The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Petitioner, Bernard D. Alston ("Alston"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on one count of first degree rape (N.Y. Penal Law § 130.35(1)). 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
By Monroe County Indictment No. 6457/98, Alston was charged with first degree burglary and six sexual offenses (three counts of sodomy and three counts of first degree rape) against Cassandra Dean ("Dean"). The charges stemmed from an incident that occurred at Dean's house at 180 Webster Avenue on December 12, 1997. Count two charged sodomy under N.Y. Penal Law § 130.50(1)--namely, that Alston engaged in "deviate sexual intercourse . . . by forcible compulsion, to wit: contact between the mouth and the penis[.]" Respondent's Exhibit ("Resp't Ex.") E at 46. Both counts four and six also charged sodomy under N.Y. Penal Law §130.50(1) but under a slightly different theory--namely, that Alston engaged in "deviate sexual intercourse . . . by forcible compulsion, to wit: contact between the mouth and the anus[.]"
Resp't Ex. E at 47-48. Counts three, five, and seven charged Alston with first degree rape pursuant to N.Y. Penal Law § 130.35(1) under the same theory--that he "engaged in sexual intercourse with Cassandra Lee Dean, by forcible compulsion." Id.
Alston's jury trial was held in Monroe County Court (Egan, J.) in February 1999. Alston testified at trial despite an adverse Sandoval*fn1 ruling that allowed the prosecutor to question him about a 1990 conviction for possessing a stolen credit card. Dean, the victim, testified to four separate, non-consensual, alternating acts sex--oral sodomy, sexual intercourse, anal sodomy, and sexual intercourse. Alston, on the other hand, testified that he had one act of consensual sexual intercourse with Dean that night.
Dean testified that on the night of December 11, 1997, she had been partying at her sister's house at 751 North Goodman Street and had consumed more than a six-pack of beer.
T.182, 200-01.*fn2 According to Dean, she arrived home at approximately 4:30 a.m. in the morning of December 12th, at which point she laid down on the couch and watched television and dozed for a short time before hearing a knock on the door. T.184-86. The visitor was Norma Jean Colbert ("Colbert") who was a friend of Dean's. T.187.*fn3
While they were chatting, Alston approached on his bicycle and greeted Colbert*fn4 , who introduced him to Dean. Dean testified that she had never met Alston before. A few minutes later, Dean invited them both inside and they all chatted. T.191-92. After about thirty minutes, Colbert announced that she was ready to go. However, Alston did not get up to leave until Dean told him that he had to go, too. At that point, Colbert and Alston left. Dean locked the door and returned to the couch. T.194-96.
A short time later, Dean heard another knock. She testified that as she unlocked the door, the person outside pushed it open and forced his way inside the house. T.197. It was Alston, brandishing a knife. According to Dean, she tried to fight him off with the cast that she had on her right arm, but to no avail. Alston stated, "You are going to give me that pussy." T.198. Alston snatched off her blouse, grabbed her by the hair, and dragged her into the spare bedroom.
T.200. Dean related that Alston slammed her down onto a floor vent, causing her mouth to start bleeding. She said that Alston kissed her on the mouth and spat the blood out. T.203.
Dean testified that Alston "showed [her] the knife more" and told her to "get on [her] knees[.]" T.204. He then placed his penis into her mouth for a "[n]ot even five seconds." Id. Alston then announced, "[T]ake your clothes off, bitch. I want some pussy." Id. Dean took her clothes off, and Alston then put his penis into her vagina, while "calling [her] names, whores and bitches . . . and stuff like that." Id. Alton then stated, "[T]urn your ass around," and he put "his penis in [her] behind." T.205. Dean testified that his penis actually penetrated her anus and that she was in pain. On cross-examination, when asked if there was any bleeding, Dean replied affirmatively. T.302. Alston then removed his penis from her anus and put it back into her vagina, saying "[F]uck me back, fuck me back." Id. At that point, Dean testified, Alston ejaculated into her vagina, and laid on top of her for a few seconds. He then told her that she "better not get up" or he "was going to kill [her]." Alston then ran out the door. T.206.*fn5 Dean testified that the knife was not always displayed; that sometimes he put the knife into his pocket and would threaten to take it back out by "doing [her] rough." Id.
