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Reid v. Giambruno

October 31, 2007

SEAN REID, PETITIONER,
v.
MICHAEL GIAMBRUNO, SUPERINTENDENT, WYOMING CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Introduction

Sean Reid ("Reid" or "petitioner"), proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Court on one count of first degree rape and one count of first degree sexual abuse. The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

II. Factual Background and Procedural History

Reid was indicted on one count of first degree rape, one count of first degree sodomy, and one count of sexual abuse based on his allegedly forcing his ex-girlfriend Barbara Bolden ("Bolden" or "the victim") to engage in sexual contact with him on February 3, 1997. The defense theory of the case was the sexual activity that occurred between Reid and Bolden was consensual, and that Bolden had fabricated the charges of sexual assault in an attempt to punish Reid for becoming engaged to be married to another woman. Trial counsel, in his opening statement, stated that Reid and Bolden had an on-again, off-again relationship for about five years, and that "the constant thread through th[e] entire relationship was sex;" "[t]hey enjoyed each other." R.86.*fn1 Trial counsel argued to the jury to "look at what type of sexual relationship" Reid and the victim "had over the years and whether it's calm, soft and loving or more rough and tumble enjoyment." R.87. Trial counsel conceded that there was sex but argued that even the fact that the prosecution was based on "forcible compulsion" did not establish that there was rape because Reid's consensual sexual practices with Bolden had an element of forcefulness. See R.86-87.

Bolden testified first for the prosecution that she had known Reid for about six years and had been engaged at one time; they had broken up in July 1996, one month before their son, Christopher, was born. R.93-94.Reid saw his son about every other week; Bolden stated that she and Reid had no custody disputes regarding their son. R.95-96.

On the afternoon of Sunday, February 2, 1997, Reid called and said that he "wanted to come see [their son]." R.96. Bolden explained that she was not dressed and asked for about an hour before he came over, Reid "got upset" and said that "he can see that I am still on that shit," "[m]eaning that he couldn't just stop in to see Chris whenever he felt like it." R.97. Reid called back and apologized and said that he "really needed to see" their son. R.97. Bolden said they "still weren't dressed" and Reid said "forget it." R.97. Reid did not come over at all that day. On Monday, February 3, 1997, Bolden had a qualification interview and test with the Private Industry Counsel at 11:30 a.m. R.97. Bolden testified that she had gotten her hair done the previous day and was aware that there was a dress code for the interview. R.100. After getting her two older children out to catch the school bus, she had planned to leave Christopher with her cousin, Monica Green ("Green") while she when to the interview. R.99. However, Bolden's son missed his bus and she was forced to put on a sweatsuit over her pajamas and drive him to school, returning home at about 9:50 a.m. R.101-02.

Bolden testified that as soon as she entered her home, the telephone rang; it was Reid, and he wanted to come by to see the baby. R.103. Bolden said that she "had something to do and he would have to do it later." R.103. According to Bolden, Reid responded the same way he had the following day; he hung up and said that he would call back. R.103. Shortly thereafter, Reid called back on his cellphone and said, "Open the door. I am here." R.104. Bolden allowed Reid to come in; he started taking his coat off and she handed the baby to him. R.105. Bolden testified that Reid asked her for a kiss but she declined. R.106. Bolden then went into her dining room; she could hear Reid talking to the baby.

Reid came into the dining room and asked her for a "kiss again and a hug at least." R.108. Bolden recalled that Reid "came closer to" her but did not touch her. She told him "to step back and that, no, he could not have a kiss." R.108.

Bolden related that Reid then walked into her bedroom and began "pulling things off the dresser and looking at pieces of paper and tearing them up." R.110. The pieces of paper had "little notes" to herself and phone numbers." R.110. Reid said "he couldn't believe that [she] was giving away his stuff," which she interpreted him to mean giving herself away, "[l]ike [she] belonged to him." R.110-11. According to Bolden, Reid's mood had changed from "calm, glad to see [his son]" to "[i]rritated." R.111. Bolden then informed Reid several times that he "had to go." R.112.

Bolden testified that Reid "kept asking for a kiss," which she refused to give him, and tried to hug her. R.112. According to Bolden, Reid "said he wanted to kiss [her] pussy" and but she said no. R.113. During this time, Reid had her in a "bear hug" and was kissing her. R.113. Reid weighed about 190 pounds; she weighed about 145 pounds.

