The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
Pro se petitioner Quanaparker Howard ("Howard" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Court, following a jury trial, on two counts first degree assault, one count of second degree assault, one count of first degree unlawful imprisonment, and one count of endangering the welfare of a child. 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
On August 11, 1998, Buffalo Police Officer Anthony Marshall, went to 313 Hempstead in Buffalo, to investigate a report of child abuse that had been made to Child Protective Services.
T.185.*fn1 That apartment was rented by Tiffany McCann ("McCann"), who was petitioner's girlfriend. T.204. Through the open doorway, the officer saw an emaciated child, Mikel McCann, who appeared to be about three or four years old. T.183, 85. Officer Marshall entered the house and discovered, in an upstairs bedroom whose door had been taped shut from the outside, T.186 . Officer Marshall removed the tape and entered the room where he found a nine-year-old boy, Keith McCann. The room was essentially empty save for a bed without any sheets on it and a red plastic baseball bat lying on the bed. T.192. Keith was naked and tied up in the closet with electrical cord, with his hands outstretched in a "crucifix" position: One arm was tied to the bedframe, and the bedframe was secured to the radiator with coaxial cable and speaker wire; and his other arm was tied to the metal clothes-pole in the closet with electrical cord.
T.187. Keith's hands were covered with socks, and electrical cord was wrapped around his wrists over the socks. His legs were tightly tied together with electrical cord wrapped all the way from his knees up to his waist. Id. There was a pillowcase over his head, secured by a sock around his neck. Id. He appeared to have been "whipped and beaten"-- his body was covered with marks and cuts, from his head to his feet; some of the wounds were old and some were fresh. The officer observed that Keith appeared to "have a split across his penis," which was reddened, swollen and raw. T.196, 199, 301-05.
At first, Officer Marshall did not think the boy was alive because he was not moving.
T.188. When he and removed the pillowcase from the boy's head, the officer saw that there was electrical duct tape wrapped all the way around Keith's face from his nose down to his chin.
T.188-89. Underneath the tape, a sock had been wadded and stuffed into the child's mouth and was soaked with saliva. T.189, 191. The officer untied Keith and brought him over to the bed where he untied the cord and peeled off the electrical tape. When Officer Marshall asked the boy who did this to him, Keith said that "his mom." T.195. Keith was taken to the emergency room at Children's Hospital where he was treated for his injuries. At the hospital, Keith also stated, "Quan (i.e., petitioner) beat me with a red plastic baseball bat."
McCann was arrested that night when she arrived home from work a short time after the police arrived. Petitioner was arrested on two days later as he was driving his vehicle by McCann's apartment. T.205. He waived his rights and gave a statement to the police admitting his knowledge of, and participation in, the abuse of McCann's son. Following at the pre-trial suppression hearing, the statement was held to be voluntary and admissible. Prior to his joint trial with McCann, Howard's statement was redacted to remove references to McCann. In the part that was read into the record, petitioner admitted to hitting Keith on several occasions.
1. The Prosecution's Case
At trial, Keith testified to an escalating pattern of abuse at the hands of his mother and then subsequently by both his mother and petitioner, whom he called "Quan." See T.100 et seq. In the summer of 1997, McCann "started whooping [him]" with an extension cord and a belt when she would learn that he had misbehaved at school or he "would bring home a bad report" or would eat food that was off-limits to him. T.102, 131, 141. Keith stated that petitioner did hit him, but "in the first beginning [sic] Quan wouldn't whoop [him]." T.102-03. Sometimes he would be wearing clothes but other times his mother beat him while he was naked. Id.
Eventually, in the summer of 1998, his mother started tying him up in the basement, her bedroom, or his bedroom, using a telephone cord or a speaker cord. T.103. He would be naked and McCann would bind his hands and feet and then "whoop" him with "[t]he bat" on his legs and his back. T.104, 106. Keith testified that Quan also hit him with the baseball bat and when he was tied up in the basement, petitioner "had whoop [sic] [him] with the extension cord," as well. T.105; see also T.143-44. He was not given anything to eat, and when he had to go to the bathroom he "had to go on [him]self." T.106-07. Keith stated that with regard to this first incident, he was tied up "[a] long time"--he "was standing up overnight" and "in the morning [petitioner] untied the ropes" and Keith went back to his room. T.147-48.
