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MCCULLOUGH v. BENNETT

June 3, 2003

DAVID MCCULLOUGH, PETITIONER,
v.
FLOYD G. BENNETT, JR., SUPERINTENDENT, ELMIRA CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Gary L. Sharpe, Magistrate Judge

REPORT-RECOMMENDATION

I. Introduction

Petitioner, pro se David McCullough filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 in this District on July 12, 1999 (Dkt. No. 1) ("Pet."). In his petition, McCullough alleges two grounds for relief: i) ineffective assistance of trial counsel; and, ii) ineffective assistance of appellate counsel. Pet. at PP. 5-6. United States District Judge Lawrence E. Kahn issued an order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, that, inter alia, directed the Office of the Attorney General for the State of New York to file a response (Dkt. No. 5). The Attorney General filed an answer and memorandum of law requesting dismissal of the petition (Dkt. Nos. 10-11), and McCullough then filed a "traverse" in further support of his petition (Dkt. No. 12). Hon. David N. Hurd was elevated to the position of United States District Judge, and this matter was re-assigned to this court for the issuance of a Report and Recommendation pursuant to N.D.N.Y. Local Rule 72.3(c) (Dkt. No. 8).

II. Background

The testimony adduced at trial revealed that on June 16, 1995, the victim,*fn1 who lived in Syracuse, New York, had arranged for a babysitter to watch her two sons so that she could go out for the evening with her sister, who was visiting from Louisiana. See Tr. of Trial of David McCullough (11/27/95) ("Trial Tr.") at PP. 184-85. While the victim and her sister were at a local bar, an individual subsequently identified as McCullough approached the victim and stated that he could "show [her] a good time." Trial Tr. at PP. 190-91. Although she declined McCullough's invitation because she had a boyfriend at the time, later on that same night she agreed to allow him to drive her, along with her sister and her sister's companion, Mark Green, to the victim's home. Trial Tr. at PP. 191-93. Green decided that he wanted to return to his home, so McCullough stopped the car and dropped off Green and the victim's sister. See Trial Tr. at PP. 292-93. McCullough then drove for approximately ten minutes, stopped the car and informed the victim that he intended to sodomize her. Trial Tr. at PP. 197-98. The victim stated that she just wanted to go home, prompting McCullough to state that he would take her home "when he was done with [her]." Trial Tr. at P. 198. For the next two hours, McCullough subjected the victim to numerous oral, anal and vaginal sexual acts.*fn2 Trial Tr. at PP. 199-207. McCullough eventually agreed to drive the victim to her house, however, on the way there, his car stalled and he directed her to push the vehicle. Trial Tr. at PP. 208-09. When she indicated she was too tired to push the car, McCullough permitted the victim to walk home. Trial Tr. at P. 209. Upon arriving at her house, the victim immediately called 911. Trial Tr. at PP. 209-10. She was then taken by ambulance to a nearby hospital where she was treated for, inter alia, bruises to her face (including two black eyes), an injury to her knee that required five stitches, and rectal bleeding. Trial Tr. at PP. 210-12.

An Onondaga County grand jury indicted McCullough and charged him with first degree rape, first degree sodomy, second degree unlawful imprisonment and third degree assault. See Indictment No. 95-734-1. McCullough was tried by a jury regarding those charges with County Court Judge William J. Burke, presiding. The jury found McCullough guilty on all counts. Trial Tr. at PP. 419-20. Judge Burke sentenced McCullough to concurrent, indeterminate terms of ten to twenty years imprisonment for the rape and sodomy convictions, with a lesser, concurrent sentence for the assault conviction. See Sentencing Tr. (12/13/95) at PP. 9-10.

McCullough appealed his conviction to the New York State Supreme Court Appellate Division, Fourth Department. However, before that appeal was perfected, McCullough filed a motion to vacate his conviction pursuant to New York's Criminal Procedure Law § 440.10. In that (amended) pro se motion, McCullough argued: i) he was wrongfully excluded from sidebar conferences held by Judge Burke during the jury selection process; ii) the jury instructions regarding reasonable doubt were defective; iii) the manner in which the jury pool for McCullough's trial was chosen deprived him of his right to a fair trial; and, iv) the trial court improperly failed to instruct the jury concerning the defense of intoxication. See § 440.10 motion (6/11/96). Judge Burke denied that motion without a hearing in a Decision/Order dated July 23, 1996. See People v. McCullough, Index No. 95/1901, slip op. at P. 2. The Appellate Division denied McCullough's application for leave to appeal on May 30, 1997. See People v. McCullough, No. 95-734, slip op. at P. 1 (5/30/97).

In his direct appeal, McCullough reiterated his claim that he was deprived of his right to be present during sidebar conferences concerning prospective jurors. Appellate counsel also argued, inter alia, that McCullough received ineffective assistance of trial counsel during the jury selection process. See App. Br. at PP. 20-25. Since the record was silent as to whether McCullough was present for two sidebar conferences conducted by the County Court, the Appellate Division remitted the matter back to the County Court to conduct a reconstruction hearing. See People v. McCullough, 248 A.D.2d 938 (4th Dept. 1998). County Court Judge John J. Brunetti conducted the reconstruction hearing on April 6, 1998. After that hearing, he placed numerous findings of fact on the record regarding the jury selection process at McCullough's criminal trial, including his determinations that: i) McCullough was not present during the sidebar questioning of two prospective jurors, Mr. Loguidice and Mr. Clark;*fn3 ii) McCullough was not advised of his right to be present at those conferences; iii) Judge Burke learned that Mr. Clark possessed a state of mind that was likely to preclude him from rendering an impartial verdict; iv) Judge Burke indicated to Assistant District Attorney Bonnie Buccina, Esq. that defense counsel would prevail if Mr. Clark was challenged for cause; v) a prospective juror was dismissed on consent of both parties; vi) McCullough's trial attorney, Stephen Lance Cimino, Esq. had a custom and practice of deferring to a client's decision regarding the selection of a juror; vii) Cimino complied with that custom during the jury selection process at McCullough's trial;*fn4 and viii) Cimino indicated to McCullough that he would exercise a peremptory challenge regarding prospective juror Loguidice because a member of his family had been a victim of a crime.*fn5

After its receipt of Judge Brunetti's findings following the reconstruction hearing, the Appellate Division affirmed McCullough's convictions and sentences in all respects. See People v. McCullough, 254 A.D.2d 750 (4th Dept. 1998). The Court of Appeals denied McCullough leave to appeal. People v. McCullough, 92 N.Y.2d 1035 (1998).

On April 12, 1999, McCullough filed an application for a writ of error coram nobis, alleging that appellate counsel's failure to challenge the findings of Judge Brunetti after the reconstruction hearing amounted to ineffective assistance. That application was opposed by the District Attorney's Office, and on May 7, 1999, the Appellate Division denied McCullough's coram nobis application. See People v. McCullough, No. 1075-A/98, slip op. at P. 1 (5/7/99). After reconsideration of that order was denied by the Appellate Division, the Court of Appeals denied McCullough's application for leave to appeal. People v. McCullough, No. 95-734-1, slip op. at P. 1 (7/26/99).

III. Discussion

A. Standards of Review

Prior to addressing the merits, the court addresses the standards of review now employed when considering federal habeas petitions. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), a federal court may not grant habeas relief to a state prisoner on a claim: that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

1) resulted in a decision that was contrary to, or involved an unreasonable application, of, clearly established Federal law, as determined by the Supreme Court of the United States; or
2) resulted in a decision that was based on a unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d); see also, Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001). The AEDPA also requires that in any federal habeas corpus proceeding, "a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and ...

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