The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner William J. Coke, Jr., ("petitioner") has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction of three counts of Rape in the First Degree (N.Y. Penal L. § 130.35); four counts each of Rape in the Second Degree (N.Y. Penal L. § 130.30) and Sodomy in the Second Degree (Penal L. § 130.45); and one count each of Assault in the First Degree (Penal L. § 120.05); Attempted Rape in the Second Degree (Penal L. §§ 110.00, 130.30) and Sexual Abuse in the Third Degree (Penal L. § 130.60). Petitioner was convicted following a jury trial in Niagara County Court before Judge Peter Broderick on February 11, 2004, and was sentenced to concurrent prison terms, the longest of which is twenty-five years with an additional five years of post-release supervision.
II. Factual Background and Procedural History
Petitioner's convictions arise out of several incidents wherein petitioner had sexual contact with his twin step-daughters when they were eleven and twelve years-old. During the two-day trial, the jury heard testimony from both victims, their grandmother, an expert in child sexual abuse, and a detective with the North Tonawanda Police Department, to whom petitioner gave a statement admitting he engaged in sexual conduct with his step-daughters. Trial Tr. 249-273; 295-300; 307-323; 347-356; 369-385. Petitioner did not present any witnesses, nor did he testify at trial.
Following his conviction, petitioner filed a direct appeal, through counsel, to the Appellate Division, Fourth Department, which unanimously affirmed his conviction. People v. Coke, 31 A.D.3d 1188 (4th Dept. 2006); lv. denied, 7 N.Y.3d 811 (2006).
C. Post-Conviction Relief
Petitioner brought three motions pursuant to N.Y. Crim. Proc. Law ("C.P.L.") § 440.10 to vacate his judgment of conviction. The first alleged ineffective assistance of trial counsel on numerous grounds. That motion was denied because petitioner's appeal was pending, and, in any event, trial counsel provided constitutionally adequate representation. See Decision and Order, No. 2003-022, dated 12/9/2004 (citing C.P.L. § 440.10(2)(b)).
On November 15, 2006, petitioner filed a second § 440.10 motion, arguing that his conviction was a result of an improperly-obtained statement and biased prosecution by the District Attorney and the police. That motion was denied without a hearing by the County Court for failing to raise the issues on direct appeal, failing to raise them in his previous § 440.10 motion, and for failing to provide sworn allegations of fact. See Decision and Order, No. 2003-022, dated 12/18/2006.
His final motion for vacatur raised the following claims: (1) petitioner's statements were obtained by police in a manner that violated his constitutional rights; and (2) the victims, who both testified at trial, were not credible and fabricated the allegations against petitioner. See Mot. dated 3/9/2009. The County Court again denied petitioner's motion on procedural grounds and on the merits. See Decision and Order, No. 2003-022, 4/30/2009.
Petitioner filed his original petition for habeas corpus pursuant to 28 U.S.C. § 2254 with this Court on December 11, 2006. (Dkt. #1). The respondent filed an answer and opposing memorandum. (Dkt. ## 3, 4). Petitioner filed a second petition on March 1, 2007, which this Court ordered to be treated as an amended petition. (Dkt. #7). Accordingly, respondent filed an answer and opposing memorandum to the amended petition. (Dkt. ## 10, 11). Next, petitioner submitted a series of letters to the Court, seeking to hold his petition in abeyance pending the exhaustion of his third § 440.10 motion in state court, and to amend his existing petition.*fn2 (Dkt. #32). The Court denied petitioner's motion for stay as moot, and granted the motion to amend/correct the amended habeas petition. (#36). Pursuant to the Court's order, the respondent submitted an answer and supporting memorandum to the second amended petition. (Dkt. ## 37, 39). For the reasons that follow, the Court finds that petitioner is not entitled to habeas relief, and the action is dismissed.