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McHerrin v. Poole

December 1, 2009

MARQUES MCHERRIN, #03-B-3017 PETITIONER,
v.
THOMAS M. POOLE, RESPONDENT.



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

ORDER

I. Introduction

Petitioner Marques McHerrin ("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 Erie County Court before Judge Timothy Drury on two counts of Rape in the First Degree (N.Y. Penal Law §§ 130.35(1), (4)) and one count of Sexual Abuse in the First Degree (N.Y. Penal Law § 130.65(1)). Petitioner was sentenced to three concurrent terms of imprisonment, the longest of which is eight years, in addition to five years of post-release supervision.

II. Factual Background and Procedural History

Petitioner's conviction arises out of an incident of forcible sexual contact with a twelve-year-old female acquaintance ("the victim") on January 3-4, 2003. The victim testified at trial that she was home alone with your younger brother when petitioner forced his way into her apartment after she partially opened the door for him. T. 78-79.*fn1 Petitioner then dragged her into the hallway outside the apartment and warned her to be quiet. Petitioner lead the victim toward the basement, and, in trying to push the petitioner away, the victim fell down the basement stairs. Petitioner followed her into the basement and locked the door. He held her by her wrists and covered her mouth when she screamed. T. 80-81.

The victim recalled that petitioner tore off her pants and underwear as she screamed and tried to hit him, but that he was "too strong" and she could not fight him off. T. 84. Still holding the victim's wrists, petitioner penetrated the victim's vagina with his finger and with his penis. As petitioner began to have intercourse with the victim, she screamed and struggled to get away. T. 86. The victim kicked petitioner off her and tried to run upstairs, but petitioner grabbed her by the ankle, pulled her back and "got on top of [her] again." The victim testified that petitioner also started to kiss her neck. T. 88-89. After hitting petitioner with a piece of dryer pipe, she eventually escaped and ran upstairs to her neighbors' apartment. T. 92.

Dr. Jack Coyne, a pediatrician, testified for the prosecution and explained how a child could be raped without displaying signs of physical injury. T. 208-214. Two of the victim's neighbors testified that they called 911 when the victim, wearing only a jersey top, ran upstairs to their apartment in the early morning of January 4, 2003. T. 57, 124-25.

Petitioner testified on his own behalf and recalled a different series of events from the victim's version of the incident. On the evening of January 3, petitioner was celebrating his birthday at his apartment with a few friends. One of them, Jasmine Dixon ("Dixon"), is the victim's older sister. According to petitioner, Dixon invited petitioner to her apartment, which she shared with the victim, to continue drinking. T. 193-94, 233. Petitioner then went to Dixon's apartment, rang the lower apartment doorbell, and the victim answered and let him into the back hallway. T. 234. Petitioner sat by the stairway in the back hall to wait for Dixon, who had not yet arrived. A few minutes later, the victim told petitioner that her mother was coming home and insisted that petitioner leave. T. 234-35. He then walked back home to his apartment on Carl Street in Buffalo.

Following a jury trial, petitioner was convicted of two counts of rape and one count of sexual abuse. He appealed the judgment to the Appellate Division, Fourth Department, which unanimously affirmed his conviction. People v. McHerrin, 19 A.D.3d 1166 (4th Dept.), lv. denied 5 N.Y.3d 808 (2005). Petitioner did not seek post-conviction collateral relief in the state courts. He then filed the instant petition for habeas corpus pursuant to 28 U.S.C. § 2254, alleging four grounds for relief. (Dkt. # 1). For the reasons that follow, the Court finds that petitioner is not entitled to habeas relief.

III. Discussion

A. Standard of Review

To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence presented in state court. See 28 U.S.C. § 2254(d)(1), (2); Williams v. Taylor, 529 U.S. 362, 375-76 (2000).

B. Merits of the Petition

1. Right to Be Present at Material Stage ...


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