The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, John Hogan ("Hogan"), filed this pro se petition for a writ of habeas corpus challenging his conviction in Monroe County Court on charges of one count of first degree rape (N.Y. Penal Law § 130.35(1)), one count of second degree rape (N.Y. Penal Law § 130.30), four counts of first degree sodomy (N.Y. Penal Law § 130.50(1)), four counts of second degree sodomy (N.Y. Penal Law § 130.45), and two counts of first degree sexual abuse (N.Y. Penal Law § 130.65(1)). The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).
II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The conviction at issue here stems from Hogan's allegedly having forced his sister-inlaw, K.F., to engage in various sexual activities over the course of two years when she was eleven- and twelve-years-old. K.F., who was fifteen-years-old at the time of Hogan's jury trial in Monroe County Court (Berry, J.), testified that one of the first incidents occurred in March 1993 when she had been left in the care of Hogan and his now-estranged wife while her parents were away in Toronto. K.F. testified that after Hogan took her out shopping, he brought her back to his and his wife's apartment on Garson Avenue in the City of Rochester and made her watch a pornographic film featuring a man and woman having sex in front of a spectator. As K.F. was on the bed watching this, Hogan began to kiss her on the mouth and touch her vagina and breasts underneath her clothes. K.F. testified that she told him to stop, and attempted to physically resist him, but she was unable to do so because Hogan was much bigger than she was. Hogan told her that he wanted to have sex with her; when she said no, he did not pursue the idea. K.F. recalled that there were several of his guns in the bedroom, about three feet away. T.355-62, 425.*fn1 This incident gave rise to counts one through three of the indictment which alleged first degree sexual abuse.
The next morning, a Saturday, after taking her out for breakfast, Hogan brought K.F. back to the apartment and made her watch the same film. After kissing her, he removed her clothes. K.F. testified that she was afraid and "didn't know what was going to happen." Hogan put a condom on his penis and inserted it into her vagina. K.F. testified that "[i]t began to hurt so he didn't go in any more." Hogan then made K.F. get on her hands and knees and entered he her anally; K.F. did not resist because Hogan "was bigger than [her] and [she] wasn't sure what to do."*fn2 After Hogan removed his penis from her anus, Hogan told her that he "wanted [her] to have oral intercourse with him." K.F. acceded to this request. T.363-67, 425.
After he finished assaulting her, Hogan told K.F. not to tell anyone what had happened, threatening to "kill [her]" if she did so. K.F. believed him because he had told her stories about setting someone's house on fire and beating up a man in bar so badly that the man had to go to the hospital. K.F. also knew that, in addition to his guns, Hogan kept a large knife in his truck. K.F. testified that "[she] was scared." T.367-69. The Saturday morning incident formed counts four through seven of the indictment which alleged first degree rape, second degree rape, first degree sodomy and second degree sodomy.
More instances of abuse followed over the next two years. The next incident with which Hogan was charged occurred at K.F.'s uncle's wedding at Pineway Park in Spencerport on May 28, 1994. After the wedding, K.F. changed into play clothes, and she and Hogan tossed a ball around. He threw it far into the woods and when she went after it, he followed her and pulled her farther away from the rest of the wedding party. Pushing her up against a tree, Hogan told her to take off her pants, which she did. Hogan then performed oral sex on her, putting his mouth on her vagina. Hogan then turned her around and tried to have anal intercourse with her. K.F. testified that "[i]t didn't really succeed because it hurt, so he pulled out." Hogan again threatened to kill her if she ever told anyone. T.372-77. The Pineway Park incident gave rise to charges eight through thirteen of the indictment alleging three counts of first degree sodomy and three counts of second degree sodomy.*fn3
K.F. recounted several further threats. Once, when Hogan observed her writing a note to her friend, he warned her never to write anything about what he did to her or he would kill her. However, K.F. eventually confided in some of her friends, who advised her to talk to her mother and her sister. In October 1995, they reported the pattern of sexual abuse to the police. T.400, 411-13. At the close of her testimony, K.F. described a distinctive mark on Hogan's penis, which he had told her had resulted from being cut by a zipper. T.413-14.
Hogan's wife, who was estranged from him at the time of trial, could not recall the dates of her parent's trip to Toronto but recalled taking care of K.F. and her brother. She also testified that her husband was at home that weekend. Hogan worked at some odd jobs at the time, but none of them required being away overnight. His wife also confirmed the presence of pornographic videotapes in their bedroom and a scar on Hogan's penis which he attributed to a zipper injury. T.517-21, 525. His wife recalled trying to find Hogan at the wedding at Pineway Park in May 1994. She testified that he and K.F. were "gone together" and were missing for some time. T.521-24.
