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Higgins v. Artus

August 6, 2010


The opinion of the court was delivered by: Scullin, Senior Judge



A. Proceedings in State Court

The record reflects that the victim, T.W.,*fn1 began dating Petitioner in May, 2001. See Transcript of Trial of Michael D. Higgins dated July 11, 2005 ("Trial Tr."), at 453. In the summer of 2003, however, the two had what T.W. described as an "extremely horrible" fight; and she asked Petitioner to leave her home. See id. at 459. Petitioner then moved to Maine; however, the two still kept in contact with one another. See id. at 459-60.

In July, 2004, Petitioner moved back to upstate New York; and, although he and T.W. did not live together upon his return to New York, the two soon thereafter resumed their prior relationship. See id. at 460-63.

On the evening of December 18, 2004, approximately seven to ten days after the two had their "final good moment," see id. at 463, Petitioner called T.W. at the local tavern where she worked as a part-time waitress/bartender and asked her what time the kitchen closed and whether he could come by her place of employment. See id. at 464-67. T.W. informed him that he could "do whatever [he] want[ed]" with respect to coming to the tavern; and he, in turn, assured her that he would not "cause any problems." See id. at 467. When T.W. later saw Petitioner enter the tavern, she and her friend Tina decided it was "a good time to exit" and go to a party at another location to which they had both been invited. See id. at 468-69. The two then decided to leave the tavern through the kitchen so as to avoid a confrontation with Petitioner. See id. at 469.

Later that evening, T.W. and Tina returned to the tavern; and soon thereafter Petitioner offered to buy T.W. a drink. See id. at 471. She refused; and Petitioner was eventually forced to leave the tavern because of his behavior. See id. at 473. At approximately 2:30 a.m. on December 19, 2004, Petitioner called T.W. and declared that he could not "believe [she] had [him] thrown out of" the tavern because he had "never been thrown out of anywhere in [his] life." See id. at 474.

Later that morning, Petitioner began repeatedly calling T.W. and complaining about the fact that he had been removed from the tavern. See id. at 476. During one of these calls, Petitioner informed T.W. that he was coming to her home to see her. See id. at 476-77. T.W. told him not to come to her house; however, he replied, "too late, I'm pulling in." See id. at 477. Petitioner then came to the door and demanded that T.W. allow him inside. See id. When T.W. cracked the door open, Petitioner forced his way inside, knocking her backwards into her home. See id. Once inside, Petitioner held T.W. down with his fingers wrapped around her throat and chastised her for having him physically removed from the tavern. See id. at 478. He then got a glass of water and soon thereafter threw the water in her face. See id. at 479. The confrontation continued when T.W. went outdoors for a brief period of time, see id. at 479-81; and, when the two went back inside her home, Petitioner formed the shape of a gun with his hand and said, "I can kill you, I'll kill myself, I'll kill you, then I'll kill myself, it doesn't matter anymore." See id. at 482.

When Petitioner subsequently saw T.W. holding her car keys, he demanded to know where she was going; but, before she could answer, he pushed her onto the kitchen floor, knocking her keys away. See id. He then grabbed her and carried her upstairs to her bed. See id. at 482-83. When she tried to get up, he became angry and kicked in the louver doors on her bedroom closet. See id. at 483. He then grabbed her pajama bottoms, ripped them down the seam, and told her that he was the only one with whom she could have relations. See id. When he unbuckled his pants, T.W. pleaded with him to stop; however, he ignored her pleas and, instead, attempted to place his penis in her vagina. See id. at 484. When that proved unsuccessful, he forced his fingers into her vagina without her consent and then sat with his knees on her shoulders and tried to force his penis into her mouth; however, she kept her lips closed in an attempt to prevent him from fully accomplishing that act. See id. at 485-86. After Petitioner ejaculated while on top of T.W., he "took out a towel and cleaned himself off." See id. at 486-87. Soon thereafter, Petitioner left T.W.'s home.

