The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Keith Mathis ("petitioner") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction following a jury trial in the Supreme Court, Monroe County before Justice David Egan on one count each of Rape in the First Degree (N.Y. Penal Law § 130.35(1)) and Sodomy in the First Degree (former N.Y. Penal Law § 130.50(1)). Petitioner was sentenced as a second felony offender to two consecutive 25-year terms of imprisonment and five years of post-release supervision. For the reasons that follow, the Court finds that petitioner is not entitled to habeas relief.
II. Factual Background and Procedural History
Sometime during the early morning hours of November 7, 2001, petitioner grabbed, beat, and raped Devonne Stith ("the victim") as she was walking down Samuel McKee Way in the City of Rochester. At trial, the victim acknowledged using crack-cocaine earlier in the day, and had started to "come down" from her high around 7 or 8 p.m., when she stopped at her uncle's house. T. 280-82.*fn1 The victim then stopped at a corner store, and proceeded to walk home via Samuel McKee Way when she was grabbed from behind by a man who told her not to scream. She testified that she struggled to escape, but was forcefully dragged into an abandoned garage. T. 252, 254-55. Once in the garage, petitioner beat her, and forced her to perform oral sex on him twice. He also had forcible intercourse with the victim. T. 254-57. Petitioner then released the victim, who was partially clothed, and she fled into the street in an attempt to flag down passing cars. When this proved unsuccessful, she was able to call 911 after the victim approached a woman walking out of a nearby building. T. 260-61.
The victim suffered injuries to her head and face, had a black eye, and lost a tooth and an acrylic fingernail in the struggle.
T. 174-75, 255, 264-65. A pair of sneakers, women's underpants, a jacket, and a fingernail were recovered from the garage. T. 169, 190. Stains containing a mixture of blood and semen were also found on the floor of the garage. The petitioner's DNA was found on oral swabs taken from the victim's mouth, although it did not appear on a vaginal swab.*fn2 T. 306.
Petitioner testified in his own behalf and told the jury his recollection of the events of November 7, 2001. He testified that on the evening of November 6, 2001, he was visiting a friend on Cady Street in Rochester, where he met a woman named Devonne Smith.
T. 396-98, 405. Petitioner claimed that he and the victim had a private conversation, during which the victim agreed to perform oral sex on him in exchange for cocaine. T. 398-99. The two left the Cady Street apartment and headed for an abandoned garage on Samuel McKee Way. T. 400-401. When they arrived, petitioner gave the victim the crack-cocaine as promised. The victim smoked for a few minutes, and then voluntarily performed oral sex on the petitioner. At some point, the victim began to disrobe, suggesting that the two have sexual intercourse. Petitioner denied her request, and stated that he was only interested in oral sex.
T. 401-02, 405. At the culmination of this encounter, petitioner ejaculated into the victim's mouth, and she spit it on the garage floor. T. 403.
Petitioner testified that as he was leaving, he saw two men walking toward the garage. T. 403-05. He described the men only as "big" and "bulky". T. 408. Petitioner denied raping or sodomizing the victim. T. 406. The jury deliberated for nine hours before returning a guilty verdict on one count each of rape and sodomy, and acquitting him of a second count of sodomy. T. 520. Petitioner was sentenced as a second felony offender to two consecutive sentences of twenty-five years, and a five-year period of post-release supervision. S. 11-12.
Petitioner appealed his conviction to the Appellate Division, Fourth Department, raising three issues: 1) ineffective assistance of counsel; 2) that the counts of the indictment were not sequentially linked to the proof; and 3) the sentence was harsh and excessive. See Appx. B. The Appellate Division, Fourth Department modified the judgment by directing that the sentences run concurrently, and affirmed the judgment as modified. People v. Mathis, 8 A.D.3d 966 (4th Dept. 2004). Leave was denied on September 21, 2004. Mathis, 3 N.Y.3d 709 (2004).
Petitioner then brought a motion for vacatur pursuant to New York Crim. Proc. Law ("C.P.L.") § 440.10. Appx. I. The state court summarily denied petitioner's motion, and leave to appeal the decision was denied by the Appellate Division. Appx. L, P.
Petitioner filed the instant petition for habeas corpus pursuant to 28 U.S.C. § 2254 with this Court, alleging:
1) ineffective assistance of trial counsel; 2) a double jeopardy violation; 3) material evidence was not allowed at trial; 4) the verdicts were repugnant; and 5) the sentence was harsh and excessive. (Dkt. #1). Through counsel, he has filed a memorandum in support of his claim of ineffective assistance of trial counsel. (Dkt. #11).
A. General Principles Applicable to Federal ...