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July 13, 2005.

ERICK ELLIS, Petitioner,
WILLIAM PHILLIPS, Superintendent, Green Haven Correctional Facility, Respondent.

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge


To the Honorable Sidney H. Stein, United States District Judge:

Pro se petitioner Erick Ellis seeks a writ of habeas corpus from his May 4, 1999 conviction in Supreme Court, Bronx County, of first degree kidnapping, three counts of first degree rape, first degree sodomy, third degree assault, three counts of second degree criminal possession of a weapon and two counts of third degree criminal possession of a weapon, and sentence to an aggregate sentence of thirty five years to life imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-5.)

  Ellis' habeas petition raises six grounds concerning jury selection, duplicitous rape charges, consecutive sentences, and violation of his Confrontation Clause and Brady rights. (Pet. ¶¶ 13(1)-(6).) For the reasons set forth below, Ellis' habeas petition should be DENIED. FACTS

  Jury Selection

  On January 21, 1999, the trial judge began jury selection by informing defense counsel:
[M]y practice is generally not to ask defendants to waive their rights to anything if I can avoid it. And so with respect to jury selection, so I don't have people come up to the bench for any purpose during jury selection, it really isn't necessary. And all the times the jurors will approach is at the very beginning when I will ask them because of the length of the trial, the anticipated length being two weeks post-selection and mandatory sequestration, that will generally either result in many — I might as well throw into that the nature of the crime as well. That will probably result in self-selection out of a number of people.
None of those matters other than the nature of the crime, I don't even think would probably need the defendant. If there is a reason after that that the juror has to do that, we usually do it in the robing room with defendant present and everyone else. Unless there is some reason why you don't want to do that.
[ELLIS' DEFENSE COUNSEL]: I'll explain it to Mr. Ellis, Judge.
(Voir Dire 1: 1/21/99 Tr. 53-54.) After the court's statement and counsel's explanation to the defendant, neither counsel nor defendant objected. (See id. at 54-55.) Jury selection then ensued in the manner described by the judge: prospective jurors were questioned regarding their availability and the "nature of the crime." (See generally Voir Dire 1: 1/21/99 Tr. 61, 67-106.) Nineteen venirepersons approached the bench, had sidebar discussions out of Ellis' presence, and were excused for cause or peremptorily; none served as a juror. (See Dkt. No. 5: A.D.A. Curbelo Aff. Ex. 1: Ellis 1st Dep't Br. at 5-8.) In addition to the sidebar issue, at issue are two venirepersons as to whom the judge denied defense counsel's for-cause challenges: Jesetty Paulino and Gabriela Taveras.

  Proceedings Regarding Ms. Paulino

  During jury selection on January 21, Ms. Paulino stated at sidebar that she could not serve on the jury because of her job. She explained: "I can't take off from work a couple of days because I'm a social worker in Family Court and I have to serve my cases which I have many at the end of the month." (Voir Dire 1: 1/21/99 Tr. 84.) The judge declined to excuse her. (Id.)

  Ms. Paulino, along with 23 additional venirepersons from the jury pool, were then called to sit in the jury box for voir dire. (Voir Dire 1: 1/21/99 Tr. at 115-19.) Ms. Paulino was potential juror number twelve. (Id. at 117.) The judge asked questions regarding prior jury service, relations to law enforcement personnel, victimization of crime, and entertained requests to speak at sidebar. Ms. Paulino again came to sidebar and stated:
Yes, first. It is regarding my job. As I said before, I work for the Family Court. I'm a social worker for foster care. I have cases where families have different problems from situations like rape to drugs and negligence. I can't say that it's gonna effect my professional manner here or in my job.
But regarding the other question about a criminal circumstances close to me, myself or any family member. I was raped on two occasions. When I was a little girl around seven by a family member, nothing happened there. And the second one was two years ago by an ex-boyfriend. He's in jail at this moment. That's it.
(Voir Dire 1: 1/21/99 Tr. 162-63.) The judge asked Ms. Paulino whether it was possible for her to sit on a case like this, and she replied: "I'm a professional at my job. I could be professional here too." (Id. at 163.) She further described how she encountered disturbing situations as a social worker but was always able to maintain her professionalism. (Id.) She confirmed that she would be fair to the defendants. (Id. at 164-65.) The judge, in explaining to the defense why Ms. Paulino was not excused, stated:
This is a woman who requested not to sit on this jury [because of work] and yet under all of the circumstances, when put to it, says my professionalism allows me to be fair and impartial. She didn't take the out that was clearly there for her . . . Based on what she said, she can be fair and impartial. For whatever her reasons may be, she has dealt with her own past. And if she deals with it right in terms of professionalism, that's the way she's due to operate. That does not make her a cause challenge, so that's why I did not automatically excuse her.
(Voir Dire 1: 1/21/99 Tr. 177; see also id. at 178-80.) The judge explained the following day when ruling on further challenges for cause that Ms. Paulino's "body language as well as her general demeanor says that she thinks that she can do this unobstructed by her own experience." (1/22/99 Tr. 260.)

