The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
DECISION AND ORDER AMENDED
Petitioner, Jeffery*fn1 Wynters ("Wynters"), filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on May 11, 2000, on one count of first degree rape. 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 Wynters' alleged rape of thirteen-year-old V.R. in January 1998. V.R. had met Wynters in 1997 while walking down Pennsylvania Avenue in the City of Rochester on her way home from school with her friend Maria Hucks. T.223.*fn2 Maria*fn3 had introduced the man as Anthony Wynters and said that he was a friend of her mother's (Yelta Hucks). Between their initial meeting and the date of the incident, V.R. saw Wynters in August 1997 at a Rite-Aid pharmacy; he asked her how school was going and told her that she "looked nice that day." T.227. V.R. saw him again in November 1997 as she was walking down Pennsylvania Avenue on her way to school; he was driving the same red Dodge Neon. At that time, Wynters had offered to give V.R. ride home in his red Dodge Neon. V.R. declined, but she did take his pager number when he offered to take her out sometime. However, V.R. testified that she never paged Wynters. T.229.
In early January 1998, V.R. was walking to school down Pennsylvania Avenue at about 7 o'clock in the morning when Wynters pulled up next to her in his red Dodge Neon. He asked if she would like to go to breakfast with him. T.230. This time, V.R. accepted the offer and got into the car. V.R. testified that she was not afraid to get in the car with him because she "had met him before." T.231. Once she was inside the car, Wynters said that he needed to return to his house to get some money. When they arrived at Wynters' house on Melville Street, Wynters asked V.R. to come inside with him. V.R. agreed and followed him to his upstairs apartment.
Once there, V.R. sat in the living room on the couch while Wynters went to his bedroom. When he returned, he sat on the couch next to her and inquired as to whether she liked cartoons. Wynters then stood up and went back into the bedroom, returning a short while later. Wynters then asked V.R. if she had a boyfriend and complimented her, telling her that she was pretty.
T.233-34. Wynters began touching V.R.'s legs and chest with his hands. Even though V.R. told him to stop and tried to push him away, he would not stop. T.234. Wynters pushed V.R. down on the couch and tried to kiss her. During this time, V.R. was crying and pleading with Wynters to stop. T.235. She continued to try to push Wynters off of her but she could not "[b]ecause he was bigger" than she. Id. Wynters then pulled off his sweatpants and, still holding V.R. down, removed her pants. T.235-36. Wynters then forcibly raped V.R. by inserting his penis into her vagina. V.R. continued to try to resist Wynters but her efforts were to no avail. T.236.
After he raped her, Wynters got off the couch and went into the bathroom. V.R. put her pants on and started to leave but Wynters stopped her and told her to wait for him. T.237. She stated that she complied because she was scared of him. Id. Wynters told her to come outside with him and to get into his car, which she did. Wynters then drove her to school. As she was exiting the car, Wynters "grabbed [her] leg" and threatened to kill her if she told anyone about the rape. T.239. At trial, V.R. identified Wynters as the person she knew as "Anthony" and stated that he was the rapist. T.225.
A year passed before V.R. reported the rape to anyone. She explained at trial that she was scared and embarrassed, and believed that people would think it was her fault that she was raped because she had gone with Wynters in his car. T.241. She stated that she was afraid that she would get into trouble because her parents had a rule that she was not to get into cars with people she did not know. T.241. V.R. testified that after the rape she had become depressed, was having nightmares, had gained weight and began doing very poorly in school. T.240-41. V.R.'s mother noticed a dramatic change in V.R. at the time, but was unable to determine the cause. T.196-98.
During the spring of 1999, V.R. saw Wynters again while she was waiting at a bus stop. Wynters was driving his red Dodge Neon. T242. V.R. testified that seeing Wynters made her have thoughts of committing suicide. T.242-43. On May 30, 1999, V.R. went, on her own, to the emergency room at Genesee Hospital for help. T.199, 243. While there, she was seen by Jay Travers ("Travers"), a social worker who was the psychiatric assignment officer for the emergency department. When she was asked if she had been raped or molested, she replied that she had been. T.244.
Travers testified that he was specially trained in dealing with victims of sexual assaults; at the time he saw V.R., he had worked with hundreds of such victims. Travers observed that V.R.. was withdrawn and showed signs of depression. After speaking with V.R. for a while, V.R. eventually revealed that she was depressed because she had been raped. T.206-12. Travers testified that V.R.'s self-blame was typical in persons who are raped by someone they know.
After disclosing the rape to Travers, V.R. told her mother about the rape, and the police began investigating the claim. V.R. told the police a version of events that differed somewhat from the description of the rape set forth above. V.R. explained on direct examination that she told the police that one day after school she "was going to meet Maria and that's when [she] got raped. Her mom's boyfriend*fn4 raped [her]." T.245, 259. V.R. testified that she believed that Wynters (i.e., Anthony) was Maria's "mom's friend." T.246. V.R. testified that she lied about the way she got to the place that she was raped because she did not want to get in trouble for going to Wynters' house or getting in the car with him. T.247, 248. V.R. told the police that she was supposed to be meeting Maria at Wynters house*fn5 but that when V.R. arrived, Maria was not there. Id. V.R. told the police that once she was inside, "Anthony raped [her]." Id. V.R. testified that her description to the police of the actual rape was true. T.248. V.R. also admitted that she told grand jury that she was going to Wynters' house to meet Maria. T.249. V.R. explained that when she was talking to the assistant district attorney about the upcoming trial, the prosecutor had asked her to think of anything she might have left out. According to V.R., that question made her decide to tell the truth about the way she had gotten to Wynters' apartment. T.250, T.271-72.
