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Burch v. Millas

August 14, 2009


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


I. Introduction

Lawrence W. Burch, II ("Burch" or "petitioner"), represented by attorney Charles Edward Fagan, Esq. ("Attorney Fagan" or "habeas counsel"), brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Chautauqua County Court on one charge of aggravated sexual abuse in the second degree. The parties have consented to final disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

II. Jurisdiction

A. "In Custody" Requirement

Under 28 U.S.C. § 2254, a habeas petitioner must establish that he is "in custody in violation of the Constitution or laws... of the United States." See 28 U.S.C. § 2254(a). However, a petitioner need not actually be imprisoned to meet the "in custody" requirement, and may satisfy this requirement if he presently suffers from substantial restraints not shared by the public generally. See, e.g., Hensley v. Municipal Court, 411 U.S. 345, 351 (1973) (release on own recognizance); Jones v. Cunningham, 371 U.S. 236, 243 (1963) (parole). Moreover, once the petitioner has satisfied the "in custody" requirement, jurisdiction is not thereafter defeated by petitioner's subsequent release from custody. See Carafas v. LaVallee, 391 U.S. 234, 238 (1968). Burch was sentenced to an indeterminate term of four to eight years in prison. Burch served his sentence at Mt. McGregor Correctional Facility and was released during the pendency of the instant federal habeas corpus proceeding. Because he filed his petition while he was incarcerated, he has satisfied the "in custody" requirement of 28 U.S.C. § 2254(a). See Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 1925-26 (1989).

B. Mootness

As with all litigants in federal court, a habeas petitioner must satisfy the case or controversy requirement of Article III, § 2, of the Constitution in order to be eligible for relief. A case becomes moot if, at any stage of the proceedings, it fails to satisfy the case-or-controversy requirement. Kamagate v. Ashcroft, 385 F.3d 144, 150 (2d Cir. 2004) (citing Spencer v. Kemna, 523 U.S. 1, 7 (1998)); accord Marrero Pichardo v. Ashcroft, 374 F.3d 46, 51 (2d Cir.2004); Swaby v. Ashcroft, 357 F.3d 156, 159-60 (2d Cir.2004). Burch's petition was not rendered moot by his subsequent release from custody. However, in order for a habeas petitioner who is no longer in custody to demonstrate a live case or controversy, there must exist a concrete and continuing injury which is a collateral consequence of the detention and which can be remedied by granting the writ. See Spencer, 523 U.S. at 7; see also Perez v. Greiner, 296 F.3d 123, 125 (2d Cir.2002).

A prisoner's challenge to the validity of his conviction always satisfies the "case or controversy" requirement of Article III because the incarceration constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction. Spencer v. Kemna, 523 U.S. at 7. However, when the prisoner's sentence has expired, some concrete and continuing injury other than the now-ended incarceration--that is, some "collateral consequence" of the conviction-- must exist if petition is to remain justiciable. Id. (citing Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968)). The Supreme Court has held that collateral consequences are presumed to flow from a felony conviction such as the one at issue here, such that petitioner's release from custody does not moot the habeas petition. Sibron v. New York, 392 U.S. 40, 55-56 (1968); Evitts v. Lucey, 469 U.S. 387, 391 n.4 (1985); accord Spencer, 523 U.S. at 8, 12 (not departing from Sibron's presumption that "a wrongful criminal conviction has continuing collateral consequences (or, what is effectively the same, to count collateral consequences that are remote and unlikely to occur)," but declining to extend the Sibron to the parole revocation context).

Here, Burch challenges the underlying felony conviction that led to his detention, and the Sibron presumption of collateral consequences exists. See Spencer, 523 U.S. at 7-8 (citing Sibron, 392 U.S. at 55-56). Accordingly, Burch's habeas petition has not been mooted by his release from incarceration in state custody and presents a justiciable controversy amenable to review by this Court.

III. Factual Background and Procedural History

A. Indictment and Trial Proceedings (First and Second Trials)

On June 11, 1997, Burch was indicted by a Chautauqua County Grand Jury on one count of aggravated sexual abuse in the second degree (N.Y. Penal Law § 130.67(1)(a)), a class C felony. The indictment alleged that "on or about February, 1997,"*fn1 Burch "did insert a finger in the vagina of another person causing physical injury to such person by forcible compulsion." The alleged victim was the eleven-year-old daughter ("the complainant") of Burch's girlfriend, A.B., with whom he was living at the time.