Bolden recalled that when she bent her knees in an attempt to get out from under him, Reid's weight came down on top of her and they ended up on the bed. R.115. Reid started kissing her neck and sucking on her chest, and telling her that he knew she "wanted it." R.116-17. Reid testified that she was "[c]onstantly telling him to get off" of her. R.116. Reid then twisted her arm, which forced her onto her stomach; she "could feel his penis on [her] backside," namely, in her anal area. R.117-18. At that point, her pants were down. Id. Bolden, feeling pressure by his penis, told Reid, "please don't." R.119. Reid again said that he "wanted to lick [her] pussy" and Bolden refused. R.119.

Eventually, Bolden struggled away off the bed and backed up to the wall, trying to stand up. R.120. Reid pulled her back and she ended up on the floor. Bolden testified that Reid was trying to get his head between her legs, so she crossed her legs and "[h]ollered at him" to get away from her to no avail. R.121. Reid put her legs up in the air and she could feel his penis penetrate her vagina. R.122. Bolden testified that it felt "rough" and that it hurt. R.122. Bolden told Reid to stop, but Reid said that he wanted her to "give it to him" and "cooperate." R.123.

After he ejaculated, Reid removed his penis from Bolden's vagina, stood up, fixed his pants, and started throwing money on the bed "for [her] to get [her] hair fixed[.]" R.123. Reid then left her house. Bolden testified that he was upset and crying and had pain in her vaginal area. Soon after, she testified, Reid called and said that he "couldn't believe she didn't want it."

R.125.

Bolden took her son to her stepfather's house so he could baby-sit after she was unable to reach her cousin, who originally was going to baby-sit for her. R.127. Bolden testified that she went late to her interview and test, even though she was dressed inappropriately in her sweatsuit.

R.129-30. Salina Mayes ("Mayes"), a colleague of hers at the Private Industry Counsel, testified that she noticed that Bolden's face was red as if she had been crying. R.262. When Mayes asked what was wrong, Bolden told her that Reid "had forced himself" on her. R.262, see also R.131.

Bolden testified that she did not attempt to report what had happened because she "had no faith in the system" and felt like she and her family "could handle it." R.131. The next day, she went to the hospital because she was still having pain in her vaginal area. R.132. Bolden testified that she never had felt pain like that from previous sexual encounters with Reid. R.132. Hospital personnel subsequently contacted the police regarding her situation. R.132-33. Bolden identified photographs of bruises on her chest as marks resulting from Reid "sucking on her." R.134-36.

On cross-examination, defense counsel elicited from Bolden that over the course of her relationship with Reid, they had sexual intercourse "probably hundreds of times"; she acknowledged that he was the father of her child. Bolden admitted that there were times when Reid would give her a "hickey" or "passion marks" on parts of her body. R.290-91. When asked if Reid in the past had been "forceful in his penetration" of Bolden, she said yes, but stated that it was "[n]ot to the point where [she] would have been hurt." R.291. Bolden admitted that she was "sexually aggressive in the bed" with Reid and that they would "get caught up in [their[ passions." R.302-03. Bolden stated that "[t]hat was part of part of [their] relationship." R.303.

Bolden testified on cross-examination that on "numerous" occasions, she and Reid broke up and later reunited. R.292. At one time, Bolden stated, Reid gave her an engagement ring and she anticipated that they were going to get married. R.292. They soon broke up but got back together; Bolden was still hoping that the two of them would get married. R.293. Bolden testified to about two more break-ups following the engagement; the final break-up occurred in July 1996, when Reid "had disappeared for a day and [they] just broke up." R.294. Bolden admitted that the "last straw" came when she found out that he had continued to date another woman, whom he ultimately ended up marrying. R.294. Bolden conceded that she knew about the other relationship but stated that Reid had told her that "it was over." R.294. When they broke up in July 1996, Bolden admitted that she had an altercation with this woman, who had accompanied Reid to Bolden's house when Reid went to pick up his belongings. R.296.

Defense counsel attempted to have Bolden admit that on the day of the incident, she was not going to let Reid "have his way" to come over to see his son, even if she were available.

R.304. Defense counsel asked Bolden whether, after she had sex with Reid on February 3, 1997, she was left "absolutely desolated" because he did not want to get back together with her. R.306. Bolden admitted that Reid left some money to buy something for herself and the baby but contended that he "threw" it on the bed. R.306. Bolden denied that she was hoping that she and Reid would get back together as a result of having sex on the day of the incident. R.306.

