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Fulton v. Greene

November 5, 2009

ALVIN FULTON, JR., PETITIONER,
v.
GARY GREENE, ACTING SUPT. OF GREAT MEADOW CORRECTIONAL FACILITY RESPONDENT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

ORDER

I. Introduction

Petitioner Alvin Fulton, Jr., a/k/a Shaik S. Muqtadir, ("Fulton" or "petitioner") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court of one count of Course of Sexual Conduct Against a Child (N.Y. Penal Law § 130.75(a)). Following a jury trial before Judge Patricia Marks, Fulton was sentenced as a second felony offender to a determinate term of imprisonment of 25 years. For the reasons set forth below, Fulton's § 2254 petition is denied and this action is dismissed.

II. Factual Background and Procedural History

The victim ("Z.J.") was nine-years-old when her mother ("Nera") took the petitioner in as a border at their home on Clifford Avenue in the City of Rochester in July of 1999. Fulton proclaimed himself to be a Muslim minister, and after he had been in the house for a short period of time, he entered into a contract marriage with Nera. T. 283-85, 425.*fn1 In the meantime, petitioner began molesting Z.J., which involved sexual touching, vaginal and anal intercourse, and oral sex. He was also violent with Nera. T. 219-231, 292-95.

Z.J. provided explicit testimony at trial about the incidents of molestation, and that it was continuous until November of 2000. She testified that she was afraid to tell anyone, because she feared that petitioner would "hit [her] like he hit [her] mom." T. 232. Although petitioner did not verbally threaten Z.J., he told her that her mother "wasn't stable", that her mother would kill Z.J. and her brother, and that Nera had even attempted to poison the children once. He also told Z.J. that her mother "[had] sex with a dog and like other animals." T. 233-34. Because the children were afraid of Nera, they refused to go with her when she first tried to leave the house and the petitioner. Eventually, Nera had to return with the police to retrieve her daughter, and took refuge at a women's shelter in late-November of 2000. T. 236-38, 293.

Approximately three months after leaving Fulton, Nera took Z.J. to a doctor because she "wasn't acting herself." Z.J. did not tell the pediatrician who examined her about the abuse, stating that she "didn't think she [the doctor] would do anything... she couldn't help." T. 297, 240. Z.J. finally disclosed the abuse to her mother in March, 2001, after attending a church service about victims of sexual abuse. T. 242, 298.

At petitioner's trial, a pediatrician testified for the prosecution that there were no abnormal findings with respect to Z.J.'s physical examination, and that such a result is common in abused children. T. 347-49. A psychotherapist also testified about her interview with the victim, and about "Child Sexual Abuse Accommodation Syndrome". T. 358-68. Fulton testified in his own behalf, stating that he was a father to the children and "would never think of such a thing" as abusing his step-daughter. T. 420.

Petitioner's original indictment was dismissed on May 15, 2001 for failure to afford Fulton an opportunity to testify at the grand jury. The court granted the prosecution leave to re-present the case, and a second indictment was filed on June 15, 2001, having been voted on by the grand jury. See Appx. C, Record on Appeal, 10-11, 23. (Dkt. #6). Following pre-trial hearings, the case proceeded to trial, and petitioner was found guilty of the sole charge of Course of Sexual Conduct Against a Child. Petitioner admitted a prior felony, and, after a lengthy dialogue with the court, was sentenced by Judge Marks to a determinate sentence of 25 years. S. 26-26. He appealed his conviction to the Appellate Division, Fourth Department, raising three issues: 1) the court lacked jurisdiction because the petitioner was arraigned before the indictment was filed; 2) the petitioner did not receive adequate notice of the charges against him; and 3) the verdict was against the weight of the evidence. The Appellate Division unanimously affirmed his conviction. People v. Fulton, 13 A.D.3d 1217 (4th Dept. 2004); lv.denied 4 N.Y.3d 796 (2005). Fulton also raised additional points in a supplemental pro se brief, including lack of probable cause for arrest, insufficient grand jury evidence, defective grand jury proceedings, improperly filed indictment, legally insufficient evidence, ineffective assistance of counsel, and prosecutorial and judicial misconduct. Appx. E. The Appellate Division concluded that all of those claims were without merit. Fulton, 13 A.D.3d at 1218.

Petitioner raised one ground in his application for leave to the New York Court of Appeals, whether the indictment was jurisdictionally defective because it was not properly filed prior to the petitioner's arraignment. See Appx. DD.

Fulton then filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging fourteen grounds for relief. (Dkt. #1). The respondent has filed an answer opposing the petition on procedural grounds and on the merits. (Dkt. #5). For the reasons stated below, the petition is denied and this action is dismissed.

III. Discussion

A. General Principles Applicable to Federal Habeas Review

1. The 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, 131 L.Ed.2d 316 (1995). "The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' ...


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