Sometime after Petitioner had left T.W.'s residence, he called her to apologize for his conduct and advised her that he was "sick about what happened." See id. at 487. Although he initially began crying, he eventually became angry with her and threatened to kill her and himself. See id. at 487-88.

T.W. testified that, despite the assault, she was still concerned about Petitioner possibly taking his own life so she went to his home "to make sure he hadn't done anything wrong to himself." See id. at 490-91. Once she was there, she "made a deal with him," whereby she agreed to accept a bracelet that he had previously purchased for her in exchange for his promise "not to do anything to himself." See id. at 491. After that meeting, Petitioner repeatedly called T.W. and left messages on her answering machine in which he accused her of being a liar and a "bad person." See id. at 495-98. He became "madder and madder" and eventually left a message in which he said, "remember [T.W.], tick, tick, tick." See id. at 499. That final message, which Petitioner left on T.W.'s answering machine on December 21, 2004, prompted T.W. to call the Cobleskill Police Department to report what Petitioner had done to her on December 19, 2004, as well as Petitioner's subsequent telephone calls and messages to her residence. See id.

As a result of the foregoing, on January 28, 2005, a Schoharie County grand jury returned a multi-count indictment against Petitioner, charging him with (1) criminal sexual act in the first degree, in violation of New York Penal Law § 130.50(1); (2) attempted rape in the first degree, in violation of Penal Law §§ 110 and 130.35(1); (3) two counts of sexual abuse in the first degree, in violation of § 130.65(1); (4) forcible touching, in violation of Penal Law § 130.52; (5) second degree unlawful imprisonment, in violation of Penal Law § 135.05; (6) fourth degree criminal mischief, in violation of Penal Law § 145.00(1); and (7) third degree menacing, in violation of Penal Law § 120.15. See Dkt. No. 11, Exhibit "E" ("Indictment").

Petitioner's jury trial on these charges commenced on July 11, 2005, in Schoharie County Court, with County Court Judge George R. Bartlett, III presiding. At the conclusion of the trial, the jury acquitted Petitioner of the attempted rape, first degree sexual abuse, and criminal mischief charges but found him guilty of criminal sexual act in the first degree, forcible touching, second degree unlawful imprisonment, and third degree menacing. See Trial Tr. at 1347-51. On November 16, 2005, Judge Bartlett sentenced Petitioner to twelve and one-half years of imprisonment on the criminal sexual act conviction and lesser, concurrent terms on the remaining convictions. See Transcript of Sentencing of Michael D. Higgins dated November 16, 2005, at 19-20.

Petitioner appealed the foregoing to the New York State Supreme Court, Appellate Division, Third Department; on November 8, 2007, that court affirmed Petitioner's convictions and sentences in all respects. See People v. Higgins, 45 A.D.3d 975 (3d Dep't 2007). On February 29, 2008, the New York Court of Appeals denied Petitioner's application for leave to appeal. See People v. Higgins, 10 N.Y.3d 766 (2008). Petitioner did not file any other state- court challenges to his convictions other than his direct appeal. See Dkt. No. 1 at ¶ 10.

B. The Current Action

Petitioner filed his habeas petition pursuant to 28 U.S.C. § 2254 on September 12, 2008. See Dkt. No. 1. In that pleading, Petitioner asserted that he was entitled to habeas relief because (1) the jury's verdict was "not supported by the evidence presented" and against the weight of the evidence; (2) the County Court erred in allowing the prosecution to present a rebuttal witness; and (3) the imposed sentence was harsh and excessive. See Dkt. No. 1, Grounds One through Three.

On February 26, 2009, Respondent filed, under seal, a memorandum of law in opposition to Petitioner's pleading, see Dkt. No. 10, together with various state-court records relating to Petitioner's convictions, see Dkt. No. 11. Respondent argued that all of Petitioner's claims lacked merit. See Dkt. No. 10.

On April 10, 2009, Petitioner filed a traverse in further support of his request for federal habeas ...

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