As a defense witness, counsel called Reid's aunt, Margaret Anne Edwards ("Edwards"), who testified that she had known Bolden closely for about four or five years. R.315. On the night of Reid's break-up with Bolden in July 1996, Bolden called her and said that Reid's new girlfriend, Jodie Bell ("Bell") was coming over to her house and that she and the woman "were going to get into a fight." R.316. At that time, Bolden was about eight months pregnant. When Reid arrived to pick up his things from Bolden's house, Bell was in the car. R.317. Bolden grabbed a baseball bat and headed toward the car. R.317. Edwards attempted to stop her, saying, "[Y]ou're going to hurt the baby." R.317. Bolden said that she "didn't care because he didn't want the baby anyway." R.317. Edwards approached Bell who told her (Edwards) to "get out of [her] face." R.318. At that point, Edwards and Bell "got into a scuffle." R.318. The incident then ended and Reid and Bell left. R.318. The next day, Edwards testified, Bolden said that after she gave birth to the baby, "she was going to get back at [Reid] for bringing [his new girlfriend] to her house." R.319.

Timothy Clemons ("Clemons"), Bolden's step-father, testified that on the day of the incident, he babysat unexpectedly for Bolden's son. When Bolden arrived, Clemons testified, her hair was "messed up" and she appeared to have been crying. R.223. In response to Clemons' inquiry as to what was wrong, Bolden replied that Reid "took advantage of her." R.224. Clemons recounted that Reid later telephoned him and said, "I don't know what is going on, but I ain't [sic] no raper [sic]." R.225.

The prosecution called Dr. Joseph Valenti ("Dr. Valenti") to present medical testimony regarding his examination of Bolden in the emergency room. Dr. Valenti testified that Bolden presented as "sad and calm." R.149. He noticed an area of "bruising on the right shoulder" and "areas of bruising across the chest area." R.149. During the pelvic exam, Dr. Valenti observed "an area of excoriation or roughened, reddened area over the area between the vagina and anus."

R.149. Dr. Valenti testified that, to a "reasonable degree of medical certainty," the excoriation he observed was "consistent with forced intercourse." R.150. The prosecutor asked Dr. Valenti if he had an opinion "within a reasonable degree of certainty as to what it would have felt like to" the victim "to have that happen to her[.]" R.150. Dr. Valenti testified, "I think it would have been horribly, both physically and emotionally, traumatic." Defense counsel did not object to this testimony. Dr. Valenti testified that the excoriation was "consistent with something rubbing that area over a period of time." R.151.

On cross-examination, Dr. Valenti admitted that he was aware of medical conditions in which individuals will "self-abuse" themselves and was aware of the condition of "people who become sexually sadomasochistic." R.152. Dr. Valenti acknowledged that "people who enjoy as part of their sexual activity [sic] pain being caused to them or by them" "could exist." R.152. Dr. Valenti acknowledged that when Bolden was examined at the hospital prior to his gynecological exam, her emotional condition was described as stable. R.153-54. He did not find any bruises on the victim's arms, even though there was an allegation that her arms had been restrained. R.154-55. Dr. Valenti acknowledged that the victim's clothing was neat and not disheveled. R.156. Dr. Valenti did not recall whether the victim had informed him about her blood disorder which caused her to bruise easily, and he admitted that a person would bruise more easily if they had a low platelet count. R.156-57. Dr. Valenti admitted that the bruises on the victim's chest area could be consistent with a "passion kiss or passion mark." R.158. Dr. Valenti testified that he did not find any bruising on the victim's buttocks area. R.160.

Petitioner Reid testified in his behalf that he had served in the Marines for four years and achieved the rank of Lance Corporal. R.330. At the time of trial, he was working full-time as a delivery person for Consolidated Deliveries and Logistics. R.330. He admitted to having one previous conviction for an unspecified felony. R.330.

Reid testified that he first started dating Bolden in August 1991 and that they resided together for a couple of years during that time. R.331. Reid stated that he and Bolden never had a monogamous relationship, and that Bolden was aware that he saw other women. R.332. Reid testified that they broke up about five or six times during the course of their relationship because Bolden would become "very upset" that he also was dating other women and would "curse at [him]." R.332-33. When they would get back together, Reid would go visit her and they would have sex. R.333. Reid testified that even when they were not dating, Bolden continued to engage in sexual activity with him. R.333-34. Reid testified that he and Bolden had a "normal, healthy" and "passionate" sex life. R.334-35.

Reid related that they broke up in July 1996 when Bolden discovered that he was seeing Bell and engaged to be married to her. R.336. With regard to the incident in July 1996, when he went to get his belongings from Bolden's house following the break-up, Reid testified that Bolden grabbed a baseball bat and tried to "bust out the back window" of his car where his fiancee, Bell, was sitting. R.338. Reid testified that Edwards, his aunt, and Bell then "got into a confrontation." R.338.

Reid testified that from the time his son was born in August 1996 until the time of trial, he would see Bolden a couple of times a month at her ...


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