K.F.'s brother recalled Hogan and his wife supervising him while their parents were on a trip to Toronto during a weekend in March of 1993. On that Saturday morning, he remembered his sister coming back with Hogan with doughnuts or bagels. He also recalled his sister being missing at the wedding in Pineway Park. T.541-44, 554.
K.F.'s mother identified a photograph taken of her daughter and Hogan in the summer of 1993; K.F. did not even come up to Hogan's shoulder. K.F.'s mother dated the trip to Toronto as from March 3 to March 7, 1993, and her brother's wedding in Pineway Park as occurring on March 28, 1994.
Kelly Battoglia ("Battoglia"), an OB/GYN nurse practitioner who examined K.F. on November 15, 1995, testified that the girl's hymen was not intact but no signs of trauma were present. T.483. When asked what her findings were, Battoglia answered, "Basically what I have written here, and that was my assessment as follows: Patient claims quote sexual abuse." T.482. Defense counsel objected, and the trial court admonished the witness, "That's not a finding."
T.483. The court asked Battoglia, "What did you find as to your physical examination of [K.F.], allright?" Id. The witness answered, "Otherwise normal GYN exam." Battoglia testified that she was not able to tell whether or not the victim had had vaginal intercourse or anal intercourse.
T.484. According to Battoglia, there would have to be "specific circumstances" (e.g., live sperm in the vagina) in order to be an indication that the patient had vaginal intercourse. With respect to anal intercourse, there "really [wa]sn't any way for [her] . . . to tell whether someone had anal intercourse or not. T.484. On cross-examination, Battoglia admitted that the fact that the hymen was not intact did not necessarily mean that the victim had sexual intercourse. T.486. Battoglia testified as to other ways that a girl's hymen could be broken--for instance, if the girl used tampons or fell while riding a bicycle and hit her pelvic area on the cross-bar. T.486.
Anthony Capomaccio ("Capomaccio"), a manager of a nightclub, testified for the defense that he had employed Hogan "on and off since 1989," including the first week of March 1993, when Hogan had been hired to "watch some equipment" and clear trees at a building site in Irondequoit. There was a small barn on the property where Hogan "could have" stayed overnight. However, just prior to trial Capomaccio discovered a permit indicating that construction at this job site had not been authorized to begin until March 22, 1993. Nevertheless, Capomaccio reiterated that Hogan had been at the site "around the clock" for the entire weekend of March 5 to March 7, 1993. On cross-examination, Capomaccio admitted that he, personally, was not at the job site. He conceded, "[I]f I wasn't there, I guess he could leave." Capomaccio kept no payroll records or time sheets because Hogan was paid in cash. Capomaccio testified, "I don't have work records for anybody." T.573-97.
Hogan testified in his own behalf that he had been working for Capomaccio during March 1993, sleeping at the job site overnight "to keep an eye on the equipment." Hogan denied having brought K.F. to his house during the weekend of March 5 to March 7, 1993, or having sexually assaulted her. He was present at Pineway Park on May 28, 1994, where he recalled playing sports with "[K.F.] in particular." However, he denied having gone into the woods with her. Hogan testified that he discovered K.F. viewing his collection of pornographic videotapes without permission. He stated that K.F.'s brother once had accidentally seen the scar on Hogan's penis, which he described to the brother as having been caused by a zipper, but was actually a birth mark. T.602-09.
Hogan testified that K.F. was "very upset"when she heard of his plans to leave his wife and child and move to South Carolina in September 1995. Hogan also claimed that he offended K.F.'s brother by "kicking him out" of his house after the boy had come to live with him and his wife. According to Hogan, K.F.'s brother had violated the rules that they had set. T.608-13.
At the close of the proofs, the prosecutor consented to the dismissal of count of three of the indictment, which charged that Hogan had forcibly touched K.F. with his penis during the weekend in question in March 1993. K.F. had been expected to testify that Hogan did so on the first day of that weekend. The jury returned a verdict of guilty on all of the remaining counts submitted to it.
At sentencing, after hearing argument from the attorneys, the trial court declined to sentence Hogan as a persistent felony offender and instead sentenced him as a second felony offender, which was beneficial to Hogan. The court imposed sentences with a cumulative minimum of twenty-two and one-half years and a cumulative maximum of forty-five years.
Represented by new counsel, Hogan appealed his conviction. The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed his conviction.
This habeas petition followed. For the reasons set forth below, habeas relief is denied and the petition is dismissed.
The filing of Hogan's petition post-dates the enactment of Anti-terrorism and Effective Death Penalty Act ("AEDPA"), which revised the federal habeas statute. To prevail under 28 U.S.C. § 2254, as amended in by AEDPA in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).