At the trial-court level, Burch was assigned an attorney from the Chautauqua County Public Defender's Office, Donald V. Nihoul, Esq. ("Attorney Nihoul" or "trial counsel"). Burch's first jury trial in Chautauqua County Court (Ward, J.) ended in a mistrial because the jury was unable to reach a unanimous verdict. See Affidavit of Charles Edward Fagan, Esq., Submitted In Support of Habeas Petition ("Fagan Habeas Aff.") ¶6 (stating that in certain state court pleadings, the prosecutor noted that, upon information and belief, the vote was eight to four in favor of acquittal.); see also Petitioner's Memorandum of Law in Support of Habeas Petition ("Pet'r Habeas Mem.") at 1; People's Brief on Direct Appeal ("Peo. App. Br.").*fn2

Jury selection for petitioner's second trial was scheduled for early April of 1998. Another mistrial was declared, this time because counsel ran out of prospective jurors before a full jury could be seated. Id.

B. Trial Proceedings -- Petitioner's Third Trial

Burch's third jury trial commenced on April 28, 1998, in Chautauqua County Court before Acting County Court Judge Robert C. Noonan. Burch again was represented by Attorney Nihoul. In his opening statement on April 29, 1998, trial counsel set forth the defense theory of the case--namely, that the victim was upset about her mother's new relationship with Burch and wanted "unfettered access to her mom and her mom's attention[.]" T.196.*fn3 Trial counsel told the jury that "for about six months prior to this alleged incident [the victim] had become increasingly rebellious, defiant, and had just got to the point where she could hardly tell the truth about anything." T.195. According to the defense, the victim "threatened her parents at least on two occasions with being reported to Child Protection." T.195-96. The victim was portrayed as having "a grudge against Mr. Burch and... wanted him out of the house;" id.; hence, the victim concocted the story about Burch sexually abusing her in order to oust him from the household and her mother's life. As the trial judge would later observe, the "issue of credibility" was "critical to the case...." T.332.

1. The Prosecution's Case

a. The Complainant

The complainant testified that Burch had lived with her and her mother, along with her half-brother and half-sister for "[m]aybe three or four years" prior to the incident in 1997, and that she called Burch her "dad." Id. She left her mother's home in March 1997, after reporting the sexual abuse to her guidance counselor at school. The complainant testified that Burch was touching her "[i]n [her] private areas[,]" meaning her "breasts and... vagina area." T.209-10. According to the complainant's recollection, the incident at issue had occurred after "a couple of days" after Valentine's Day in 1997. B.B. remembered that it was near Valentine's Day because she had "heard a thing on the radio about like a -- competition kissing [sic]... and [she] asked [Burch] about it." T.210, 218. In response to her question about the kissing contest, Burch then "started kissing [her]." Id. The complainant recalled that when Burch kissed her, it was "almost... like [she] couldn't breath [sic]." T.210 She testified that Burch also rubbed her breasts. T.211. (This alleged instance of Burch kissing her and touching her breasts was not part of the indictment.)

When asked by the assistant district attorney whether there was "another day when something else happened," T.211, the victim replied affirmatively, but could not pinpoint a date:

Q: When did that [second incident] occur?

A: Um, I'm not quite sure.

Q: Did it occur sometime before you left the house?

A: Yes.

Q: Did it occur sometime before you told your guidance counselor?

A: Yes.

Q: Can you give us an idea of when that would have happened?

A: Like I can't remember quite when, but -

Q: Is there an occasion that comes to mind.

A: Not really.

Q: Is it fair to say it was after Valentine's Day and before you left in March?

A: Yes.

T.211-12. Defense counsel did not object to that line of questioning by the prosecutor. The complainant then testified that on the second occasion, Burch "forced her on [his] bed and he started kissing [her]," and "touched the inside of [her] vagina." T.212. She "hardly could move."

T.212. When Burch "would stick [his fingers] inside [her] vagina," it was painful and "felt like crayfish pinchers[.]" The complainant explained that being pinched by crayfish feels "like a bunch of nails are sticking into your skin." T.218.

She stated that she did not tell anyone immediately what had happened because she was "scared [she] would get in trouble." She also testified that Burch and her mother were going to a shooting range, and she was afraid that Burch was going to shoot her mother. T.213.