Keith also described the incident that culminated in the police discovering him on August 11, 1998. ("I was tied up again, but I wasn't -- I wasn't going to get loose until five days, but that's when the police came, found me. . . . It was only two [nights] because that night the police found me."). Again, he was naked, deprived of food, and told to urinate on himself. At first, Keith was bound in his mother's bedroom in the same manner as he had been in the basement, with electrical cords and cables. T.107. On direct, his testimony was that his mother tied him up, and he thought that petitioner participated in tying his wrists together. T.150, 151. He estimated that he was tied up in his mother's room for "[a] while," that is, "more than a day[.]" T.109. McCann hit him with an extension cord and "[t]hat plastic bat." She also threw a plastic hairbrush at his head "'cause [he] was moving around" and his arms "came down." T.111, 161. McCann told him "[t]o put them back up." T.111. After the brush hit his head, it "hit the wall real hard and it cracked," and his mother was not happy about it. T.110.
After a while, his mother moved him out of her room in the afternoon because she had to go to work, and tied him up again in his bedroom. T.112-15, 154-55. He was still naked. His mother then "stuffed" a sock "all the way down [his] mouth." T.116. "Quan had came [sic] home" and "bought some . . . black tape" which he put "around [Keith's] mouth." T.116, 157-58.
McCann then pulled a pillowcase over the boy's head. T.117. Keith testified that he knew that "Quan had hit [him]" and his mother had hit him, "but when the pillow case was over [his] head [he] wasn't sure" who was hitting him. T.118. His mother and petitioner beat him with the bat and the extension cord "[a] lot" both before and after the pillowcase was put on his head; he was "not sure how many" times." T.118. He would twist to try to get away from the blows which landed all over his body--to his back, his legs, his arms, and his stomach. T.119. Keith pointed out a scar on his wrist from being tied up, and scars on his left upper arm from being hit with the extension cord by his mother and petitioner. T.120-21, 123-25. He also testified that he has scars on his legs from where he was whipped with the extension cord. T.127.
When Keith arrived at the hospital, the examining doctor found "a lot of soft tissue injuries," as well as a swollen lip and a swollen right hand; crush marks on both wrists, resulting from a constriction or strangulation of the wrist; numerous cuts on his chest, back, and buttocks; a swollen penis with some blood at the end of it; and air under the skin on the right chest and shoulder. T.401-05. The x-ray showed a 10% collapsed lung (pneumothorax), and the CAT scan showed injuries to his internal organs: his liver had a lot of fluid in it (periportal edema), which is usually caused by a blunt injury. T.403. The duodenum, which connects the stomach to the small intestine, was bruised (hematoma), again suggestive of a blunt injury. Id. His liver function blood tests were indicative of injury; he had blood in his urine, again suggestive of blunt force injury to the kidneys. T.404, 407. The levels of CPC enzyme in his muscles was very high; usually it is about 200 and Keith's was 12,000. This indicates "lots of injuries to the muscles" by "[b]lunt forces or crushing forces." T.404. The internal injuries occurred within the past two to four days; most of the lacerations and bruises on his body were recent as well. T.405. Keith weighed only 53 pounds, which put him in the 10th percentile on children's growth charts. T.409.
On cross-examination, the doctor conceded that when the child arrived at the emergency room, none of his injuries appeared to be life-threatening. T.444-45. The doctor testified that had Keith been left unattended and not permitted to have food or water "for a continued amount of time, his dehydration would have gotten worse," and eventually he would have died from dehydration. T.410, 415. The issue of the dehydration was "probably the most pertinent," in the doctor's opinion, because that can lead to hypobulimic shock, loss of consciousness, and, ultimately, death. T.414-15. Had Keith's wrists remained constricted, the consistent compressing force would have stopped arterial blood supply into the hand; eventually, the doctor testified, the hand "would die." T.406. Given the depth of the cuts and lacerations on his bodies, the doctor expected the scarring from them to be "probably permanent." T.411. According to Dr. Caty, all of the internal injuries sustained by the victim were ones from which he would recover. T.413. The doctor opined that as long as the pneumothorax (collapsed lung) did not collapse further, child "probably would have been okay . . . ." T.411. However, the doctor had never seen a pneumothorax occur spontaneously in a child. T.464.
The type of force necessary to inflict the lung and duodenal injuries suffered by the victim would be such things as a high-speed car accident or falling from a height of over two stories, for instance. T.462. The doctor opined that the injuries could have been caused by striking the child with a solid object, such as the red plastic baseball bat, if it were swung hard enough.
Several of McCann's neighbors at 313 Hempstead testified to overhearing her and petitioner abusing Keith. Judy Garrison, who lived at 315 Hempstead, next door to McCann, testified that Howard used to stay overnight with McCann at the apartment. T.360, 381. At about 2 a.m. on the morning of August 11th, Garrison "heard a child screaming," She put her ear to the common wall between the apartments and realized that it was coming from McCann's apartment. The child said, "[P]lease, mommy, don't tie me up." T.362. She then heard McCann laugh.
