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Miles v. Conway

September 22, 2010

PEARSON E. MILES, JR. PETITIONER,
v.
JAMES CONWAY, SUPERINTENDENT, ATTICA, CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Factual Background and Procedural History

Pro se petitioner Pearson E. Miles, Jr., ("Miles" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction following a jury trial in New York State Supreme Court, Erie County, on one count of first degree "course of sexual conduct against a child" (New York Penal Law ("P.L.") § 130.75 (former subsection (a))*fn1 and one count of "endangering the welfare of a child" (P.L. § 260.10(1)). The charges here arose from allegations that Miles, from December 1, 1997, until June 16, 1998, repeatedly sodomized and had anal sexual intercourse with the seven-year-old daughter ("D.C.") of his girlfriend. At the time of the alleged incidents, Miles was living with his girlfriend and her two children at her apartment Buffalo, New York. D.C. disclosed the abuse after her mother found dried blood on D.C.'s underwear while folding laundry, and then confronted her daughter about it. Trial on the two-count indictment commenced on January 11, 1999, and ended on January 19, 1999.

Following is a summary of the relevant trial testimony.

The victim, who was eight-years-old at the time of the trial, testified that she had known petitioner since September of 1997. The first occasion of abuse she could recall was on or about December 7, 1997. T.79-80, 210-12, 232, 246.*fn2 That night, petitioner had gotten D.C. out of bed and had brought her to the front of the house while everyone else was sleeping. T.233. On another occasion, petitioner tricked her by telling her that she needed to go to the basement to help wash clothes. T.214. Once they were downstairs, petitioner told her to take her pants down and bend over. He then put his "private" in her "rear", causing her pain. T.214-15.

D.C. related that petitioner did this to her on different days between December 1997 and June 1998. The assaults occurred in the basement, in the back hallway, in D.C.'s bedroom, in her mother's bedroom, and in the living room. T.214-221. D.C. recalled that on one occasion, petitioner put his tongue on her vagina, and that a few times he made her put her mouth on his penis. T.221-22. D.C. testified that on the occasions when petitioner anally sodomized her, he also touched his penis to her vagina. T.220-21. She described one instance of vaginal intercourse, stating that he had put his "private" inside her body. T.223. D.C. explained that she did these things because petitioner told her to. On occasion, petitioner would give her dollar bills after he sodomized her. T.215, 222. D.C. testified that no one else besides petitioner did the above-described sexual acts to her.

Tricia Cahee ("Cahee"), D.C.'s mother, met petitioner in the summer of 1997. Petitioner met her two children (D.C. and a younger son) in September of that year. T.386. Petitioner had moved in with Cahee and the children to a new apartment on Vernon Place in December 1997.

Cahee acknowledged that petitioner provided financial support for her and her children, buying them food and clothing. T.171. Petitioner would fix dinner for the family and drive Cahee to work. T.389. Cahee testified that petitioner used to baby-sit for the children, while she was in the house and also when she was out, so petitioner would routinely be alone with them. T.58-87, 191-92. Cahee testified that she had suspicions that some type of abuse was occurring while petitioner was watching her children. When she questioned her daughter about this possibility "not a whole lot of times . . . [m]aybe a few times," T.191, D.C. denied that anything was happening to her. Cahee recalled that "[p]ossibly once" she actually heard D.C. "screaming" while she was in one part of the apartment and D.C. and petitioner were in another. This was "maybe December of 1997," but she could not "really say a date." T.87. Despite Cahee's suspicions, she never followed up on them until six months later, in June of 1998, when she allegedly discovered a stain of dried blood on her daughter's underwear.

Cahee testified that she and petitioner had an "up and down" relationship that was not free from conflict, but that they worked their difficulties out. Cahee testified that on an unspecified occasion, the victim had told her that she did not want Cahee to continue her relationship with petitioner. T.88, 89-90, 128. According to Cahee, she and petitioner had engaged in anal sex on one occasion, at petitioner's suggestion. T.88-89, 150. However, Cahee said, she did not like it and they did not engage in that practice again. Cahee testified that the reason her relationship with petitioner began to deteriorate was because of the "things" petitioner wanted her to do. T.90. According to Cahee, petitioner had threatened her and "shook her" physically on one occasion, which she described as him starting to "get violent."T.91, 150. Cahee stated that when she had tried to end the relationship with him at one point, he started to harass her. T.92.

On June 16, 1998, the day that she later discovered the stained underwear, Cahee testified that petitioner had insisted on driving her to work first, before taking D.C. to school and Cahee's son to daycare. T.93-94. Cahee was dropped off first at 8:52 a.m., well ahead of her shift at work, which started at 10 a.m. T.467-68. She was so early that she had to wait just to get inside the building. T.98.

D.C. explained that on the morning of June 16, 1998, after they dropped her mother off at work, petitioner drover her brother to daycare. Petitioner drover her back to the apartment and brought her into her mother's bedroom, where he anally sodomized her. T.217-19, 220-22, 240-41, 236-37, 248-50. D.C. recounted that petitioner made her lie on her stomach on her mother's bed, and petitioner got on top of her and "the same thing" that he had done to her in the basement on an earlier occasion--that is, he inserted his penis into her anus. T.214-17. After sodomozing D.C., petitioner drove her to school. On the way, he threatened to do it "even harder" if D.C. told anyone about the incident. T.222-23, 245. D.C. testified that she was late for school and had to check in at the school office when she arrived; however, the defense pointed to school attendance records indicating that D.C. had not been late on that day. T.238-39, 242, 371-75, 377, 379.

