The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
On or about May 29, 2009, Petitioner Jose Leon ("Petitioner" or "Defendant"), pro se, submitted a Petition pursuant to 28 U.S.C. § 2254, challenging a judgment of conviction of Sexual Abuse in the First Degree and Endangering the Welfare of a Child, and his sentence of 15 years to life, based on his status as a persistent violent felony offender. Respondent James Conway, Superintendant of Attica Correctional Facility, by and through counsel, the office of the Attorney General of the State of New York ("Respondent"), responded to the pro se petition by a declaration and memorandum of law in opposition dated April 23, 2010.*fn1 Petitioner's petition is denied for the reasons stated below.
On August 19, 2004, Petitioner was convicted by a jury in the New York State Supreme Court, New York County, indictment 979/04 on three counts of Sexual Abuse in the First Degree and one Count of Endangering the Welfare of a Child.*fn2 On December 2, 2004, Petitioner was sentenced as a persistent violent felony offender pursuant to New York Penal Law § 70.08, to an aggregate term of 15 years to life.
A. Factual Background*fn3
In February 2004, LP and her 13 year-old daughter KA*fn4 lived in Manhattan. (See Transcript of Trial held Aug. 16-18, 2004 ("Trial Tr.") at 50-51.) LP and Petitioner were close friends to the extent that LP would give Petitioner a key to her home so that Petitioner could walk LP's dog. (Id. at 245, 250.) KA regarded Petitioner as an uncle. (Id. at 53, 246.)
On the afternoon of February 3, 2004, KA attended her after-school program and then met her mother at her office. (Id. at 248-49.) During a work break, LP and KA picked up dinner and went to their apartment. (Id. at 249-50.) LP had arranged for a babysitter to watch KA so that LP could return to work, but the babysitter was running late. (Id. at 120, 249-252.) LP left the apartment to return to work but, on her way out of the building, ran into Petitioner. (Id. at 250-51.) Petitioner had a set of keys and planned to eat dinner at LP's apartment. (Id.) LP returned to the apartment with Petitioner to avoid leaving Petitioner alone with her daughter, but she eventually left with the expectation that the babysitter would arrive shortly thereafter. (Id.)
After LP left, Petitioner sat in the kitchen eating and looked at KA in a way that made her feel uncomfortable. (Id. at 55.) KA went to her room, but came back out again when Petitioner asked for a rubber band. (Id.) Petitioner was at the kitchen table counting money. (Id. at 56.) KA went to the living room to watch television when Petitioner asked whether KA would like to do something on the "down low" and make money on the side. (Id.) Petitioner then approached KA and started kissing her on her lips. (Id. at 56-57.) KA moved away and said that she was not "one of his little ho's." (Id.) Petitioner continued kissing KA on her mouth and cheeks. (Id.) Petitioner then put his hands on KA's shoulders and walked her to her mother's room from behind. (Id.) Petitioner's grip on KA's right shoulder hurt her. (Id. at 57-58.) Once in the room, Petitioner laid KA down on the bed on her stomach and turned off the lights. (Id. at 59.) Petitioner rubbed his "penis area" on KA's clothed buttocks. (Id.) Petitioner tapped KA to get up and started rubbing her breasts with his hands. (Id. at 60.) He then pulled down her shirt and sucked on her breasts. (Id.)
At this point, KA pretended like she heard somebody knocking at the door in order to get away. (Id. at 61.) KA opened the door and saw a couple of her male teenage friends in the hallway. (Id. at 61-62.) KA asked them if her next door neighbor, Margie, had knocked on the door and tried to get their attention. (Id.) KA did not tell them what was happening because she wanted to speak to an adult who could "really handle it." (Id. at 61-63.) Petitioner told KA to come back inside. (Id. at 71.)
Once KA went back into the apartment, Petitioner went behind KA and led her by the shoulders into the bathroom. (Id. at 71-72.) In the bathroom, Petitioner placed his hands on KA's waist and said, "Don't worry. You just have to watch." (Id. at 73.) Petitioner pulled out his penis over the sink and "jerked off" while touching KA's buttocks and kissing her lips and neck. (Id. at 73-74, 98-99.) He said to KA, "Look I'm about to burst," and then ejaculated into the sink. (Id. at 73-74, 99.) He then pulled up his pants and told KA to call her mother. (Id. at 74.) KA called her mother, but did not tell her what happened because she was scared that Petitioner would hurt her or her mother. (Id. at 75-76.) Petitioner also spoke with LP. (Id. at 74.) After he hung up the phone, he told KA, ".you know what will happen if anybody finds out about me and you," and left the apartment. (Id. at 74-75.)
