The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge
In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings, including entry of judgment, with respect to this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Dkt. #11.
Petitioner, represented by counsel, commenced this action seeking a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his convictions for
(a) attempted rape, first degree, in violation of New York Penal Law § § 110.00 and 130.35 with respect to an incident in June, 1999;
(b) sexual abuse, first degree, in violation of New York Penal Law § 130.65(1) with respect to an incident in June, 1999; and
(c) endangering the welfare of a child, in violation of New York Penal Law § 260.10(1) with respect to conduct occurring in September, 1998 following a jury trial before the Hon. James E. Euken, Allegany County Court. The victim was the petitioner's daughter, Brandy, who was aged 16 at the time of the September, 1998 allegations and 17 at the time of the June, 1999 allegations.
Petitioner alleges ineffective assistance of trial counsel due to counsel's failure to adequately investigate, prepare and present a defense. Specifically, petitioner asserts that trial counsel:
(1) failed to investigate and present evidence with respect to petitioner's medical history;
(2) failed to interview Brandy's boyfriend, Eric Rogacki, who was residing in the house in September, 1998;
(3) failed to interview Brandy's school principal, Barbara Funk;
(4) failed to cross-examine Brandy or present direct evidence that Brandy was neither tardy nor absent from school in September, 1998; and
(5) failed to cross-examine Brandy with respect to discrepancies between her supporting deposition, grand jury testimony and trial testimony.
Dkt. #1. For the following reasons, the petition is conditionally granted.
On September 23, 1999, Brandy provided a supporting deposition to the Allegany County Assistant District Attorney in which she affirmed, inter alia, that
Beginning in ninth grade my father would come into my room in the morning while I was sleeping. He would take off my underwear, feel my breasts and butt and attempt to have sex with me. I always would try to fight him off, yelling, pushing and trying to move out of his reach. He would lay on top of me, rub himself on me and say "You know you want it, you know you'll love it." . . .
My father continued to come into my room in the morning, even after we moved to Rushford. He continued to forcibly take off my underwear, lay on top of me, rubbing himself on top of me and telling me I wanted sex with him. I continued to fight him off. This occurred on a regular basis with the last time being in the first two weeks of June 1999. On that date my father came into my room, forcibly removed my underwear, rubbed my breasts and buttocks, laid on top of me and tried to force me to have sex with him.
Before the grand jury, Brandy provided testimony with respect to two distinct time periods: September, 1998 and June, 1999. Exh. O. With respect to September, 1998, her junior year of high school, Brandy testified that:
A My dad would always hit me and try to get me to have sex with him.
Q: Okay, and where would he come sometimes to do that?
Q: And when would that be?
Q: So he'd come into your bedroom in the morning?
Q: And what were you doing then when he came into your bedroom?
A: Just waking up to get ready for school.
Q: And what did you usually have on when you were sleeping?
A: My pajamas and a pair of underwear.
Q: And when he came into your room, we're talking again now about the beginning of your junior year, September of 1998. Did he ever come into your room then in the mornings?
A: I want to say yes . . .
Q: Let me ask you this. How often would this occur from the time you moved to Rushford in June of 1997 until June of 1999, about how often would this kind of behavior occur?
Q: So in September of 1998 it would have occurred?
Q: So sometime in September of 1998 when you were starting your junior year did he ever come into your bedroom?
Q: And when he did what would he do?
A: He would lay on top of me.
Q: And you said you had pajamas and underwear on, did he do anything with those things?
A: He would take 'em off in the mornings.
Q: Your pajamas and your underwear?
Q: Okay, and how did he do that?
A: Like I'm a sound sleeper, so he would just take my underwear off.
A: When he was laying on top of me.
Q: So he took your underwear off while you were sleeping and then once he laid on top of you you woke up.
Q: And when he laid on top of you what would he have on?
A: Sometimes he'd have his underwear on.
Q: You said sometimes he'd have his underwear on, what about other times?
Q: When he did that what did he do to you?
A: He would tell me that he wants me to have sex with him and that I want it and I would love it.
Q: What did you say to him?
A: To get off me and leave me alone.
Q: When you were saying that what were you doing?
A: Trying to push him off me.
Q: Okay. So he was doing that all the way back . . . when you first moved there in June of '97?
Q: He was still doing it in September of '98?
Q: And it was happening you said how often?
With respect to the June, 1999 charges, petitioner testified before the grand jury as follows:
Q: Now let's talk about did there come a time when you moved out of the house?
Q: . . . Can you recall if during the couple of weeks before you moved out of the house, during that period from the beginning of June until you moved out on June 13th whether your father ever came into your room? On any of those days?
A: One morning before I went to school.
A: He tried to have sex with me again.
Q: And tell me about it, about what time was that?
A: About 6:30, quarter to 7.
Q: Okay, and where in your bedroom were you?
A: Standing near my dresser.
Q: And on that day did he do anything to try to have sex with you?
A: No, he smacked me across my face and then threw me on my bed.
Q: When he threw you on your bed what did he do?
A: He said he wanted to have sex with me.
A: His clothing, pair of pants, that's it, just jeans.
Q: And did he try to lay on top of you or anything like that?
A: He pushed me down on my chest. Well, up here, and I was screaming and then Gloria came up, but she didn't do anything, she told me to get ready for school.
Q: And so he pushed you down on your bed and was holding you down.
Q: Okay. And were you dressed at that time or did you have pajamas on?
A: No, I still had my pajamas on.
Q: You said he slapped you across the face, why did he do that?
A: He came in my room and I told him to get out because I knew what he was going to say and he slapped me. He said he was horny and he wanted to have sex and he slapped me. He threw me on my bed and grabbed me up here and held me down and said he wanted to have sex.
Q: And that's when you screamed and Gloria came in.
The petitioner was indicted on three counts:
1. attempted rape in the first degree in violation of New York Penal Law § 130.35(1) & 110.00 for attempting to have forcible sexual intercourse with Brandy on an unknown date in June, 1999, "by forcibly removing her underwear, then while his penis was exposed forcibly laid on top of her, trying to ...