D.C. explained that she had never told anyone that petitioner had hurt her before June 16th. She confirmed that her mother had, on occasion, hit her with a belt, and that she was afraid to tell her mother about the incidents involving petitioner. T.231-32, 250.

Cahee left work between 2 p.m. and 3 p.m. that day, arriving home before her children did. T.101. While at home doing laundry, Cahee observed what she thought was dried blood on D.C.'s underwear, which she had just taken out of the clothes-dryer. T103-04, 172, 225.

(Although Cahee testified that she did not see blood on D.C.'s underwear when she washed it on June 15th, T.185, D.C. claimed that she put her underwear in the wash on June 16th, T.243.) Cahee then confronted her daughter with this discovery and asked if petitioner or anyone else had touched her in a way that was not proper. T.104, 172, 244. Cahee testified that D.C. initially denied it but eventually explained that petitioner was the reason for the blood found in her underwear. T.104.*fn3 Cahee related that D.C. told her that she had been afraid to tell her about the abuse earlier. T.104-05, 225.

Cahee then contacted some of her family members and called the police. Petitioner moved out at some point during the afternoon of June 16, 1998. That evening D.C. was brought by her mother to the hospital where she was examined by Laurie Wallace, R.N. ("Nurse Wallace"), an emergency room nurse for the past six year, who had experience examining hundreds of children. T.40.*fn4 After asking D.C. what had happened, Nurse Wallace and Dr. Steif conducted a physical examination. See T.40-45, 49, 68, 76. Nurse Wallace noticed that D.C.'s rectal area was irritated, with some redness and some tearing. See id. According to Nurse Wallace, D.C. had a relatively large vagina for her age. Id. As part of the examination, Nurse Wallace took photographs of D.C.'s genital and anal areas; these images were introduced into evidence at trial and displayed for the jury by means of a slide projector. T.51-53, 68.*fn5

One week later, on June 23, 1998, Dr. Jack Coyne, the Medical Director of the Children's Advocacy Center and the Director of Pediatrics for Mercy Hospital, examined D.C. His examination included a review of the photographs taken during D.C.'s emergency room visit. Dr. Coyne observed in the photographs of D.C. three (3) anal tears or fissures, as well as redness in the girls rectal area. He considered these physical findings to be "not normal." T.339-41. From the nature of the injuries as depicted in the photographs, Dr. Coyne concluded that they were caused by some instrumentality "from the outside, going in" to the child's anus. T.341. Dr. Coyne opined that the anal tears (or fissures) depicted in the photographs were consistent with sexual abuse having occurred. T.340-42. Dr. Coyne's own examination of D.C. on June 23rd revealed that the fissures observed in the photographs had healed in the intervening week's time. Dr. Coyne opined that rapid healing was not unusual because the tissues in that area of the body healed very quickly. T.347. Dr. Coyne also noted that in cases where the attacker knows the victim, he or she will often use lubricants. T.347-51. Dr. Coyne admitted on cross-examination that he had no idea what caused the rectal injuries he observed in the victim. T.355.

With regard to the victim's hymen, Dr. Coyne observed that it was intact, regular, normal, and smooth, with no tears or discharges. T.345-46. Dr. Coyne could not explain why the emergency room doctor, Dr. Steif, had indicated, "absent hymen" in the section of the report dealing with the examiner's observations of the patient's genitalia.

The prosecution called Stefan Perkowski ("Perkowski") as an expert psychological witness. Perkowski testified that he was the Director of Child and Adolescent Treatment Services, providing mental health outpatient services for children throughout Erie County. T.267. Perkowski explained the five components of what he termed child sexual abuse accommodation syndrome and offered reasons why a child who had been sexually abused might not necessarily report the abuse as soon as it happened. T.278. Perkowski explained that a child might not reveal ongoing abuse because of the size difference between him or her and the adult, or because of other factors such as bribery by the adult or more overt forms of intimidation. T.281. Perkowski testified that a child might refrain from reporting the abuse in order to avoid creating a conflict between the offending adult and another adult caretaker, or might not believe that the caretaker had the fortitude or courage to do anything to halt the abuse. T.288-89. In addition, Perkowski said, the child could fear the person to whom the disclosure might otherwise be made, explaining that the child could suffer from "misplaced guilt" for having failed to come forward earlier.

T.293. Finally, Perkowski discussed delayed, conflicted, and/or unconvincing disclosures of abuse, as well as disclosure that was prompted by direct inquiry.

Petitioner testified that he met Cahee during the summer of 1997; he met her two children (D.C. and a younger son) in September of that year. T.386. He had moved in with Cahee to a new apartment on Vernon Place in or about December 1997, and contributed financially to household expenses. T.390, 406, 420. Petitioner testified that his and Cahee's sexual relationship commenced in February of 1998, and was mutually satisfactory. T.392. In contrast to Cahee's testimony, they had anal sex only one time, at her suggestion. Neither of them enjoyed it so they did not do it again. T.407. Petitioner testified that in either April or May of 1998, he learned that Cahee was pregnant with his baby and she wanted to end the pregnancy. T.393-94. The two of them did not agree on this issue and had heated arguments over it. T.394-95, 430.

Petitioner testified that his birthday was on June 16, 1998, and that was the day he decided to move out, citing irreconcilable problems in his relationship with Cahee. T.90-92, 102, 218, 242, 398-99, 431, 442. Petitioner claimed that, the week before, he had shared his decision with Cahee to leave, and Cahee tried to talk him out of it. T.431-33. Petitioner testified that on the morning of June 16th, he had, as was his routine, driven Cahee to work and the children to school and daycare. T.399-402, 426, 435. Later that day, during a phone conversation with Cahee, petitioner learned that she had gotten her "tubes tied" and that the pregnancy had been terminated. ...


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