The complainant related that years earlier, she had been abused at age three by her paternal grandfather. When the prosecutor asked if she remembered where that incident happened, the complainant replied, "Not quite. It's vivid [sic]." T.215. The complainant at first was unable to recount any details of the abuse, stating simply, "Um, my grandfather abused me."

T.215. She then elaborated somewhat, stating that her grandfather had "touched [her]" "[l]ike all over" with "his hands and his penis," but she could not recall "how [her grandfather] touched [her]." T.215. When asked what her grandfather did with his hands, the complainant replied, "I'm not quite sure." T.216, see also T.217-18. When asked if there was "any pain associated when [her] grandfather abused [her]," she replied, "I remember like I was just laying on the bed and there was like -- like pinching my shoulder." T.216. She later said that there was no pain associated with when her grandfather abused her, but she reiterated that there was pain when petitioner touched her. T.217. When asked if she remembered her grandfather doing "anything with his fingers or penis to put them inside [her]" she replied, "I'm not sure." T.216.

On cross-examination, the complainant admitted that at first she thought petitioner "was okay because he like bought [their family] a whole bunch of stuff." The complainant admitted that she told her mother that she "didn't want her [mother] to be in a relationship just then," T.226, but did not say anything specific to her mother about Burch.

Trial counsel elicited admissions from the victim that she had lied to her mother and to petitioner's mother, who was like her grandmother, on several occasions in the past about whether she had done her homework. T.225.

The victim admitted that in January 1997, she and her mother had gotten into an argument "involving string." She said that she was "kicking and it threw her [mother's] glasses off." T.232. While she was struggling to get way from her mother, who was trying to spank her, the complainant admitted that she threatened to call child protective services. However, she never did. T.232, 233.

Trial counsel then asked her to describe again the two incidents*fn4 about which she had testified on direct examination. The complainant indicated that the first incident occurred while her mother "[m]ost likely" was at work, but she did not recall the exact time or date. T.234. She surmised that she and Burch were "[p]robably" watching T.V. T.235. The second incident, in which petitioner inserted his finger into her vagina, occurred during the afternoon "a couple of days later" in the bedroom shared by petitioner and her mother. T.235. T.236. Burch "took [her] upstairs" and then "he pushed [her] on the bed," where he "held [her] down and he kissed [her]" with his hands "[l]ike in front of him on [her] shoulders." T.237. According to the complainant, her brother and sister were present in the house on both occasions. T.234, 236.

Trial counsel then chose to elicit testimony about additional uncharged incidents of sexual abuse, asking the complainant, "Were there any other times [that Burch touched her]?"

T.238 (emphases supplied). She responded that there were "[m]aybe two," in addition to the two described above. T.238. The complainant explained that petitioner did "the same thing," T.238, that is, he touched her in her vaginal area with his fingers. T.238-39. She stated that a third incident occurred in petitioner's bedroom while her brother and sister also were in the house, but she could not provide a date and could not say whether it occurred in the daytime or nighttime.

T.239. She then contradicted her earlier testimony, admitting that she was "not sure" if there was a fourth incident. T.240.

Later during his cross-examination of the victim, trial counsel returned to the topic of the other instances during which Burch allegedly touched her inappropriately, asking her, "[W]here did [petitioner] kiss you during those times?" T.261. The complainant replied that Burch kissed her on her mouth. T.261. Although no oral-genital contact was alleged in the indictment or brought up by the prosecutor during direct examination of the complainant, trial counsel asked her, "Did [petitioner] ever kiss you on the vagina?" T.261. The complainant responded, "Yes," and said that it occurred "[w]hen they were up in the room [i.e., Burch and her mother's bedroom]." T.261. The complainant agreed that Burch kissed her on her vagina occurred only once "out of the three or four instances" that he abused her. T.262. Apparently attempting to show that the victim's recollection was faulty and inconsistent, trial counsel brought up her testimony in the family court proceeding in which she testified that he did "more to [her] than he did the first time," T.263, and that "[s]ince the first time he has on three or four occasions rubbed his fingers inside of [her] vagina and kissed [her] vagina." T.264. Trial counsel asked the complainant if she recalled testifying previously, at the family court proceeding, that the abuse occurred "maybe five or six" times and she said, "No, I didn't really recall that." The victim indicated that she believed she testified that petitioner touched her "maybe two, maybe three" times. T.265.

