The opinion of the court was delivered by: John Gleeson, United States District Judge
FOR ONLINE PUBLICATION ONLY
James Webb petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, having been convicted in the Supreme Court of New York, Kings County, of four counts of rape in the first degree, three counts of sodomy in the first degree, two counts of robbery in the first degree, one count of attempted sodomy in the first degree, one count of robbery in the third degree, one count of assault in the second degree, and one count of endangering the welfare of a child. Webb was sentenced to a total of 125 years to life, which, by operation of New York law, is commuted to a maximum of fifty years to life. N.Y. Penal Law § 70.30(1)(c)(iii). Oral argument of the petition was held by telephone conference on December 2, 2005.
For the reasons set forth below, I deny the petition.
The evidence at trial established the following. On August 17, 1995, at 3:30 a.m., Deborah Williams was walking home from a card game when she was grabbed from behind in a choke hold; her assailant pressed a sharp object to her face and forced her to the rear of Public School 20 in the Fort Greene / Clinton Hill section of Brooklyn, where he raped and sodomized her. The assailant took the cash Williams had on her and a box cutter and left, telling Williams to stay put and count to a hundred. Later that day, Williams was treated at Brooklyn Hospital Center; serological testing on her underwear returned positive for the P-30 antigen, which is present in all semen samples, but little or no spermatazoa were found. Williams described her attacker as a dark-skinned black male, with a low "Afro" hairstyle, approximately five feet eight inches tall, about forty-five years old, and a gap between his front teeth.
On November 14, 1995, at 6:30 p.m., 16-year-old Erica South was walking home from school near P.S. 20 when she was grabbed from behind by the neck, choked, and told to "shut up, shut the fuck up." Tr. 433, 435.*fn1 Her assailant forced South down to the same landing behind P.S. 20 where Williams was raped, and there he raped and sodomized South in similar fashion. South was treated at Brooklyn Hospital Center, and although the vaginal swab tested positive for the P-30 antigen, no spermatazoa was present. South gave a description of her attacker similar to the one Williams gave.
A week later, on November 21, 1995, Lena Jones was choked from behind while she was walking on Washington Avenue in Fort Greene / Clinton Hill. Jones's attacker dragged her into some bushes near an abandoned hotel, telling her to "shut the fuck up, don't say anything," Tr. 617; he got on top of her, choking her, and scratched her across the face. Fortunately, Jones struggled continually and managed to get away, and when Jones fled, her attacker took her unisex leather coat. Jones described her assailant to the police as a dark-skinned black man in his forties with a large gap between his teeth.
On November 27, 1995 at 10:15 p.m., Denise Chapman was walking along Washington Avenue in Fort Greene / Clinton Hill. She was approached from behind and choked, told to "shut the fuck up," and dragged into a park below street level in the P.S. 11 schoolyard. As with the other victims, the assailant forced Chapman to take off only one leg of her pants, making it impossible for her to run with any speed. When Chapman tried to get away, she tripped on her own clothing. The attacker put a box cutter to her face, and threatened to kill her if she tried to run again. The man then stole her jewelry, raped her, and sodomized her. Chapman was treated at Woodhull Medical Center, and serological testing revealed the presence of the P-30 antigen, without spermatazoa.
On December 4, 1995, Tanya Freeman left her boyfriend's house and was walking in Fort Greene / Clinton Hill when she was approached from behind and grabbed by the arm, a hard object poked into her back, and told to just walk and that she would not be hurt. After six or seven blocks, the man put Freeman in a choke hold and dragged her into an abandoned building, where he raped and sodomized her. Afterward, Freeman's attacker became concerned that he could not find his wallet, and said that he would set the building on fire so as not to leave any evidence. The man started the fire and the two ran out of the building. Her description of her assailant matched those given by the other recent victims.
