2d 738, 588 N.E.2d 773 (1992).

 In August 1994, petitioner moved to vacate his sentence pursuant to New York Criminal Procedure Law § 440.10, arguing that he was barred from an important sidebar conference in violation of his right to be present at all material stages of his trial. Petitioner's motion was denied on November 10, 1994. Leave to appeal also was denied. Petitioner's second motion to vacate on the ground that he had been deprived of effective assistance of counsel was denied on July 20, 1995.

 Petitioner then filed this petition for a writ of habeas corpus in which he asserts the following claims: (1) the evidence did not establish his guilt beyond a reasonable doubt; (2) the trial judge erred in excluding evidence that would have established the complainant's motive to fabricate; (3) the trial judge erred in admitting evidence that the complainant was suffering from chlamydia and that her behavior changed following the alleged rape; (4) the trial judge mis-instructed the jury on evaluating witness credibility and on the elements of rape, and erred in denying petitioner's request for a missing witness instruction; (5) defense counsel was ineffective; and (6) petitioner was unconstitutionally barred from a Sandoval hearing.


 The prosecution presented evidence at trial that petitioner raped and sexually abused Yuisa Santiago, his ex-girlfriend's nine-year-old daughter.

 Santiago testified that in November 1988, petitioner came to her room while she was watching television, pushed her gown up, and started touching her breasts. On December 22, 1988, petitioner again entered Santiago's room, this time while she was sleeping. He pulled her gown up and lowered her sweat pants and shorts to her knees, then stood by the television, lowered his shorts, and rubbed his penis until "some gooey stuff" came out. Santiago further stated that petitioner rubbed the "gooey stuff" onto his stomach, then knelt over her and began to rub her breasts. He put his penis in her vagina and "started going in circles" until she felt "some gooey stuff" in her vagina. Before leaving, petitioner told Santiago that he would kill her baby brother if she told her mother what had happened.

 Marina Cortez, Santiago's mother and petitioner's former girlfriend, testified that on January 30, 1989, Santiago came to her crying and told her that petitioner had raped her. Cortez telephoned Santiago's natural father, who took Santiago to her aunt's home in the Bronx. On February 9, 1989, Cortez brought Santiago to North Central Bronx Hospital where she was examined by the hospital's child protective unit.

 Cortez further testified that she and petitioner had separated in December 1988, at which time she and Santiago had returned to the Bronx. When Cortez and petitioner reconciled on January 1, 1989, Santiago did not want to return to Uniondale. In January 1989, Cortez noticed that Santiago cried a lot and stayed in her room whenever petitioner was in the house. Cortez also explained that once, while she was doing laundry, she noticed that Santiago's underwear was stained with discharge and blood. Santiago periodically complained that her stomach hurt, and occasionally called Cortez to the bathroom, where she noticed that Santiago was bleeding.

 Lauren Kramer, a pediatric nurse at North Central, testified that when she examined Santiago on February 9, 1989, her hymenal opening was seven to eight millimeters in diameter, which was within normal limits for a child of her age, but that Santiago had abnormal vaginal discharge. Kramer further stated that Santiago was an "essentially well child" and that the vaginal and rectal exam were "essentially normal without sign of sexual abuse".

 Dr. Linda Cahill, Director of Child Protective Services at North Central, examined Santiago on February 24, 1989, after Santiago had tested positive for chlamydia during her first exam. Cahill testified that Santiago had clear vaginal discharge and mild redness around the hymen, and that these findings were consistent with the diagnosis of chlamydia. The remainder of the examination was normal. Cahill explained that penile penetration in a child's vagina does not always cause tearing in the hymenal area and that chlamydia in a child is "virtually diagnostic of sexual abuse."

 Cahill further testified that Santiago told her that petitioner had come to her room in November, covered her mouth with his hands, and touched her breasts. He put his fingers in her vagina and rubbed his penis until "yellow-white sticky stuff" came out, then rubbed her vagina again. The episode lasted fifteen minutes and then petitioner went through Santiago's things for an hour and a half. Cahill asked Santiago if she had been raped and Santiago said "no." Cahill concluded that the diagnosis of chlamydia was "consistent with a history having been touched by someone contaminated with semen on his hand."

 In an effort to establish inconsistencies in Santiago's testimony, defense counsel called as witnesses two Nassau County Police Department detectives who had interviewed Santiago in February 1989. Detective Walleen Jones testified that Santiago told her she had been raped the day before she left Uniondale for the Bronx in December 1988. Jones further testified that, in her experience, two or three statements must be taken before a child who has been sexually abused tells the full story and, in some cases, a child never discloses the full details of a sexual attack. Detective Thomas Brennan testified that Santiago told him that on December 23, 1998, she was asleep in her room when a noise in the hallway woke her up. She fell back to sleep and, when she woke up for the second time, petitioner was touching her breasts. Petitioner put both hands in her underpants and rubbed her vagina, then touched her breasts again before leaving the room. Petitioner told Santiago twice that he would kill her brother if she told her mother. Santiago did not tell Brennan that she had been raped.

 Petitioner, who testified in his own defense, denied raping or sexually abusing Santiago and claimed that he had never gone to Santiago's room at night. He also testified that on December 22, 1998, the date of the alleged rape, Santiago and her mother had already left Uniondale for the Bronx.

 Petitioner further explained that he had had a good relationship with Santiago while they lived in the Bronx, but that Santiago was "bored" when they moved to Uniondale in October 1988, and was "fresh" with him and Cortez. Santiago wanted to return to the Bronx and once said to him, "Well, I am tired of you telling me what to do. You are not my father." Petitioner further stated that Santiago's natural father often called Cortez in Uniondale, and that he and Cortez argued about the calls.

 Petitioner explained that Cortez and Santiago had returned to the Bronx temporarily on November 15, 1998, so that Cortez could be close to the hospital where she was going to give birth. They returned to Uniondale in late November or early December after Luis, Jr. was born, then left again in late December when he and Cortez separated. When Petitioner and Cortez reconciled on January 1, 1989, and ...

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