As soon as Alston left, Dean ran to her sister's house where she called 911 at 5:45 a.m.
T.211-12. She was taken to the emergency room where she was treated, a rape kit was prepared,*fn6 and she was then released. T.212. The physician's assistant testified that Dean was "emotionally upset, tearful, but not hysterical" and that her behavior was consistent with that of other sexual assault victims. T.316-17. The only sign of physical trauma was the lacerated lip; the physician's assistant testified, however, that a report of a person being anally penetrated did not necessarily yield any type of physical trauma. T.322.
Officer Koehn of the Rochester Police Department testified that when Alston voluntarily waived his rights and gave the following written statement which was introduced into evidence at trial:
I, Bernard Alston, am twenty-nine years of age, and reside at 825 North Goodman Street. Officer Koehn has explained to me that I have the right to remain silent; I do not have to say anything if I do not want to; anything I say can be used against me in a court of law; I have a right to talk to a lawyer before I answer any questions and to have a lawyer with me during questioning, if I so desire; if I can't pay for a lawyer, one will be provided for me before any questioning, if I wish; and that if I do agree to talk about this matter without a lawyer present, I can stop talking at any time. I have read the statement of my rights or have had this entire statement read to me. I willingly make the following statement: About a week ago at night, I remember because it was night, I had two forty ounce beers and was drunk. I was also high on cocaine. Also, I had been with someone who gave me a hit of cocaine. I was walking, I remember it was Webster Avenue, and I ran into a girl I know named Norma [Colbert]. Me and Norma's mom used to work together. Me and Norma went into a house on Webster Avenue. It was a brown house. There was a girl there who I recognized from a while ago. I know she's a prostitute, and I think she cheated me once before. By that, I mean, that we had smoked some drugs together before with the idea that we would have sex, and after we smoked she would leave and not have sex. Me and Norma and this girl went to get drugs, and this girl said when we get back, we will do something. I understood her to mean that we were going to have sex. After we smoked, Norma left. Then this girl put me out of the house. By that, I mean, she started opening the door and asking me to leave. I thought, she ain't [sic] going to do this to me again. I left and walked a couple of blocks. Then I came back. This girl opened up the door and let me in. I went into the house and thought we'd have sex. I tried to talk her into it and thought if I got her into the position for it, she would want to. You could say that I forced her. I kind of pulled on her and tugged on her. I took off some of her clothes and she took off her pants. Then we had straight sex. Afterwards, I left. Officer Koehn told me that this girl's name was Cassandra Dean or Sandy. I did find out later, afterward, this girl's son was a guy I know named Lamont because I had an altercation over the incident. I know I shouldn't have forced Sandy to have sex, that it was dead ass wrong, but I was drunk and wasn't thinking clearly. My job is very important to me and I want to return to it. I am trying to get my life together and I need my job. My boss is counting on me to be to work. My kid is counting on me too. I'm sorry that this happened and like another chance to maybe get into another rehab program. I gave this statement to Officer Koehn. He didn't threaten me or make promises to me.
Alston testified that on the night of the incident, he was walking down Webster Avenue when he saw Colbert, standing in the doorway of 180 Webster Avenue, talking to Dean. T.528. Alston said that he walked up to Colbert and asked her for a light, and that he was then invited into the house. Alston asked whether they "kn[e]w where any dope was[?]" Colbert responded affirmatively, and the three of them left to go purchase drugs. As they were walking, Alston asked Colbert if Dean was "dating," which is term used to "ask a prostitute . . . do you want to have sex for money or so forth." T.529. Colbert replied affirmatively and said, "[W]e can go back to Sandy's house[.]" Id.
