The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se petitioner Catalino Arce has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered January 9, 1997, in County Court, Niagara County, convicting him, after a jury trial, of six counts of Sexual Abuse in the First Degree, five counts of Sodomy in the First Degree, three counts of Menacing in the Second Degree, and three counts of Endangering the Welfare of a Child.
For the reasons stated below, the petition is denied.
II. Factual Background and Procedural History
On April 26, 1996, Petitioner was arraigned on indictment no. 95-418, charging him with seven counts of Sexual Abuse in the First Degree, six counts of Sodomy in the First Degree, one count of Sodomy in the Second Degree, three counts of Menacing in the Second Degree, and three counts of Endangering the Welfare of a Child. The charges involved allegations by Petitioner's children.
On or before August 19, 1996, the trial court had dismissed the fifteenth and sixteenth counts of the indictment (relating to Petitioner's son Joshua Arce), with leave for the People to re-present said counts to the Grand Jury. On August 19, 1996, the People announced in court its intention to re-present the entire case with new information that had been developed with respect to the dates of the alleged incidents.
On October 2, 1996, Petitioner was arraigned on indictment no. 95-418A, which superseded*fn1 the original indictment no. 95-418.
On November 21, 1996, a Huntley hearing*fn2 was held, at which time the People offered the testimony of Niagara Falls Police Detective Donner. Donner testified that, on April 10, 1996, he and Detective Brooks were involved in questioning Petitioner at his house on 2222 21st Street in Niagara Falls. Hearing Minutes [H.M.] 25. The two officers brought Petitioner back to the police station, and advised him of his Miranda warnings. H.M. 28. According to Donner, Brooks advised Petitioner of the allegations made against him and that they concerned his three children, Joshua, Elliott, and Cameo. H.M. 30. Petitioner responded that "the kids were his children, were basically good children and that they don't tell extravagant lies and that -- when they did not tell the truth it was like lies that kids use most of the time, kid lies." H.M. 30. According to Donner, when Brooks confronted Petitioner with the allegations, Petitioner stated that the officers "would have to prove it in court . . . and that [the children] were lying." H.M. 31.
On December 2-4, 1996, a jury trial was held. At trial, Petitioner moved to admit the Grand Jury testimony of Dolores Warren. Warren had testified at the Grand Jury that David Marsh, the boyfriend of the sister of the victims, had called her and told her that he had put the children up to lying about the allegations of sexual abuse. Trial Transcript [T.T.] 611. Petitioner's attorney told the court that he had sought to have Warren served with a subpoena on two separate occasions and that the servers had been unable to locate her. T.T. 605-06. Warren testified in the Grand Jury that she had taped the conversation, but that the tape had been erased. T.T. 613. The court excluded the Grand Jury testimony of Warren because the Petitioner failed to make the requisite showing that her testimony bore sufficient indicia of reliability.
Also at trial, during an offer of proof outside the presence of the jury, Elliott Arce, eleven years old at the time of the testimony, testified that, at a time when he lived at his mother's home, he was at his father's apartment and his father chased him out of the apartment with a knife. T.T. 344. Elliott also indicated that, on one particular occasion after the knife incident, he had spent the night at his father's apartment, and his father "molested" him. T.T. 345. The trial court ruled that the People would be able to offer proof of the knife incident because the alleged knife event preceded at least one act where forcible compulsion was an element of the crime charged. T.T. 351.
Elliott also testified that, on the last occasion that he stayed at his father's apartment, his father had touched his "butt" and "penis", and that his father had "put his penis up [his] butt." T.T. 364. Elliott testified that his father told him he would kill him if he told anyone, and that his father was holding a knife when he said this to him. T.T. 364-65. Elliott further testified that his father made him touch the father's penis. T.T. 365. Elliott also testified as to a similar incident, which occurred at his father's apartment in December, in which his father "stuck his penis up [Elliott's] butt" and threatened to kill Elliott if he told anyone. T.T. 367.
Joshua Arce, fourteen years old at the time of his trial testimony, testified that, around Christmas 1994, he, along with his sister and brother, was living with his mother. T.T. 455. In the month before Christmas, Joshua testified he was staying with his father when his father made him "suck on his thing and kiss him", and touched Joshua on his chest area while holding a knife and threatening to kill him. T.T. 460.
Tenille Pelfrey, Joshua, Elliott and Cameo Arce's sister, testified that, in January of 1995, she saw the Petitioner chase Elliott with a knife. T.T. 485. David Marsh, Pelfrey's boyfriend, also testified about his recollection of the knife incident in which the Petitioner went after Elliott with a knife. T.T. 513.
The jury found Petitioner guilty of seven counts of Sexual Abuse in the First Degree, five counts of Sodomy in the First Degree, one count of Sodomy in the Second Degree, three counts of Menacing in the Second Degree, and three counts of Endangering the Welfare of a Child, and he was sentenced to a total of thirty-two to ninety-six years of imprisonment.
The New York State Supreme Court, Appellate Division, Fourth Department unanimously affirmed the conviction on October 2, 2003. People v. Arce, 309 A.D.2d 1191 (4th Dept 2003). The New York Court of Appeals denied leave to appeal on December 29, 2003. People v. Arce, 1 N.Y.3d 567 (2003). Petitioner filed no motions for collateral relief in state court. This habeas petition followed.
Three of Petitioner's claims appear to be fully exhausted and properly before this court. See 28 U.S.C. § 2254(b)(1)(A). Petitioner's remaining claim -- which he failed to apprise the state courts of -- is deemed exhausted but procedurally defaulted. § ...