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Thomas v. Conway

June 7, 2010

BRIAN A. THOMAS, PETITIONER,
v.
JAMES CONWAY, SUPERINTENDENT, ATTICA 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 Brian A. Thomas ("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 August 30, 2004, in New York State, County Court, Wayne County, convicting him, after a bench trial, of Course of Sexual Conduct Against a Child in the First Degree (N.Y. Penal Law ("Penal Law") § 130.75[1][a]) and Endangering the Welfare of a Child (Penal Law § 260.10[1]).

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

II. Factual Background and Procedural History

The charges arose out of sexual conduct between Petitioner and his girlfriend's four year old daughter ("the victim")*fn1 over an extended period of time. From September 2001 to December 2001, Petitioner lived with the victim, her seven year old brother, and the victim's mother at the victim's mother's apartment in the Town of Sodus, New York. Petitioner stayed home with the children while the victim's mother went to work. Trial Transcript [T.T.] 99-106.

In January 2004, the victim complained to her mother, describing several acts of sexual abuse that she had suffered at the hands of Petitioner over an extended period of time. Shortly thereafter, the victim's mother called the police and took the victim to the doctor. T.T. 112-115.

On January 23, 2004, Petitioner was indicted by a Wayne County Grand Jury and charged with Course of Sexual Conduct Against a Child in the First Degree*fn2 and Endangering the Welfare of a Child.

Petitioner waived a jury trial and a bench trial was held before the Honorable John Nesbitt on May 26, 2004.

The People called various witnesses, including two expert medical witnesses.

The victim testified that, over a period of time, Petitioner had engaged in various sexual acts with her, and had threatened to "beat her" if she told her mother. T.T. 267-288.

The defense called twelve witnesses who testified to the effect that Petitioner and the victim's mother had a volatile relationship, fought often, and that Petitioner did not maintain continuous contact with the victim's mother during the period in question. T.T. 358-465.

Petitioner testified on his own behalf and denied all of the allegations against him. T.T. 515-518.

On June 9, 2004, Petitioner was found guilty as charged and sentenced to a determinate term of 20 years imprisonment. Sentencing Minutes [S.M.] 22-23.

Petitioner appealed his judgment of conviction to the Appellate Division, Fourth Department, which was unanimously affirmed on March 17, 2006. People v. Thomas, 27 A.D.3d 1075 (4th Dept. 2006). Leave to appeal to the New York Court of Appeals was ...


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