The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, William A. Barnard, Jr. ("Barnard"), has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Niagara County Court on charges of use of child in a sexual performance (N.Y. Penal Law § 263.05). The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The conviction here at issue stems from an incident in which Barnard allegedly photographed a fourteen-year-old girl posing nude in a sexually explicit manner in July 1999, at his house, after providing alcohol to her. The investigation commenced after the Niagara County Sheriff's Department received suspicious photographs from the police department in Hudson, Ohio, which had been turned in by Konica, a film processing company. Konica in turn had received the film from a pharmacy in Middleport, New York. The name on the envelope was "Bill Barnard," which could have referred to petitioner, or his son, William "Billy" Barnard, III. Because Billy was away at college and would not be home until Thanksgiving, the investigation was held in abeyance for a time.
When he returned from college, the police questioned petitioner's son, who identified the girl. He admitted that he had had sexual relations with her on several occasions but denied taking the photographs. He suggested that either his younger sister or his father had taken the photographs. On December 15, 1999, a search warrant was executed at Barnard'shome. He was arrested on a felony complaint and indicted on seven counts of Use of a Child in a Sexual Performance (N.Y. Penal Law § 265.03) and one count of Unlawfully Dealing with a Child in the First Degree (N.Y. Penal Law § 260.20(2)).*fn1 Barnard waived his rights and agreed to speak with the police, admitting that he had taken suggestive photographs of the victim, and another girl, Regina Soulvie ("Regina"), fully clothed, in the living room of his home. He denied taking any other photographs of the victim, including the ones forming the basis of the indictment.
At Barnard's jury trial in Niagara County Court (Broderick, J.), the victim testified that she had met Soulvie and Erin Barnard ("Erin"), the petitioner's daughter, in June 1999. She stated that she spent three to four nights out of the week at Erin's house over night. The victim recalled that Barnard had taken photographs of her and Regina while they were "messing around" in his living room; he instructed them to pose in various sexually suggestive positions. In these photographs, both girls were clothed. The photographs that were in issue were taken out behind Barnard's house at the bonfire pit late at night; the victim could not recall the specific date but said that it was sometime after July 4th and before July 23rd. The victim testified that Barnard gave her two to four cans of beer which she consumed within one hour; she stated that the alcohol caused her to feel "dizzy." According to the victim, Erin also was at the bonfire pit but had gone into the house before Barnard started taking the pictures.
Barnard told the victim to "take off [her] clothes" and "told [her] how to pose," and then he "took pictures as [she] was taking them off." T.178.*fn2 The pictures depicted the complainant exposing her breasts and her vagina. Barnard stated that "[i]t was for his son [William "Billy" Barnard, III] when he went off to college to remember [her] by." Id. Barnard "told [her] how to pose." T.179. The victim admitted that she was having a sexual relationship with Billy, who was eighteen years-old at the time.*fn3
Donna Horner ("Horner"), the store clerk from the pharmacy in Middleport where Barnard had dropped off the film, testified at trial. Horner related that both petitioner and his son used to bring film in to the pharmacy, and they distinguished themselves for her so that she would know who was who (petitioner was "W. Barnard" and the son was "the III"). Horner identified the film envelope dropped off on July 21st; it was not returned from the film processing company until July 23rd. (Because this exceeded the normal twenty-four hour turn-around time, there was no processing fee. The pharmacy kept the envelope in order to get credit from the film processing company.) Horner testified that Barnard picked up the photographs at issue on July 23, 1999.
Over the prosecution's objection, the defense called several witnesses to testify about the victim's sexual behavior at another party at Barnard's bonfire pit. Erin, Barnard's daughter, and Dashun Barnes, testified that they saw the victim and a boy named Steve in the back of a car and that the victim was "giving him head." T.474, 516. According to these witnesses, a girl named Lisa Gillis ("Lisa"), who liked Steve, attempted to pull the victim out of the car to beat her up. Erin testified that her father came outside and told everyone to leave. T.475. According to Erin, the victim left at about 1:30 a.m. with Steve.
Barnard testified in his behalf that he recalled a party at the bonfire pit at which the victim was present. He recalled that at one point, his daughter and Lisa came into the house and were very upset with the victim. He testified that he told everyone to leave the party. He telephoned the victim's house to tell her mother to expect Melissa home earlier than expected; apparently, the victim had been going to spend the night at the Barnard's house. The next day, the mother asked him why her daughter had come home early. Barnard testified that he replied that he did not believe the victim's behavior was appropriate for a sixteen-year-old. At that point, the victim's mother told him that her daughter was only fourteen. Barnard denied taking any nude photographs of the victim, although he admitted taking the photographs of the victim and Regina in his living room.