  Defense counsel used a peremptory challenge against Ms. Paulino, juror number twelve. (Id. at 261.)

  Proceedings Regarding Ms. Taveras

  Ms. Taveras was called to sit in seat one on a subsequent voir dire panel. (See Voir Dire 3: 1/25/99 Tr. 50.) During the judge's initial questioning, Ms. Taveras revealed in open court that she was a school teacher and had previously served as a juror on a criminal case and reached a verdict in an endangering the life of a child case. (Voir Dire 3: 1/25/99 Tr. 71, 89.)

  Co-defendant Bogle's attorney reminded the panel about the importance of keeping an open mind and specifically addressed Ms. Taveras' serving as a juror on a criminal case. (Voir Dire 3: 1/27/99 Tr. 147.) Ms. Taveras stated she was not sure how she would react if someone started crying at trial and that "I'm a woman and you know, it's hard, you know, like say keep an open mind. I am going to try to keep an open mind, but . . . [y]ou don't know how you're going to react that day." (Id. at 148; see also id. at 148-52.)

  Ellis' counsel explained to the panel that Ellis was not required to testify and asked whether anyone would "say something" if accused of similar crimes. Ms. Taveras responded that she would "speak up" and that "[m]aybe because I don't understand the system that well . . . I would speak up if I feel strongly I didn't do something." (Id. at 160-61.) Nevertheless, Ms. Taveras noted that she would respect Ellis' decision not to testify "because that's what he chose." (Id. at 161.)

  Later, defense counsel asked the panel whether "just because someone swears to tell the truth doesn't necessarily mean that's what we are gonna hear?" (Id. at 165.) Ms. Taveras responded that "it makes you wonder why are they putting their hand under oath, you know, if they're not telling the truth." (Id.)

  Defense counsel challenged Ms. Taveras for cause on the ground that she "didn't know if she could keep an open mind." (Id. at 168-69.) The judge disagreed, stating that she only did not know how she would react if somebody started crying on the witness stand, and that there was no expectation that Ms. Taveras would "park her emotions outside." (Id. at 169.) The judge further noted that Ms. Taveras never stated that she would have a problem or that she could not be impartial. (Id.) Ellis' attorney also challenged Ms. Taveras for cause on the ground that she indicated she would testify if accused of a crime. (Id. at 172.) The judge responded that every prospective juror will say he/she would testify in such circumstances (id. at 172-73), and further noted that Ms. Taveras stated she would respect Ellis' decision not to testify (id. at 175).

  Counsel for co-defendant Bogle also challenged Ms. Taveras for cause on the ground that she may believe everything a witness says when she stated "why would [a] witness lie" after being sworn. (Id. at 170.) The judge denied this challenge, noting:
We presume someone, once sworn, is constrained to tell the truth. Cross-examination is there for the purpose of making sure that they are, in fact, telling the truth. But to explain that particular sequence to a jury, it's a hard thing to do. . . . So I don't think the fact that she anticipates that people are sworn to tell the truth will tell the truth is a bad thing. I think that's what we all expect.
(Id. at 171-72.)

  The defense used its last two peremptory challenges against Ms. Taveras and another potential juror. (Id. at 177-78.) The judge denied the defense's application for additional peremptory challenges beyond the twenty per side they were originally given. (Id. at 181.)

  The Prosecution Case at Trial

  On June 21, 1996, 27 year-old Neville Bethune was living in his mother's apartment on Whitehall Place in the Bronx. (Bethune: Trial Transcript ["Tr."] 7.) Bethune was home that evening at 10:00 p.m. with his seventeen-year old girlfriend, Catrena S.,*fn1 when Olive Richards ("Charm"), who lived in the basement apartment, knocked on the door. (Id. at 7-8; Catrena: Tr. 458-59, 502.) Charm told Bethune to come downstairs to her apartment because she wanted to show him something, so he got dressed and went downstairs. (Bethune: Tr. 8; Catrena: Tr. 459.)

  The Kidnapping

  When Bethune arrived at Charm's apartment, he went into the back bedroom and immediately saw Ellis, Maxwell Bogle (Ellis' co-defendant), and a third man known as "Linky," all of whom were armed with guns. (Bethune: Tr. 8-9, 11, 14, 22, 133-34; Catrena: Tr. 461, 463.) Charm stated "[w]e got you. . . . We found out that you took — you got us robbed." (Bethune: Tr. 14.) When Bethune denied any wrongdoing, the three men proceeded to assault him, strike him with their guns, kick him, and demand money that they thought he had participated in robbing from them. (Id. at 14-19, 24; Catrena: Tr. 463-64, 507-10.)

