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Gray v. Murray

December 4, 2009

JOEL GRAY, PETITIONER,
v.
TIM MURRAY, SUPERINTENDENT, GOWANDA CORRECTIONAL FACILITY RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Petitioner, Joel Gray ("Petitioner"), proceeding, through counsel,*fn1 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 December 15, 2003, in New York State, County Court, Steuben County, convicting him, after a jury trial, of Rape in the First Degree (N.Y. Penal Law ("Penal Law") § 130.35[1]) and Rape in the Second Degree (Penal Law § 130.30[1]).

For the reasons stated below, the writ is denied and the petition is dismissed.

II. Factual Background and Procedural History

A. Introduction

On July 15, 2002, the 13 year-old victim,*fn2 was spending an overnight visit at the apartment that her mother shared with Petitioner in Bath, New York. After her mother fell asleep, Petitioner pushed the victim down, put his hand over her mouth, removed her underpants, and raped her.

By Steuben County Indictment Number 2002-308, Petitioner was charged with Rape in the First Degree and Rape in the Second Degree.

B. The Trial

1. The People's Case

On the night of July 15, 2002, the victim, a borderline mentally retarded girl then age 13, and in foster care, had a sleep-over at the apartment of her biological mother ("the mother" or "the victim's mother") in Bath, New York.*fn3 Trial Transcript [T.T.] 51-54, 83-84, 98. The victim's mother shared her apartment with Petitioner. Before the night of the incident, the victim had only met Petitioner a couple of times, and they did not get along. T.T. 54. After dinner that evening, the victim played cards with her mother and Petitioner before going to bed. T.T. 55. The victim was to sleep with her mother in the first floor living room, while Petitioner was to sleep in the second floor bedroom that he usually shared with the victim's mother. T.T. 56.

After her mother went to bed, Petitioner came into the living room. T.T. 58, 98. The victim tried to wake her mother without success. T.T. 58. Petitioner took the victim by the arm and led her into the upstairs bedroom where he then pushed her down onto her mother's bed. T.T. 59-60. Petitioner got into the bed, removed the victim's shirt and underpants, got on top of her, touched her personal areas, and then inserted his penis inside her vagina. T.T. 61-62. The victim did not know if Petitioner wore a condom because it was dark. T.T. 60. The victim tried to push Petitioner off of her, but he was too strong. The victim tried to yell out, but Petitioner put his hand over her mouth. T.T. 62. Because she was scared, the victim waited until the next morning to tell her mother that she had been raped. T.T. 64-65. Before that night, the victim had not yet had her first period. T.T. 105-106.

The victim testified that she sustained no physical injuries from the incident, and that after she spoke to her mother the next day, her mother did not call the police or take her to see a doctor. T.T. 77. The victim also testified that she told no one else about the incident, except for her foster mother who took her to see a doctor the following day. The doctor performed a pubic examination of the victim and collected a Rape Kit. T.T. 77-78. The results of the examination were inconclusive as to whether the victim had been raped.*fn4 T.T. 50. The victim also testified that she disliked all her mother's previous boyfriends before Petitioner. T.T. 68.

The victim's mother corroborated the victim's testimony about the sleeping arrangements during the victim's visit. T.T. 101. She testified that she went to bed after the television news, and woke up around 2 a.m. to find that neither the victim, nor her pillow, were in the living room. At that time, Petitioner was walking up the stairs to his bedroom and the victim was in the bathroom. T.T. 104. Thereafter, the victim's mother discovered the victim's pillow on top of Petitioner's bed in his bedroom. T.T. 106. Petitioner indicated to the victim's mother that the victim had come into his bedroom to talk to him about her period. T.T. 107. When the victim exited the bathroom, the victim's mother testified that she did not see any blood in the toilet and she did not speak to the victim. T.T. 105, 107, 124-125. The victim showered the following morning. T.T. 96-97, 110.

On cross-examination, the victim's mother testified that the victim did not like Petitioner because she thought he was going to try to take the ...


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