On February 9, 2001, the jury returned a verdict convicting Barnard on the counts alleging use of a child in a sexual performance in violation of N.Y. Penal Law § 265.03. The jury acquitted him of the charge of unlawfully dealing with a child by supplying alcohol to the victim. He was sentenced to an indeterminate sentence of twenty-months to five years in prison, with post-release supervision of three years. The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed his conviction. People v. Barnard, 295 A.D.2d 999, 743 N.Y.S.2d 3 (App. Div. 4th Dept.), lv. denied, 98 N.Y.2d 708, 778 N.E.2d 556, 749 N.Y.S.2d 5 (N.Y. 2002).
On July 25, 2002, Barnard collaterally attacked his conviction by means of a motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.30.*fn4 In support of his motion, Barnard raised the following arguments: (1) the prosecution presented false testimony to the grand jury and to the trial jury; and (2) the prosecutor failed to disclose material, favorable evidence to the defense, in violation of Brady v. Maryland, 373 U.S. 83 (1963). In particular, Barnard claimed that the prosecution failed to disclose a report dated July 21, 1999, received from the Hudson, Ohio police department. The trial court denied the motion on the basis that "[a]ll of the issues raised in [the] motion were (or, with due diligence, could have been) adequately preserved in the record and available for normal appellate review[.]" County Court Order dated August 20, 2002, at p. 2, Petitioner's Exhibit 13. The trial court clearly was relying on the procedural rule set forth C.P.L. § 440.10(2)(c), which provides that the court "must deny a motion to vacate a judgment when . . . [a]lthough sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure . . . to raise such ground or issue upon an appeal actually perfected by him[.]" N.Y. Crim. Proc. Law § 440.10(2)(c).
This habeas petition followed in which Barnard raises the following grounds for relief:
(1) the prosecutor knowingly suborned perjury by witnesses Donna Horner and Kristen Taberski;
(2) the grand jury testimony of Horner, William DuBois and Investigator Taylor were false;
(3) the prosecution "knowingly withheld evidence favorable to the defense untill [sic] such a time as it was unuseable to the defense at trial or on direct appeal";
(4) the prosecution "did not prove all the elements of the crime and the evidence does not support the conviction" (insufficiency of the evidence and weight of the evidence);
(5) the trial court improperly limited the defense inquiry into the victim's sexual behavior;
(6) the prosecution's use of an E.L.M.O. device (an overhead projector) to enlarge the nude photographs of the victim was prejudicial; and
(7) the sentence was harsh and excessive.
Respondent contends that Barnard's Brady claim is unexhausted. However, the allegations in support of this claim appear to have been raised in support of Barnard's C.P.L. § 440.10 motion. The claim is arguably procedurally defaulted, due to the motion court's reliance on C.P.L. § 440.10(2)(c), but respondent has not raised procedural default as an affirmative defense and therefore has waived it. See Larrea v. Bennett, 2002 WL 1173546, at *12 n. 15 (S.D.N.Y. May 31, 2002) ("Respondent does not argue that the state court's reliance on C.P.L. § 440.10(2)(a) as a separate basis for rejecting this claim created a procedural default. Thus, respondent has waived the affirmative defense of procedural default, and the Court may consider this branch of petitioner's ineffective assistance of counsel claim on the merits.") (citing Hooks v. Ward, 184 F.3d 1206, 1216 (10th Cir. 1999) ("[S]tate-court procedural default . . . is an affirmative defense, and [ ] the state is 'obligated to raise procedural default as a defense or lose the right to assert the defense thereafter.'") (quoting Gray v. Netherland, 518 U.S. 152, 165-66 (1996)).
Finally, the Court observes that Barnard has completed his sentence and was released from prison on February 23, 2006. A petitioner may file a petition for habeas relief only if he is "in custody." Wheel v. Robinson, 34 F.3d 60, 63 (2d Cir. 1994) (citing 28 U.S.C. § 2254(a)). However, § 2254(a) requires only that "'the habeas petitioner be "in custody" under the conviction or sentence under attack at the time [the] petition is filed.'" Id. (quoting Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (per curiam) (in turn citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)); accord Spencer v. Kemna, 523 U.S. 1, 7 (1998) (holding that the "in custody" provision only requires that the petitioner be in custody at the time the petition is filed). Thus, because Barnard filed his habeas petition while he was incarcerated, he satisfies the "custody" requirement of § 2254. The Supreme Court has held that a habeas petition challenging a criminal conviction is "not necessarily mooted when the petitioner is released from prison, as collateral consequences of that conviction may still impinge on the petitioner post-release, and therefore a case or controversy may continue to exist." Perez v. Greiner, 296 F.3d 123, 125 (2d Cir. 2002) (citing Pollard v. United States, 352 U.S. 354, 358 (1957); Sibron v. New York, 392 U.S. 40, 54-56 (1968) (citing deportation, inability to become a citizen, impeachment evidence in future criminal trials, and increased future sentences as examples of collateral consequences and asserting a ...