Alston purchased two dime bags of crack cocaine and then they all proceeded back to Dean's house. On the way, Alston asked Dean if she was "dating" and Dean replied equivocally, asking "Why?" T.530. Once back at the house, Alston took out a dime-bag and split it three ways; they all smoked, drank beer and talked. T.530-31. Alston testified that he had a conversation of a sexual nature with the women; Colbert told Dean that she should make sure to have Alston perform oral sex on her because he was good at it. T.531. Colbert then asked about the other dime-bag, and so Alston pulled it out and the three of them smoked it, too. T.532. After that, Colbert said that wanted to leave Dean and Alston alone. She then left Dean's house. Id.
Alston testified that at that point he was "kind of anxious about the sexual part" so he "eased over to" Dean and said, "[Y]ou ready; you ready." Id. Dean remarked about "how high she was, and she didn't want to do anything right now, and at [that] point, she did ask [him] to leave, so, [he] left." Id.
Alston testified that he stood in the middle of the street for a minute and was "kind of pissed off" about what Dean had done. He was standing with his hands in his pockets and he "came across the two empty bags" and decided he "was going to make some dummy bags" filled with something that looked like cocaine to "try to trick Sandy into, you know, sex." T.533. Alston related that he found some drywall, which he broke into pieces and put in the bags. He then returned to Dean's house and knocked on the door. When she answered, he asked if he could use her "stem." She said yes, and when she realized he had bought more crack, asked for a "hit." Alston said, "I don't know because, you know, you kind of dis-sed [sic] me the last time."
At that point, Dean said, "[W]ell, we can still do something" but she wanted a "hit" first. T.535. Alston suggested having sex first, so she would not be too high, and Dean agreed. They proceeded to the spare bedroom where they had consensual sex; Alston stated on cross-examination that he could not remember whether he ejaculated. After they had sex, Alston gave Dean the "dummy" bag. She became "pretty pissed off" and was calling him "M F this and M F that, she'll kill [him]." T.536. Alston then left the house. He denied bringing a knife to Dean's house. Id.
Alston testified that he voluntarily accompanied the police to the police station and agreed to give a statement, after the police officers told him that they knew what kind of a person Dean was and that they wanted to hear his side of the story. T.541. He testified that the phrase in the statement about his getting Dean into a compromising position so that she would have sex with him was suggested by the officers, and that he was "kind of reluctant about this force thing." T.544. On cross-examination, Alston stated that the officers never said anything to him to the effect that if he gave a statement, they would let him go home. T.565. He testified that he remembered making the remark, "[Y]ou could say that I forced her[.]" T.569. He admitted that those were his words.
After the close of the prosecution's case, and before Alston testified, the trial court dismissed count six (anal sodomy) and count seven (rape) due the prosecution's failure to present proof as to these counts. (Dean only had testified to the burglary followed by four sexual acts, not six.) Counts one through five were submitted to the jury, which returned a verdict acquitting Alston of the first four counts and convicting him on count five. He was sentenced as a second felony offender to a determinate term of twenty-five years in prison followed by a five- year period of post-release supervision.
Represented by new counsel, Alston appealed his conviction to the Appellate Division, Fourth Department, of New York State Supreme Court. That court unanimously affirmed the conviction. People v. Alston, 275 A.D.2d 997, 714 N.Y.S.2d 252 (App. Div. 4th Dept. 2000). Leave to appeal to the New York Court of Appeals was denied. People v. Alston, 96 N.Y.2d 756, 748 N.E.2d 1078, 725 N.Y.S.2d 282 (N.Y. 2001). Alston filed a collateral motion to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 which was denied by the County Court (Marks, J.).
In his petition for federal habeas relief, Alston asserts the following grounds for relief:
(1) his conviction violates the Double Jeopardy clause because it is impossible to determine which act of rape alleged in the indictment formed the basis of the jury's guilty verdict; (2) his conviction is not supported by sufficient evidence and is against the weight of the evidence; (3) the trial court erred in precluding defense counsel from commenting on the counts of the indictment that were dismissed prior to submission of the case to the jury; and (4) trial counsel was ineffective in failing to file an omnibus motion compelling the prosecution to particularize the indictment, failing to question the trial court as to why counts three, four and five were not dismissed, and failing to ...