  While the three men were assaulting Bethune, Charm returned to Bethune's apartment and told Catrena that Bethune wanted to see her downstairs. (Catrena: Tr. 460.) Catrena followed Charm downstairs to the backroom where Bethune was being held by the three men. (Catrena: Tr. 461-64; Bethune: Tr. 22.) The men continued to ask about money and assault Bethune in front of Catrena, using her to compel him to reveal information. (Bethune: Tr. 23-24.)

  The Rapes

  Ellis pointed his gun at Catrena and told her to go into the bathroom (Bethune: Tr. 27; Catrena: Tr. 464, 530-31), where Ellis demanded Catrena remove her pants and undergarments, and told her to "get up on the sink." (Catrena: Tr. 464). Ellis told her that she had to do what he said if she wanted to live. (Id.) At gunpoint, and with a condom, Ellis inserted his penis into Catrena's vagina. (Id.) When he finished raping her, Ellis told Catrena to put her clothes back on and return to the bedroom. (Id.)

  Catrena returned to the bedroom with Ellis, who gave Bogle a condom. (Bethune: Tr. 28-29, 31.) Bogle proceeded to orally and vaginally rape Catrena at gunpoint. (Catrena: Tr. 464-65.) After Bogle finished, Catrena got dressed and returned to the bedroom. (Id. at 465.)

  In the bedroom, Ellis pointed his gun at Catrena again and told her to return to the bathroom. (Catrena: Tr. 466.) Bogle took Bethune by the bathroom and forced him to witness Ellis orally and vaginally raping Catrena at gunpoint. (Bethune: Tr. 29-31.) After Ellis finished, Catrena returned to the bedroom on demand, where Bogle orally and vaginally raped her at gunpoint while Bethune was forced to watch again. (Catrena: Tr. 466-67.)

  After Bogle finished raping Catrena, Ellis proposed to take Catrena into the bathroom again, but realized there were no condoms left. (Bethune: Tr. 31) He gave Vivenne Bruce, who was present in the apartment, money and instructed her to go buy more condoms, which she did. (Bethune: Tr. 9, 31, 134-35, 183-84.) When she returned with more condoms, Ellis took Catrena back into the bathroom (id. at 31-32, 135), and vaginally raped her (Catrena: Tr. 468). When finished, Ellis told her to return to the bedroom. (Id.)

  Bogle took Catrena out into the hallway and vaginally raped her at gunpoint again. (Id.) Ellis demanded money from Bethune and forced him to watch Bogle rape Catrena, who after vaginally raping her, forced her to perform oral sex on him. (Id.) Bogle then took Catrena into the bedroom. (Id.) By this time, Catrena had been in the apartment "all night, into the morning" (id. at 469, 474), and was about to fall asleep when Ellis brought her to the bathroom and vaginally raped her one last time at gunpoint (id. at 469-70, 512).

  In total, Catrena testified to seven acts of rape. (Catrena: Tr. 511, 529-30, 544, 548.)

  The Police Arrive

  Bethune managed to escape from the apartment and called the police. (Bethune: Tr. 35-41.) The police arrived around 8:00 a.m. on June 22, 1996, apprehended Bogle and Ellis at the scene, and took Catrena to Our Lady of Mercy Hospital for treatment. (Catrena: Tr. 474, 476, 515-16; Bethune: Tr. 45-47; Shaw: Tr. 68-69; Schiffman: Tr. 691-93, 815.) At the hospital, Nurse Lydia Reidy was present when a doctor examined Catrena and collected samples for a rape kit. (Reidy: Tr. 233, 237-40; Catrena: Tr. 478.) The hospital retained hair and blood samples from Catrena and her underwear. (Catrena: Tr. 478)

  Meanwhile, Detective Stanley Schiffman obtained a search warrant and returned to Charm's apartment, where Detective Peter Boylan of the Crime Scene Unit recovered two condoms and a condom wrapper from the kitchen trash can. (Boylan: Tr. 667, 669-70, 674, 676-77; Schiffman: Tr. 703-04.)

  The police conducted two lineups, at which Catrena identified Ellis and Bogle. (Catrena: Tr. 482-86.) The DNA Evidence

  Four months later, on October 21, 1997, at Jacoby Hospital, Detective Schiffman observed a medical technician extract samples of Ellis' and Bogle's blood. (Schiffman: Tr. 709-10.) The samples were mailed to Danny Doucette, a case aid in the Bronx District Attorney's Office. (Doucette: Tr. 407, 414; Schiffman: Tr. 710.) A sample of Catrena's blood also was taken. (Schiffman: Tr. 711.) Doucette mailed the blood samples, Catrena's rape kit, and the condoms recovered by Detective Boylan to CBR Laboratories in Boston, ...

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