Trial counsel then questioned the complainant about March 19th, day she reported the abuse. She recalled the date, she said, because she had gone home sick from school at about 2 p.m.; Burch's brother, Lance Burch ("Lance"), picked her up at school and brought her home.

T.240-41. Because petitioner's brother, was playing computer games and "wasn't paying any attention to [her]," the complainant decided to walk back to school to get her homework from her English teacher. T.242. The victim testified that her teacher thought something was wrong so she took her (the victim) to the guidance counselor's office. T.242.

When Burch first moved in with them, the complainant thought that he was going to be like her sister's father who had been physically abusive. T.253-54. Trial counsel then explored the complainant's feelings about her mother's relationship with Burch by introducing the complainant's testimony from the family court proceeding where she testified that she told her mother about her apprehensions but her mother "told [her] to forget about it and so [she] did."

T.255. The complainant admitted that she wanted her mother "to give him [Burch] up[.]" T.255. Trial counsel's next focus of cross-examination was to elicit the complainant's opinion of

petitioner, asking her, "What kind of man is Mr. Burch?" T.243. The complainant testified, "Well, right now I think he's sick." T.243. Trial counsel then attempted to clarify the question, referring the complainant to the period of time that she was living with him. T.243. The complainant said that she "thought he was nice" and she agreed that he "was good to [her] mom[.]" T.243, 251. The complainant admitted that Burch never hit her mother, like the previous boyfriends had. T.244. Before the abuse occurred, the complainant said that she felt that petitioner "was a nice guy" but that after he "did this to [her]," she did not feel safe around him.

T.253. Trial counsel elicited testimony that she did not feel safe around Burch "[f]rom the very beginning" because "he just didn't look like a safe person." T.256. When asked what she meant, the complainant testified, "Like, um, he would like work at night and sleep all day, and I just didn't feel safe." T.256. The complainant testified that it was "safe to say" that she "wanted him out of the house... from the first time he moved in[.]" T.256.

Defense counsel questioned the complainant about Burch's alleged threats not to reveal the sexual abuse: "[O]nce he told me I shouldn't tell my mom... [l]ike about the abuse." T.244. Trial counsel asked if petitioner told the complainant what would happen if she told her mother. The complainant replied, "No, except for like she would be mad at me or something." T.244.

Trial counsel then attempted to have the victim characterize her relationship with her mother as contentious. However, she disagreed with defense counsel's characterization of her mother as "often mad" at her, stating it was "[o]nly like when [she] was bad." T.244. The complainant testified that petitioner punished her "[a] couple of times" by grounding her for failing to do her homework and the dishes. T.245. The complainant stated that she got spanked on occasion but was "not quite sure" when it happened. T.246. She stated that getting a spanking "made [her] cry." T.246.

b. The Prosecution's Medical Expert: Dr. Robert Daniels

Robert Daniels, M.D. ("Dr. Daniels") testified as the prosecution's expert witness in its case-in-chief. Upon examining the victim, Dr. Daniels found that her hymenal ring was broken and that there was a "posterior tag," which "by definition means that there had been a tear along this side and this side of her hymenal ring." T.282-82. Instead of a "nice soft tissue opening," T.282, the edges of the vagina appeared to Dr. Daniels to be "calloused from chronic penetration," T.282. Dr. Daniels opined that, to a reasonable degree of medical certainty, the physical findings were caused by "[c]hronic vaginal introduction." T.282. Dr. Daniels testified that the penetration would have had to have been done "many" or "multiple times over a course of a fairly decent amount of time" in order to produce the physical symptoms he found. T.284. The doctor likened the victim's sub-acute injuries to "a callous, [which]... just cannot happen overnight." Dr. Daniels explained that the victim's vaginal opening had "adapted to penetration the way most adult vaginas do." T.284. In his opinion, the victim's broken hymenal ring had occurred when she was near maturity (as she was at the time of the allegations), not when she was three years-old. T.285. He opined that, to a reasonable degree of medical certainty, the injuries to the victim's vagina were caused by repeated penetration at or near the time of maturity. T.286. Dr. Daniels testified that "it had not happened recently... [b]ut it had happened many times." T.284.

On cross-examination, Dr. Daniels stated that he "would guess" that the "minimum" number of penetrations that could have caused the condition seen in the victim was "four or five times over the course of about two to three weeks." T.287. When asked whether "two or three times [would] have done it," Dr. Daniels testified "[p]ossibly," but it would be "less likely."

