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Kirkby v. Filion

August 7, 2009

SHANE KIRKBY, PETITIONER,
v.
GARY FILION, SUPERINTENDENT OF COXSACKIE CORRECTIONAL FACILITY, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se petitioner Shane Kirkby ("petitioner" or "Kirkby") has filed a petition for a writ of habeas corpus pursuant to 20 8U. S. C. 2254 alleging that he is being held in state custody in violation of his federal constitutional rights. Kirkby's state custody arises from a judgment of conviction entered against him on June 21, 2000, following a jury trial in New York State Supreme Court (Ontario County).

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

A. The Trial

The judgment of conviction arises from Kirkby's allegedly having sodomized and sexually abused his half-sister's toddler-aged son on two occasions in 1998, when he was a guest at his half-sister's house. During the first visit, in April 1998, the victim's mother had called home from work to speak with Kirkby, who had been baby-sitting for the victim's mother. During the phone call, the mother could her hear son screaming in the background. She immediately drove home to find the victim at the backdoor, crying. Kirkby was sitting alone in the living room all of the lights out. When asked Kirkby why the boy was crying petitioner explained that it was because he was trying to get the child to go to the bathroom but he didn't want to go. The victim's mother told Kirkby that her husband would be home at 10:00 PM. She returned to work.

After petitioner's April 1998 visit ended, the victim's mother noticed that he had developed "pimples on his penis" so she took him to the pediatrician on three occasions. Shortly after petitioner departed the victim's home, he developed a rash on his own body which he eventually admitted to his half-sister was scabies.

Kirkby paid another visit to his half-sister's home just after Thanksgiving 1998. The victim's mother questioned him about certain statements her son had made regarding the last visit, and asked Kirkby whether he had squeezed her son's elbow and "ate his pee-pee." Kirkby started to cry and responded that he had squeezed the victim's elbow while they were sitting at the kitchen table because the victim had refused to go to the bathroom. However, petitioner denied "eating [the victim's] pee-pee."

During this visit, which lasted two weeks, the victim's mother did not allow petitioner to baby-sit. Petitioner again slept on the couch. The victim's mother also slept in her son's room on several occasions during that visit. One evening, when she was already in her son's room, Kirkby walked by, "did a double take and then kind of leaned back and looked into the bedroom and asked if [she] was going to be sleeping" in the boy's room that night.

About one week after Kirkby left, the victim began complaining to his mother about "his bottom". Specifically, he told her that his "hiney [sic]" hurt "like somebody is cutting me with a knife". At about the same time, the mother noticed several blood stains on her son's bed linens.

There were no blood stains on Tyler's bed sheets prior to Kirkby's visit. In addition, the mother also noticed blood on her son's tail-bone.

The child was brought to see pediatrician Dr. Michael Jordan on March 29, 1999, based upon an allegation of possible sexual abuse. As discussed further, infra, Dr. Jordan concluded that the child's symptoms were consistent with forcible penetration of the anal/rectal area.

The police were contacted and Kirkby was arrested on September 16, 1999, and transported to the New York State Police Barracks in Canandaigua for questioning. After being advised of his constitutional rights from a form, Kirkby read aloud that the certification on the form and signed and dated it. Kirkby then orally admitted to the investigator that while he was baby-sitting for his nephew in April of 1998, she was attempting to discipline the child during bath time. Kirkby related that he was dressed only in boxer shorts at the time. After grabbing the victim by the elbow and squeezing him, Kirkby then picked boy up and placed him on his (petitioner's) lap. At that point, according to petitioner, his penis may "possibly" have touched the victim's anus.

After Kirkby made oral admissions, he was again advised of his constitutional rights. Kirby was waived those rights for a second time in writing, and responded to a series of written questions posed by the police investigator. In response to one of those questions, Kirkby wrote that he had "wanted to know what it would feel like to rub my penis on [the victim]. I had an erection at the time, but I still had my boxers on. So I picked [the victim] up and sat him on my lap and rubbed against me". Kirby also stated that he had been rubbing his penis on [the victim]'s "butt".

At the police investigator's suggestion, Kirkby then wrote two letters of apology, one to his nephew (the victim), and one to his nephew's mother. In his letter to the victim, petitioner stated that he was "very sorry for trouble I caused," and that "when you said that I may have put my penis in your anus, that it wasn't intentional. It was merely an accident. I sleep with my boxers on and in the morning, you always used to wake me up to sit on my lap in the morning I wake up having to go to the bathroom and I maybe [sic] erect. It just so happened one of those mornings you woke me up and sat on my lap. And sat in the wrong area to make you think those thoughts that I stuck my penis in your anus." T.159-62.*fn1 To his half-sister, the victim's mother, petitioner apologized for "what has happened," and admitted, "I just happen to rub up against him and then I stopped, knowing that I shouldn't do that . . . . I don't know why I did it. it could have been curiosity. It wasn't intentional, it was just curiosity, nothing more".T.163-64.

A different police investigator reviewed the statements and spoke with Kirkby about his interactions with the victim before that, Kirkby again was advised of his constitutional rights. Kirkby was informed that there was evidence of rectal injuries to the victim that they needed to discuss. During that conversation that ensued, Kirkby said that he did not think he had sexually abused the victim but that, based on the evidence shown to him, "I must have did [sic] it."

T.224

Petitioner then gave a second written statement to the police. Again he was advised of, and waved, his rights. The statement included the following set ...


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