T.362, 372 Garrison "heard a hit" and then "heard him scream again." T.362. The boy "hollered" for "[a]bout fifteen or twenty minutes." T.372. After Garrison slammed the closet door to alert McCann that she had heard her, McCann "started running water 'cause I couldn't quite hear what her [sic] and Quan was [sic] saying after that." T.362-63, 377. Garrison knew Howard was there because she had seen his car parked outside before she went to bed and heard him when he came in. T.363. She also heard his voice through the wall; this was after she heard Keith begging not to be tied up. T.363, 368. She could not hear what petitioner was saying, however. That afternoon, Garrison called Child Protective Services to report her suspicions that Keith was being abused. T.364, 366.
Toni Foxworth, another one of McCann's neighbors at 313 Hempstead, testified that petitioner lived there with McCann and her two sons. T.468-69. Like Garrison, Foxworth's apartment shared a wall with McCann's. The night before the police came, she was woken up by "Keith crying, screaming . . . please don't tie me up again mommy, please don't tie me up again," to which McCann responded by laughing. T.470. Foxworth did not do anything at the time, and went back to sleep. T.470. The next day, Foxworth called child protective services.
Twenty-four-year-old Tiffany McCann, the victim's mother, testified that she came from a sexually and physically abusive background and was placed in foster care where, at age 14, she had Keith as a result of being molested by her mother's boyfriend. Initially, Keith was living with McCann's mother, but McCann obtained custody of him in June or July 1997 after a court battle. She admitted to disciplining the boy with belts, at first, and then with extension cord. She "started off by whooping him with a belt" with his pants down in late 1997 or early 1998 for being suspended from school; she claimed that petitioner also would spank him with a belt. She admitted that, on August 10, 1998, Keith was tied up for hitting her younger son, Mikel's, head against a wall. T.582. McCann blamed petitioner for tying up Keith on the first occasion, claiming that she did not observe petitioner do it but instead found the child tied to a rail in the basement when she came home from work. T.580-82, 604. Later, on cross-examination, McCann claimed that when she came home on August 10, 1998, she found Keith tied up in her bedroom. She did not untie him immediately.
McCann admitted that she tied up Keith "once" and "whooped" him; this was on August 11, 1998, at about 2:30 p.m., before she left for work that day. She claimed that she did this because, at about 7:30 a.m. that morning, she had caught Keith touching his younger brother in a sexual manner. T.583. She was "very shocked" and then "went into the room and grabbed the first thing [she] saw and that was the extension cord" and then she went back into the room and "whooped" Keith, who already had his clothes off, about four or five times "[o]nly on his butt."
T.583-84, 604, 639. She later admitted that she went down to the basement to get the multiple lengths of cable wire, cable cords, speaker wire, telephone cord, and shoelaces depicted in the photographs of the bedroom where Keith was found. She admitted that she used all of them to tie her son up to the bed, the closet pole, and radiator in the manner in which the police found him.
T.620-24, 641. She claimed that she tied Keith up before she went to work because she "was afraid of Mikel getting hurt by" him. T.643, 655.
She also alluded to another incident in which she claimed that Keith had been tied up by petitioner in the basement, purportedly because he had been feeding Mikel food scraps out of the garbage can. T.604. She claimed that this occurred while she was upstairs in the house and she did not go downstairs to the basement since she had already disciplined Keith for this incident by beating him with an extension cord. T.605.
On cross-examination, McCann viewed photographs of her son taken at the time he was taken to the hospital. Although she "whooped" her son with an extension cord, she denied causing any of the wounds depicted in the photographs and claimed that all of the boy's lacerations and scars were caused by petitioner. T.618-19, 640, 659. McCann testified that she never used the plastic bat against Keith but that she observed petitioner "tap" the child on the upper chest with the plastic bat. However, she described the blow as "not forceful." T.581, 617.
T.581, 617. McCann claimed that she never wanted to hurt her son but was just attempting to discipline him, stating that she herself had been "whooped" as a child. T.632.
Officer Torre, who participated in interrogating petitioner, read into the record the following portion of the written statement petitioner gave on the night of his arrest:
Q: Did you ever hit Keith?
A: The first time I whooped [sic] Keith it was over sneaking food. It was about two weeks ago. I took him in the basement and made him pull his pants down and hit him about five times with my hand. The second time was about four days later. It was in his room and I whooped him with a belt on his bare butt. And just the other day it was in the basement. He was naked. I hit him with an extension cord less than ten times. Later that same day he was naked and I hit him with a red plastic bat on the shoulders about three times.
T.209. Officer Torre conceded that, during the interrogation, petitioner never admitted to ...