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Ivy v. Superintendent

December 28, 2009

STANLEY IVY, PETITIONER,
v.
SUPERINTENDENT, CLINTON CORRECTIONAL FACILITY RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se petitioner Stanley Ivy ("Petitioner") 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 June 12, 2003, in New York State, County Court, Genesee County, convicting him, after a jury trial, of two counts of Rape in the First Degree (N.Y. Penal Law ("Penal Law") § 130.35[1], [3]) two counts of Attempted Sodomy in the First Degree (Penal Law §§ 110, former 130.50[1], [3]), and two counts of Sexual Abuse in the First Degree (Penal Law § 130.65[1], [3]).

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

II. Factual Background and Procedural History

A. Introduction

Petitioner was charged in Indictment No. 4546 with two counts of Rape in the First Degree, two counts of Attempted Sodomy in the First Degree, and two counts of Sexual Abuse in the First Degree, stemming from a series of sexual offenses occurring on November 17, 2002, committed against seven-year old SH ("SH" or "the victim"). On April 28, 2003, Petitioner proceeded to trial and was found guilty as charged.

B. The Trial

1. The People's Case

On November 17, 2002, Latisha Thacker ("Thacker") lived at 10 Lewis Place in the City of Batavia with her three children --- the victim, four-year old Asariah, and one-year old Trenton. Trial Transcript [T.T.] 29-30, 32. Petitioner, who was twenty years old at the time of the trial, was a friend of the family and also lived with Thacker and her children. T.T. 30-31. On the evening in question, Thacker left her children at home with Petitioner for approximately 30-35 minutes while she drove a friend home and went to a grocery store. T.T. 32. At the time Thacker left the house, SH and Asariah had finished taking a bath and were getting ready for bed. T.T. 33-34, 52-53, 60.

SH went into her bedroom, sat on her bed, and began putting on her pajamas pants when Petitioner entered her room and pulled off her pants and her underwear. Petitioner then pushed SH onto her back, got down on his knees, pulled down his pants, and inserted his penis into her vagina. T.T. 53-55, 58-59, 64-67. SH did not attempt to pull her pants back up because she was "stuck on the bed" and she "couldn't move" because he was "holding [her] down" with both of his hands. T.T. 66-67. When Asariah approached the room and saw Petitioner from behind, Petitioner jumped up, and pulled up his pants. SH, Asariah, and Petitioner then went to the living room. T.T. 55-56, 68-69.

In the living room, SH began coloring while Petitioner sat next to her on the couch. Petitioner then unzipped his pants, took out his penis and told SH to put his penis in her mouth. After she refused, Petitioner pushed her head down with his hand, causing his penis to nearly enter her mouth. However, SH was able to get her head away before that happened. T.T. 56-57, 69-70. Petitioner then took SH's hand and put it on his penis and starting rubbing her hand up and down. T.T. 57-58, 71. When Petitioner heard Thacker returning, he put his penis back into his pants and zipped them up. T.T. 57.

The next day, Thacker picked up SH from school; Petitioner and Petitioner's brother were in the car at that time. After Thacker drove Petitioner and his brother to their mother's home, SH began crying and asked Thacker not to allow Petitioner back in their home. SH told Thacker what Petitioner had done to her. T.T. 35, 50, 59. Thacker drove SH to the hospital emergency room for an examination. T.T. 36, 59.

At the hospital, SH was examined by Dr. Jack Coyne ("Dr. Coyne"). T.T. 87-88, 90. Dr. Coyne observed that SH's vaginal area was raw and red, indicating trauma. Dr. Coyne further observed a "notch" to the posterior region of SH's hymen, which was consistent with a slight tear of her hymen. Dr. Coyne concluded that the notch was consistent with sexual penetration. T.T. 91-92, 94, 108, 111.

2. Petitioner's Case

Petitioner testified that he did not commit the crimes with which he was charged. T.T. 154-155, 194-195. He testified that Thacker was a family friend and that they had been ...


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