The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner Robert Scott ("petitioner"), who is represented by counsel, has brought a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction of Rape in the First Degree (N.Y. Penal L. § 130.35(1)) and two counts of Sexual Abuse in the First Degree (N.Y. Penal L. § 130.65(1)). Petitioner's conviction was entered in Genesee County Court following a jury trial before Judge Robert C. Noonan. The court sentenced petitioner to aggregate, determinate terms of imprisonment totaling ten years, with five years of post-release supervision. Sentencing Mins. at 22.
II. Factual Background and Procedural History
Petitioner's convictions arise out of two separate incidents, wherein petitioner forcibly raped one woman (Elizabeth H.) and sexually abused another (Mary S.)*fn1 after luring them to his Batavia, New York home using a newspaper "help wanted" ad seeking a live-in housekeeper. Petitioner was a married, 45-year-old businessman dealing in real estate with residences in California and New York. Trial Tr. 20-21, 28-45, 76-125.
Following the crimes, Elizabeth H. met with a Batavia Police detective and agreed to return to petitioner's home to collect her belongings while wearing a body wire. Trial Tr. 98-99, 262-63. The same detective also arranged for a police officer in California to interview petitioner while wearing a body wire. Hr'g Mins. dated 7/11/2003 at 8-15; Trial Tr. 190-91. Both tapes were played for the jury at trial.
Petitioner's defense was that he engaged in consensual sexual contact with both women, and that no force was involved. Trial Tr. 21-22. He did not testify on his own behalf at trial.
Through counsel, petitioner filed a direct appeal to the Appellate Division, Fourth Department, which unanimously affirmed the judgment of conviction. People v. Scott, 12 A.D.3d 1144 (4th Dept. 2004); lv. denied, 4 N.Y.3d 767 (2005).
Petitioner then filed a motion to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. L. § 440.10 ("440 motion") on the grounds that, inter alia: (1) his trial counsel was ineffective for failing to advise petitioner that he had the right to testify; and (2) there existed newly discovered evidence that one of the victims, Mary S., consented to sexual contact. See Respondent's Exhibits ("Ex.") G. Following a hearing on petitioner's 440 motion ("440 hearing"), the state court issued a written order rejecting petitioner's claims. Ex. M. Leave to appeal that decision was denied by the Fourth Department on December 21, 2007. Ex. Q. Petitioner filed the instant petition for habeas corpus on January 22, 2008, claiming that: (1) petitioner was denied due process when the state court erroneously denied his 440 motion; (2) ineffective assistance of trial counsel; and (3) the evidence was legally insufficient to support the conviction for first-degree sexual abuse. Petition ("Pet.") ¶ 22(A)-(C); Petitioner's Memorandum of Law ("Pet'r Mem.") at Points I-III. (Dkt. ## 1,18).
For the reasons that follow, I find that petitioner is not entitled to the writ, and the petition is dismissed.
A. General Principles Applicable to Federal Habeas 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 ...