On cross-examination, defense counsel elicited testimony from V.R. that she had a friend named Vernon who apparently had given a statement to the police. V.R. admitted that what she told Vernon was different from what she told the police and the grand jury, and how she testified at trial. T.253. When asked whether what she told Vernon was true or not, V.R. stated that it was a dream, that she "told him [she] had a dream" about being raped. Id., T.270-71. T.270-71. On re-direct, V.R. clarified that she had, in fact , had a nightmare about being raped the night before the conversation with Vernon. When she told Vernon that, he asked her "had [she] been raped for real." T.274. V.R. replied, "yes." Vernon asked her if she was going to tell her parents; she replied that she was not. Id.
Defense counsel cross-examined V.R. about her statements to the police and the grand jury in which she said that the rape happened at her friend Maria's house; she initially said that "Maria's mom's boyfriend let [her] into the house" and then raped her. T.259. V.R. testified that Maria lived on Garson Street but V.R. said that she did not tell the grand jury the address of the house to which she was taken. T.260. On re-direct, V.R. stated that she told the grand jury that she had been raped at a house on Melville Street. T.275.
V.R. admitted on cross-examination that at first she told the police that the rapist told her that if she told anyone about the rape he "would do the same thing to Maria[.]" T.261. V.R. conceded that, by the time of the rape in January 1998, she knew that Maria was no longer living in Rochester. Id.
Earlier, on direct examination, V.R. had testified that Wynters was not wearing a condom. Defense counsel confronted V.R. with her grand jury testimony in which she stated that Wynters had a condom on when he was raping her. T.262. V.R. testified that she recalled giving that answer, but when asked whether he was in fact wearing a condom, she replied that he "might have been." Id. She said that she did not see him put one on. Id.
She admitted on cross-examination that when she went to the hospital to get treatment, she told an "incorrect story" about what had happened; she stated that she did not think that would affect the nature or the quality of the treatment she would get. T.265. Later on in the cross-examination, she stated that she did not tell anyone at the hospital the circumstances about the rape, just that she had been raped. T.270.
Defense counsel closely cross-examined V.R. about the circumstances of how she "decide[d] to change the story" that she was going to tell the court at trial. T.271. V.R. maintained that the prosecutor did not go over any of her other statements (e.g., her grand jury testimony or police statement) with her; rather, the prosecutor "told [her] to think of anything [she] might have left out." T.272.
Investigator Cowley testified that upon his arrest, Wynters waived his rights and agreed to speak with the police. T.291. Wynters denied knowing V.R. and denied having raped anybody.
T.292. Wynters stated that he had lived at 440 Melville Street for the past four and one-half years and that he drove a red Dodge Neon. Id. When asked the name by which people called him, Wynters responded, "Jeff." Id. He then stated that his middle name was Anthony. T.293. At one point, Investigator Cowley showed Wynters a photograph of two females, one of whom was V.R. Wynters pointed to V.R. and said that he had "seen her around on the street." T.294. The interview terminated after Wynters was asked to submit to a polygraph examination and he requested an attorney.
After the investigator's testimony, trial counsel moved to dismiss the indictment on the basis that the complainant's testimony had been so discredited during cross-examination as to be wholly unbelievable and that the indictment itself was obtained by perjured grand jury testimony from the complainant. T.296-97. After a brief recess, the trial court held that even though the witness had testified differently as to some issues in the grand jury, it did not "rise[ ] to the level that would require a dismissal of the indictment." Rather, it was an "issue of credibility that the jury can utilize in determining the weight and believability of witness' testimony." Id.
Defense counsel called Kathleen Tanea ("Tanea"), the landlord who had rented an apartment on Vermont Street to Yelta Hucks and Anthony Kimbrew until March 16, 1998.
T.309. Tanea testified that she never saw Wynters at the residence on Vermont Street rented by Hucks and Kimbrew. T.311. She conceded on cross-examination that she did not live in the same neighborhood as the rental property and although she went to the house to mow the lawn and make some repairs, she did not know everyone who came to the house. T.313.
The jury returned a verdict convicting Wynters on one count of first degree rape as charged in the indictment. Wynters was sentenced as a second felony offender on July 19, 2000, to a determinate term of twenty years in prison followed by five-years post-release supervision.
Represented by new counsel on appeal, Wynters sought review of his conviction in the Appellate Division, Fourth Department, of New York State Supreme Court. Appellate counsel argued that the prosecutor committed misconduct by eliciting testimony that Wynters had invoked his right to counsel during the police interrogation and refused to take a polygraph examination. Appellate counsel also contended that trial counsel was ineffective in failing to register an objection to this prosecutorial misconduct during trial. The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed the ...