The opinion of the court was delivered by: John Gleeson, United States District Judge
Jermaine Barnes, incarcerated pursuant to a judgment of the New York State Supreme Court, Queens County, petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Oral argument was held (at which Barnes appeared by telephone) on January 19, 2007. For the reasons set forth below, the petition is denied as untimely and without merit.
On December 16, 1999, Barnes was convicted by a jury of rape in the first degree, N.Y. Penal Law § 130.35, and rape in the second degree, N.Y. Penal Law § 130.30.*fn1 On February 10, 2000, Barnes was sentenced to a determinate term of incarceration of 20 years for the primary conviction, to be served concurrently with an indeterminate term of three and one-half to seven years for the second-degree rape count.
The evidence at trial established that at 8:00 p.m. on February 26, 1998, Barnes grabbed twelve-year-old Errina Smith while she was walking near her house. She resisted by kicking and screaming. Barnes demanded that she be quiet. Barnes dragged her into his nearby house, ordered her to be quiet again, and threatened to hit her with a tricycle.
Taking her to a bedroom, Barnes threw her on the bed and commanded her to take off her clothes. Smith refused. Barnes repeated the command, and Smith removed her sweater and overalls. Smith testified that she asked him not to hurt her. Barnes removed Smith's underwear. He removed his own clothes, climbed on top of Smith while she wept, and repeatedly forced his penis into her vagina. He also kissed her breasts, buttocks, and vagina.
Barnes then got off the bed and wiped his penis with a towel, which he dropped on the floor. He then asked Smith for her name, wrote something in a notebook, and said that if Smith signed her name underneath the writing he would let her go. Smith complied without reading the writing, which turned out to be a "contract" stating that Smith had had consensual sex with Barnes. Smith then left, leaving behind a hair clip and two one-dollar bills.
Smith returned home crying and moaning in pain, and related what had happened to her stepfather. Smith then used the bathroom and Smith's mother called the police. When the police arrived at the home, Smith was still crying and moaning. The officer learned from a radio transmission that a suspect had been apprehended nearby. He drove to the location and approached Barnes, who said, "I am the one you are looking for. I am the one that had sex with the young lady." The police brought Barnes to the rear of the ambulance in which Smith had been placed, and she identified Barnes as her assailant.
A fourth-year resident at St. John's Hospital performed a "rape kit" on Smith. He determined that her hymen appeared intact. However, Dr. Philip Hyden, an expert in child abuse, testifed that the hymen of post-pubertal children is elastic. Hyden concluded that a review of Smith's medical records reflected evidence of trauma to her vagina, indicating forced sexual intercourse.
Barnes gave written and videotaped statements to the police, in which he said he had had consensual sex with Smith. He also consented to a search of his house, where Smith's hair clip, the two one-dollar bills, the signed paper, the towel, and Barnes's bedsheet were seized. The towel contained a stain of blood from Smith next to a stain of semen from Barnes.
Barnes appealed his conviction in June 2001, arguing the prosecutor deprived him of his right to a fair trial by (a) making inflammatory remarks about the victim's lack of sexual experience and humiliation, (b) arguing that defense counsel "fought like heck" to keep from the jury a photo of Smith at the time of the offense conduct, and (c) vouching for Smith's credibility by arguing facts not in evidence. The Appellate Division affirmed. People v. Barnes, 734 N.Y.S.2d 480, 480 (2d Dep't 2001). The court held that the challenges to the remarks in the closing statement were "largely unpreserved" for review and not improper. Id. The court also held the opening statement remarks could not support reversal "in light of the overwhelming evidence of the defendant's guilt." Id.
Leave to appeal to the New York Court of Appeals was denied on March 6, 2002. People v. Barnes, 97 N.Y.2d 251 (2002). A motion for reconsideration was denied on June 14, ...