The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se petitioner Demetrius Whitaker 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 July 17, 2000, in New York State, Supreme Court, Erie County, convicting him, after a jury trial, of one count of Rape in the First Degree (Penal Law § 130.35), one count of Sodomy in the First Degree (Penal Law § 130.50), one count of Sexual Abuse in the First Degree (Penal Law § 130.65), one count of Endangering the Welfare of a Child (Penal Law § 260.10), and one count of Assault in the Third Degree (Penal Law § 120.00).
For the reasons stated below, the petition is denied.
II. Factual Background and Procedural History
The charges arise out of four separate incidents that occurred in August of 1998 in the City of Buffalo. Three of the incidents involve the victim,*fn1 who was 10 years old at the time. The remaining incident involves an altercation between Petitioner and the victim's father.*fn2
On August 28, 1998, the victim was at her grandmother's home. Trial Transcript [T.T. 68]. The Petitioner and various other family members were also at the grandmother's home on that day. T.T. 64-68. Petitioner was a friend of the victim's family. T.T. 67. The victim's cousin asked the victim to go to his apartment to get some hair spray. T.T. 86, 103. The victim agreed to do so. T.T. 175. Petitioner followed her to her cousin's apartment, and when inside, told her to remove her shirt and go to the bedroom. T.T. 176-77. Petitioner proceeded to take off her pants and panties. T.T. 177. Petitioner then took off his pants and Petitioner and the victim went to a bed on the floor, wherein Petitioner proceeded to insert his penis into the victim's vagina. T.T. 178. At Petitioner's request, the victim then turned herself over, wherein Petitioner proceeded to insert his penis into her anus. T.T. 180. Petitioner then instructed the victim to remove her bra. Petitioner bit the victim on her chest and proceeded to take pictures of her with a Polaroid camera. T.T. 182-84. As Petitioner was taking the pictures, the victim heard her cousin's voice in the apartment. T.T. 185. Petitioner pulled up his pants and shut the door to the bedroom while the victim put on a shirt she found in the bedroom. T.T. 186. Petitioner held the bedroom door closed, told the victim to get dressed, and not to tell anyone what happened. T.T. 186-87. The victim's cousin and the victim's brother pushed on the door, but were unable to open it. Petitioner stuck his face out of the door and indicated he and the victim were taking pictures. T.T. 111-12. The victim's cousin testified that Petitioner appeared sweaty and smelled of sweat when he stuck his head out the door, and that his clothes were disheveled when he came out of the room. T.T. 112, 115. Petitioner then showed the victim's cousin a handgun, which Petitioner indicated he was trying to sell in the area. T.T. 115-16.
Shortly after the incident, the victim returned to her grandmother's home followed by her cousin and her brother. T.T. 120-21. Her cousin indicated to the victim's family that he suspected Petitioner had raped the victim. T.T. 125. Later that same day, the victim's family called the police and the police took a statement from the victim. T.T. 202-03. Thereafter, she was taken to the hospital, where she was examined by Dr. Christina Bucci ("Bucci"). T.T. 262-63. Bucci found no trauma to the victim's vagina or anus. Richard Spencer ("Spencer"), a forensic chemist who tested evidence in the case, found that no semen was detected in the victim's vagina, anus and/or mouth. The prosecution's expert witness, Dr. Jack Coyne ("Coyne"), testified at trial on the subject of "penetration", and that lack of trauma to the genitals does not necessarily mean sexual abuse has not occurred. T.T. 356-76.
The jury found Petitioner guilty of one count of rape, one count of sodomy, and the counts charging sexual abuse, endangering the welfare of a child, and assault. At sentencing, Petitioner moved to set aside the verdict pursuant to New York Criminal Procedure Law ("C.P.L.") § 330.30, alleging he had been denied effective assistance of counsel. The trial court denied the motion and sentenced Petitioner as a second violent felony offender to concurrent prison terms of 25 years for rape, 25 years for sodomy, 7 years for sexual abuse, 1 year for endangering the welfare of a child, and 1 year for assault.
Petitioner subsequently moved to vacate the judgment of conviction pursuant to C.P.L. § 440.10, alleging ineffective assistance of counsel, prosecutorial misconduct, and a due process violation. The trial court denied the motion by Memorandum and Order of June 28, 2001 [Mem. and Ord. 06/28/01], and leave to appeal to the Appellate Division, Fourth Department was denied on December 6, 2001. Petitioner then appealed his judgment of conviction to the Appellate Division, Fourth Department, which unanimously affirmed Petitioner's conviction, and denied leave to appeal to the New York Court of Appeals. People v. Whitaker, 302 A.D.2d 904 (4th Dept. 2003), lv. denied 100 N.Y.2d 543 (N.Y. 2003). This habeas petition followed.
III. General Principles Applicable to Habeas Review
A. The AEDPA Standard of Review
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).
A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id. This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
B. Exhaustion Requirement
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that. . . the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995). "The exhaustion requirement is not satisfied unless the federal claim has been ...