While waiting for the babysitter to arrive after Petitioner left, KA rinsed out the bathroom sink, took a bath, and brushed her teeth. (Id. at 76-77.) The babysitter eventually arrived, but KA did not say anything to her about Petitioner and what happened. (Id. at 77.) She was asleep when her mother got home. (Id. at 78.) LP washed KA's clothing either that night or the following morning. (Id. at 254-55.) LP also used the bathroom sink that night. (Id. at 255.)
The next morning, KA did not say anything about the previous night to her mother. (Id. at 78-79.) At school, KA told a classmate what the Petitioner had done. (Id. at 80.) The classmate convinced KA to tell the sex education counselor at her after-school program. (Id.) After speaking with the counselor, KA went home. (Id. at 81.) The counselor and a social worker from the after-school program went to KA's apartment. (Id.) They called LP and asked her to leave work early. (Id.) Once LP arrived, KA spoke to her about what happened. (Id. at 82.) LP called the police. (Id.)
LP and KA also met with Detective Gutierrez of the Manhattan Special Victims Squad on February 4, 2004. (Id. at 82-83, 452.) The detective did not notice a bruise on KA's shoulder. (Id. at 508-09.) The detective also collected the clothes that KA had worn which were washed and drying on the radiator to be tested for biological evidence, but no such evidence was found. (Id. at 83, 158-59, 550-551.) Crime Scene officers took swabs from the sink, but no semen was detected. (Id. at 469-70, 473-74, 503, 551.) The detective located and arrested Petitioner on February 6, 2004. (Id. at 454.) On February 10, 2004, KA testified in the grand jury and had a photograph taken of a yellow bruise on her shoulder from the incident. (Id. at 100-01.)
On August 19, 2004, after a five day trial and three hours of deliberations, the jury convicted Petitioner of three counts of Sexual Abuse in the First Degree and one count of Endangering the Welfare of a Child, and acquitted Petitioner of Unlawful Imprisonment. (Id. at 916-20.) On December 2, 2004, the sentencing judge found Petitioner to have been convicted of two prior violent felonies, manslaughter in the first degree, in 1976 and in 1983 (Transcript of continued Sentencing Hearing held Dec. 2, 2004, ("12/2/04 Tr.") at 41-46, 55-56), and Petitioner was sentenced as a Persistent Violent Felony Offender pursuant to New York Penal Law § 70.08 to 15 years to life on each sexual abuse count, and one year on the endangering the welfare of a child count, all to run concurrently. (Id. at 57-59.)
In June 2006, Petitioner appealed his conviction to the Appellate Division, First Department. His appellate counsel, Jonathan Kirshbaum, Esq. and Robert S. Dean, Esq., raised three points: (1) that prosecutorial misconduct deprived the appellant of a fair trial; (2) that the sentencing court violated Petitioner's Sixth Amendment right of confrontation under Crawford v. Washington, 541 U.S. 36 (2004), at the predicate felony hearing; and (3) that Petitioner's adjudication and sentence pursuant to New York's persistent violent felony offender statutes were unconstitutional under Apprendi v. New Jersey, 530 U.S. 455 (2000), and the Equal Protection Clause. (Ex. A at 2.)*fn5 Appellee, the New York County District Attorney, filed its opposition brief to Petitioner's direct appeal in December 2006. (Ex. B.) On January 25, 2007, the Appellate Division unanimously affirmed Petitioner's judgment of conviction:
The challenged portion of the prosecutor's examination of a witness and of the prosecutor's summation did not deprive defendant of a fair trial, and the court properly exercised its discretion in denying defendant's mistrial motions made in regard to these matters. To the extent that any aspects of the prosecutor's conduct could be viewed as improper, the court provided suitable curative actions that were sufficient to prevent any prejudice (see ...