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Brink v. Conway

March 2, 2010

RICHARD D. BRINK, PETITIONER,
v.
JAMES T. CONWAY, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se petitioner, Richard Brink ("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 May 13, 2003, in New York State, Supreme Court, Monroe County, convicting him, after a jury trial, of four counts of Rape in the Second Degree (N.Y. Penal Law ("Penal Law") § 130.30[1]), and four counts of Criminal Contempt in the Second Degree (Penal Law § 215.50[3]).

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

II. Factual Background and Procedural History

The rape charges arise out of four separate incidents that occurred during the months of November and December 2002, wherein thirty-seven-year-old Petitioner had sexual intercourse with fourteen-year-old A.H. ("A.H." or "the victim"). Petitioner had met A.H. through his girlfriend, Kelly Botcha ("Botcha" or "Petitioner's girlfriend"), who was a friend of A.H.'s.

The criminal contempt charges arise out of an Order of Protection that was issued against Petitioner, prohibiting him from contacting the victim. After the Order was issued, Petitioner called the victim repeatedly from jail in an attempt to convince her not to assist the prosecution. These conversations were recorded and later used against Petitioner at trial.

A Monroe County grand jury charged Petitioner with four counts of rape in the second degree and four counts of criminal contempt in the second degree. Petitioner plead not guilty and was tried before a jury.

At trial, A.H. testified as to the four separate acts of sexual intercourse between her and Petitioner, explaining that said acts were consensual and that she still cared for Petitioner and did not want to testify against him. Trial Transcript [T.T.] 165, 178-179, 181. On cross-examination, A.H. admitted to the following: that she was angry at Botcha because she had had a child with Petitioner; that she was afraid if she did not testify she would be arrested and put in jail; and that she had been in Family Court for failing to attend school. T.T. 179-180.

The People also presented evidence of another teenager, M.A., who testified that Petitioner had told her he had sex with A.H. T.T. 213-214.

Petitioner testified in his own defense. He denied that he engaged in sexual intercourse with A.H., claiming that she had made up the story out of anger and jealousy because A.H. and Botcha were lesbian lovers. T.T. 256-267.

Petitioner was found guilty as charged, and was sentenced to three to six years in prison on each rape count and one year on each criminal contempt count. The trial court ordered that the sentences it imposed on two of the rape counts run consecutively to the sentences it imposed on the remaining rape counts. Sentencing Minutes 11-13.

Petitioner appealed his judgment of conviction to the Appellate Division, Fourth Department, which was unanimously affirmed on June 9, 2006. People v. Brink, 30 A.D.3d 1014 (4th Dep't 2006). Leave to appeal to the New York State Court of Appeals was denied on August 2, 2006. People v. Brink, 7 N.Y.3d 810 (2006).

During the pendency of Petitioner's direct appeal, Petitioner filed two New York Criminal Procedural Law ("CPL") § 440.10 motions to vacate the judgment of conviction. Both of these motions were denied, and leave to appeal was also denied. See Decision and Order of the Supreme Court, Monroe County, Ind. No. 10-2003, dated 08/20/04; Decision and Order of the Supreme Court, Monroe County, Ind. No. 10-2003, dated 07/10/06.

This habeas petition followed.

III. General Principles Applicable to Habeas Review

A. The AEDPA Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).

A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id. This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).

Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state court's findings "will not be overturned on factual grounds ...


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