The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Orlando Roman ("petitioner") has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in Monroe County Supreme Court of various sex crimes, including, inter alia, Rape in the First Degree (N.Y. Penal L. ("P.L.") § 130.35(1)) and Sodomy in the First Degree (P.L. § 130.50(1)). Petitioner's conviction followed a bench trial before Justice Kenneth R. Fisher. He was subsequently sentenced to seventeen years imprisonment with five years of post-release supervision.
II. Factual Background and Procedural History
A. Trial, Verdict, and Subsequent Guilty Plea
From 1999 to 2000, petitioner had repeated instances of sexual contact with his stepdaughter, who was eleven and twelve-years old at the time. As a result, petitioner was charged in Monroe County with eleven counts of sexual crimes, including rape, attempted rape, sodomy, attempted sodomy, and sexual abuse. Added to the indictment was an additional charge of bribing a witness, arising out of petitioner's unsuccessful attempt to bribe his ex-wife to prevent his stepdaughter from testifying against him.
Following a bench trial, petitioner was convicted of eight of the first eleven counts: Sodomy in the First Degree (former P.L. § 130.50(1)), Sodomy in the Second Degree (P.L. § 130.45), two counts of Sexual Abuse in the First Degree (P.L. § 130.65(1)), Attempted Sodomy in the First Degree (P.L. § 110.00/130.50(1)), Attempted Rape in the First Degree (P.L. § 110.00/130.35(1)), Rape in the First Degree (P.L. § 130.35(1)) and Rape in the Second Degree (P.L. § 130.30). See Respondent's Appendix ("Appx.") S at 4-5. Petitioner was sentenced to concurrent terms of imprisonment, the longest of which being seventeen years, determinate, with five years of post-release supervision. Sentencing Tr. 14-17.
Petitioner subsequently pleaded guilty to Bribing a Witness (P.L. § 215.00), for which he was sentenced to two and one-third to seven years imprisonment. Appx. FF.
Prior to perfecting his direct appeals on the above two convictions, petitioner filed two pro se motions pursuant to N.Y. Crim. Proc. L. ("C.P.L.")§ 440.10/20 to set aside his convictions and sentences. Appx. A, H.
The first, filed on January 10, 2005, alleged that: (1) the evidence was procured in violation of his Fifth and Sixth Amendment rights; (2) the evidence was legally insufficient and the verdict was against the weight of the evidence; (3) his right to due process was violated; (4) the sentences were unduly harsh; (5) he was denied the effective assistance of counsel; (6) new evidence was discovered; (7) the indictment was multiplicitous; (8) the indictment failed to give proper notice; (9) the trial judge was biased; and (10) the prosecutor engaged in misconduct. Appx. A. The state court denied the majority of petitioner's claims pursuant to § 440.10(2)(b), which mandates denial where "[t]he judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal." Appx. D; see C.P.L. § 440.10(2)(b). The court also denied petitioner's claim of newly-discovered evidence on the merits. Appx. D at 5-6. To the extent that petitioner's allegations of ineffective assistance of trial counsel raised issues outside the record, those claims were also denied on the merits. Appx. D at 8-10. Leave to appeal the denial of petitioner's § 440.10 motion was denied by the Appellate Division on May 3, 2006. Appx. G.
Petitioner's second 440.10 motion was filed on November 20, 2006, which raised the following grounds: (1) the bribery plea was invalid; (2) additional newly-discovered evidence existed. Appx. H. The state court denied petitioner's motion pursuant to C.P.L. 440.10(2)(c)*fn1 and because petitioner's claim of newly-discovered evidence did not meet the statutory requirement of C.P.L. § 440.10(1)(g), which requires that such evidence must have been discovered "since the entry of a judgment based upon a verdict of guilty after trial . . . ." Appx. J at 2. Leave to appeal that decision was denied on June 25, 2007. Appx. N.
Petitioner appealed both convictions to the Appellate Division, Fourth Department. The first, relating to the bribery conviction (Appeal No. 1), alleged: (1) factual insufficiency of the plea allocution; (2) the conviction should be reversed if the rape convictions fail; and (3) unduly harsh and excessive sentence. Appx. EE.
With respect to the rape convictions (Appeal No. 2), petitioner raised the following issues for appeal: (1) improperly admitted Molineux evidence; (2) the verdicts were against the weight of the evidence; (3) wrongful denial of request for supplemental bill of particulars; (4) illegal period of post-release supervision; and (5) harsh and excessive sentence. Appx. R. Petitioner also filed a pro se supplemental brief, containing the following grounds: (1) the time frames in the indictment were unreasonably broad; (2) legally insufficient evidence; (3) the sexual abuse charges were improperly repetitive; and (4) the trial proof deviated from the indictment allegations. Appx. U.
The Appellate Division unanimously affirmed the convictions on September 28, 2007.
43 A.D.3d 1275 (4th Dept. 2007)
43 A.D.3d 1282 (4th Dept. 2007)
Petitioner then sought leave to appeal select issues to the New York Court of Appeals. Leave was denied on December 19, 2007.
Petitioner filed two error coram nobis applications in the Appellate Division, Fourth Department, alleging that his appellate counsel was ineffective on various grounds relating to each conviction and appeal. Appx. KK, LL. Those applications were denied. People v. Roman, 50 A.D.3d 1629 (4th Dept. 2008), lv. denied, 10 N.Y.3d 964 (2008).
Petitioner then brought the instant petition for habeas corpus, raising the following grounds for relief: (1) the trial court improperly admitted Molineux evidence; (2) the appellate court erred in denying petitioner's weight of the evidence claim; (3) the indictment failed to provide a sufficiently specific time frame; (4) the guilty plea was invalid; (5) petitioner's sentences violated his right to be free from cruel and unusual punishment; (6) the state court erred in denying petitioner's § 440.10 motion without a hearing and the appellate court erred in denying leave to appeal that denial; (7) constructive amendment of the indictment; (8) insufficiency of the evidence; (9) ineffective assistance of appellate counsel; and (10) the appellate court erred in denying petitioner's error coram nobis application and the Court of Appeals erred in denying leave to appeal that denial. Petition ("Pet.") ¶ 24(1)-(10) (Dkt. #4). Petitioner has also filed a Motion to Compel (Dkt. #34) and a Motion to Hold the Petition in Abeyance (Dkt. #35). For the reasons that follow, petitioner's motions for discovery and to hold the petition in abeyance are denied, and the petition for habeas corpus is dismissed.
A. General Principles Applicable to Federal Habeas Review
To prevail under 28 U.S.C. § 2254, as amended in 1996, a petitioner seeking federal review of his conviction must demonstrate that the state court's adjudication of his federal constitutional claim resulted in a decision that was contrary to or involved an unreasonable application of clearly established Supreme Court precedent, or resulted in a decision that was based on an unreasonable factual determination in light of the evidence ...