Because the circumstances of these crimes created a pattern, the police worked with victims South and Chapman to create a composite sketch. James Webb had very recently been released from prison, and when his parole officers saw the sketch, they contacted the detectives working the case. South was then shown a six-person photo array containing Webb's picture, but she did not identify him. Jones was shown the same array, and she identified the defendant. The police then brought Webb in for a lineup and, one by one, the five victims independently identified him as their attacker. The victims had no contact with any of the fillers or with each other before viewing the lineup. When South saw the lineup, she immediately identified the defendant to the detective; she then asked the detective if each of the individuals could stand up and say, "Shut up. Shut the fuck up." When Webb did so, South began to cry: "Oh my God, that is him." H. Tr. 34-35, 384.
Because the medical evidence collected from the victims suggested the rapist was ejaculating semen but not spermatozoa, the prosecutor sought the court's permission, which was granted, to perform a medical examination of Webb and to retrieve reference samples of saliva and blood for forensic testing. Shortly thereafter, the D.A.'s office issued a subpoena for Webb's prison medical records. The subpoenaed material was improperly sent to the D.A.'s office, rather than to the court, as it should have been. The prosecutor did not secure a waiver of the doctor-patient privilege before receiving Webb's medical records.
The medical examination, as well as Webb's medical records, revealed that Webb suffered from bilateral undescended testicles, a congenital condition resulting in azoospermia, that is, the capacity to produce semen but not spermatozoa. This condition does not affect the ability to have and maintain an erection. Webb moved to suppress the evidence from both sources, but the trial court granted it only as to his medical records. The physical examination, the trial court ruled, having been sought before the subpoena was issued, constituted an independent source for the evidence and therefore should not be suppressed.
Webb also moved the trial court to suppress the identifications from the lineup on the ground that the lineup was unduly suggestive. The court denied his motion, and each of the victims made in-court identifications of him at trial.
Forensic medical evidence collected from three of the victims -- Williams, South, and Chapman -- was introduced against Webb; no such evidence was introduced by the prosecution with respect to Tanya Freeman, who testified she had engaged in consensual sex with her boyfriend at his house shortly before she left on the night she was raped. Because the semen samples contained no sperm, however, the DNA testing now typical in rape cases was impossible; the methods employed were those used prior to DNA testing, based upon the ABO blood types and the GM and KM markers. With respect to the semen sample collected from Williams, the forensic testing showed that Webb's reference samples were consistent with him being the donor and that the probability of another member of the African-American community, chosen at random, being the donor was 1 in 500. Webb's reference samples were also consistent with him being the donor of the semen samples collected from South and Chapman, with the probability of a random member of the African-American community being the donor of those samples 1 in 30 and 1 in 60, respectively.
After a lengthy trial, the jury returned verdicts of guilty as to all five victims, although Webb was acquitted on the charge of robbery of Deborah Williams.
Webb appealed, and he was appointed new counsel to assist him. When appellate counsel advised Webb he intended to raise only one issue in his brief -- that the trial judge improperly denied Webb's challenges for cause against two prospective jurors who were police officers -- Webb sought new counsel. That request was denied, but Webb was allowed to submit a supplemental brief pro se, in which he raised numerous other claims. The Appellate Division affirmed his convictions, denying all of Webb's claims on the merits. People v. Webb, 728 N.Y.S.2d 402 (2d Dep't 2001). On December 18, 2001, the New York Court of Appeals denied Webb's application for leave to appeal the Appellate Division's decision. People v. Webb, 97 N.Y.2d 689 (2001).
On December 11, 2002, Webb filed a pro se motion in the state trial court to vacate his conviction, and the next day he petitioned this court for a writ of habeas corpus. Because Webb's habeas petition contained claims Webb had not exhausted in state court, upon consent of the parties, this court stayed consideration of the petition and held it in abeyance pending Webb's exhaustion of all his claims in state court. On May 21, 2004, the state trial court denied Webb's motion to vacate his conviction, People v. Webb, 2004 WL 1152748 (2d Dep't 2004) (Gerges, J.) (unpublished disposition)*fn2 , and on November 12, 2004, Webb moved the Appellate Division pro se for a writ of error coram nobis claiming ineffective assistance of appellate counsel. The Appellate Division denied that motion on February 14, 2005, People v. Webb, 789 N.Y.S.2d 432 (2d Dep't), and the Court of Appeals denied leave to appeal on May ...