T.287, 288. Dr. Daniels testified that the victim would have felt pain "initially" but over time the tissue would become adapted to the penetration and there would not be "nearly as much" pain.

T.286. Dr.

Daniels conceded that the disruption of the victim's hymen could have occurred a year before the alleged incident. T.288. When asked if the victim could have disrupted her own hymen, Dr. Daniels stated, "I imagine she could have. It would have been very painful. I suppose she could have." T.289. He did not agree that she could have gotten the callousing of the tissue by just "exploring herself," explaining that she would have to do more than explore--she would have had to chronically rub the area for it to become adapted. T.289. Dr. Daniels conceded that the complainant did not say anything about a sharp pain when she gave her medical history; she did mention that there was "some pain" but she "wasn't very specific about it[.]" T.290.

On re-direct, Dr. Daniels agreed that it was "true" that the injury could have been caused by "somebody sticking his finger inside of her vagina and rubbing it back and forth." T.291. That is what he meant by the chronic injury. T.291. Dr. Daniels reiterated that he did not believe that the injury was self-inflicted "because the first time [it occurred] would have been quite painful[.]" T.291.

On re-cross, Dr. Daniels admitted that he could not pinpoint when the first instance of penetration would have been, stating that it could have been some period of time, e.g., months, before the callousing happened. T.291-92.

However, Dr. Daniels opined on re-re-direct that the initial penetration "[a]bsolutely" could have occurred during a shorter period of time (i.e., "weeks or days possibly") before the callousing occurred. T.292.

c. The Complainant's Younger Sister

The victim's eight-year-old half-sister S.R. testified as an unsworn witness for the prosecution. S.R. testified that she "[s]ometimes" saw Burch and the complainant kiss but she did not know what kind of kisses they would do. T.314. S.R. testified that Burch did not kiss the complainant in the same way he would kiss her mother. Id. The sister testified that she "sometimes [sic]" remembered Burch kissing the victim around Valentine's Day, but that it was a short kiss, not a long kiss. T.315. S.R. denied remembering "telling anybody that sometimes it would be a long kiss[.]" The prosecution rested its case thereafter. T.318.

2. Defense Counsel's Motion to Dismiss the Indictment

At the close of the prosecution's direct case, trial counsel moved to dismiss the indictment "upon the People's lack of proof of any substantial pain or impairment of bodily condition which is part of the element of the offense charged[,]" arguing that the complainant's testimony did not "come up to the legal requirements of substantial pain." T.318. Trial counsel noted that the complainant stated that "it didn't even cause her to cry, it was a brief duration, didn't last any more than whatever the act was [and] [s]he couldn't be very specific about how long that was." T.318. After reviewing his notes, the trial judge agreed with the prosecutor's argument that the victim "did say it's like a crayfish pinching you, like nails sticking into your skin." T.322. The trial judge also agreed that, contrary to defense counsel's contention, the complainant had testified sufficiently to create an issue of fact as to forcible compulsion, in that she testified that Burch held her down with hands on her shoulders and that the "kissing occurred to the point where she either said she couldn't breath [sic] or it was smothering[.]" T.324, 325. Accordingly, the trial court denied the motion to dismiss the indictment. T.325.

3. The Defense Case

a. Petitioner

Burch testified that he had injured his knee in basic training while in the Army and received a disability-based discharge on October 31, 1991. As a result, he developed degenerative osteoarthritis which, along with the criminal charges pending against him, now prevents him from working. T.428. In 1996, he was working as the head full-time sales associate at Radio Shack. T.430-31. He was having a lot of problems with his knee at the time; he had to wear a neoprene brace and would have to sit down when work got too taxing. T.433. He was taking prescription Tylenol with codeine for the pain. T.435. Sometimes his knee would give out and he would fall down. T.435-36. As a result of his knee problems, he was not able to help the complainant's mother with the household chores as much or spend as much time with the children as he had wanted to do. T.436.

He and the complainant's mother started dating in April 1994 and he moved in with her in September 1994. He did not feel that there were any problems at first between him and the children when he moved in. T.437. The children, including the complainant, called him "dad."

T.442. With their mother's permission, he would sometimes discipline the children if they did not do their chores or get their homework done; that ranged from taking money ...

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