Respondent contends that several of Hogan's claims are procedurally defaulted and barred from federal habeas review due to the state appellate court's reliance on an "adequate and independent state ground" in dismissing them. In particular, respondent points to Hogan's claims
(1) that the trial court erred in failing to issue an alibi instruction to the jury, (2) that the trial court erred in failing to include the victim's testimony on cross-examination when the jury requested a read-back of a portion of her testimony, and (3) that he was denied his right to a speedy trial. All of these claims were rejected by the Appellate Division as being "not preserved for [their] review" under New York Criminal Procedure Law § 470.05(2). See People v. Hogan, 292 A.D.2d at 834, 835.
As the Second Circuit has explained, the "independent and adequate state ground" doctrine first arose in the context of direct appeals to the Supreme Court from final judgments of the state courts. Garcia v. Lewis, 188 F.3d 71, 76 (2d Cir. 1999) (citing Coleman v. Thompson, 501 U.S. 722, 729 (1991) (The Supreme Court "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.")). This "rule applies whether the state law ground is substantive or procedural." Id. (citing Coleman, 501 U.S. at 729). Out of principles of "comity and federalism," then, federal habeas courts "faced with an independent and adequate state ground of decision defer in the same manner as does the Supreme Court on direct review." Id. (citing Coleman, 501 U.S. at 729; Washington v. James, 996 F.2d 1442, 1447-48 (2d Cir. 1993)). An exception to this doctrine "obtains only if the petitioner demonstrates both good cause for and actual prejudice resulting from his noncompliance with the state's procedural rule." Id. (citing Engle v. Isaac, 456 U.S. 107, 129 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977)) (emphasis added); see also Coleman, 501 U.S. at 750.
In Hogan's case, the Appellate Division found that his claims were procedurally defaulted because he failed to comply with New York's contemporaneous objection rule, which is set forth in C.P.L.§ 470.05(2).*fn4 The Second Circuit and the Supreme Court have held that a state's contemporaneous objection requirement is an independent state ground that precludes habeas review. See Garcia v. Lewis, 188 F.3d at 82 ("There is no question that the Appellate Division's explicit invocation of the procedural bar [set forth in C.P.L. § 470.05(2)] constitutes an 'independent' state ground, even though the court spoke to the merits of Garcia's claim in an alternative holding[.]") (citing Harris v. Reed, 489 U.S. 255, 263, 264 n. 10 (1989)); see also Wainwright v. Sykes, 433 U .S. at 86 (holding that federal habeas petitioner who has failed to comply with Florida's state-law contemporaneous-objection rule at trial had to show cause for the procedural default and prejudice attributable thereto in order to obtain review of his defaulted constitutional claim); accord Murray v. Carrier, 477 U.S. 478, 485-92, 497 (1986).
Under the circumstances presented here, the Court also finds that the Appellate Division's reliance on C.P.L. § 470.05(2) was an "adequate" state ground, it being "based on a rule that is 'firmly established and regularly followed' by the state in question." Garcia, 188 F.3d. at 77 (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). The Court finds that New York state courts routinely and evenhandedly employ the contemporaneous objection rule in holding jury instruction claims, read-back claims, and speedy trial claims unpreserved due to the want of a timely objection. E.g., People v. Brooks, 292 A.D.2d 540, 739 N.Y.S.2d 585 (App. Div. 2d Dept. 2002); People v. Sease, 305 A.D.2d 700, 759 N.Y.S.2d 695 (App. Div. 2d Dept. 2003); see also United States ex rel. Hogan v. Bara, 578 F. Supp. 1075, 1081 (E.D.N.Y. 1983) ("Where petitioner did not object to trial court concerning alleged denial of speedy trial, thus waiving that claim under New York Criminal Procedure Law, which constituted independent and adequate state ground for affirmance of conviction by the New York Supreme Court, Appellate Division, federal review of petitioner's constitutional claim was thus precluded."). Thus, the Court is satisfied that the Appellate Division's holding denying the claims under C.P.L. § 470.05(2) "rests on a state law ground that is independent of the federal question and adequate to support the judgment," Coleman v. Thompson, 501 U.S. at 729.
The Court, therefore, is barred from engaging in habeas review of this claim unless Hogan shows "cause for the default and actual prejudice" or that a "fundamental miscarriage of justice" will result from not considering the claim, Id. at 750. In this context, "'cause' . . . must be something external to the petitioner, something that cannot fairly be attributed to him." Id. at 753 (emphasis in original). "Actual prejudice" requires "showing, not merely that the errors at [petitioner's] trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original). Hogan has demonstrated neither. Furthermore, Hogan has not made a colorable showing of actual innocence, as he is required to do in order to benefit from the ...