The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Petitioner, who is represented by counsel, has filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Supreme Court, Erie County, of Attempted Rape in the First Degree (N.Y. Penal L. §§ 110.00, 130.35 ), Sexual Abuse in the First Degree (§ 130.65) and Assault in the Second Degree (§ 120.05) following a jury trial before Justice Joseph Forma. Petitioner was sentenced to a determinate term of imprisonment of fifteen years on the attempted rape count, concurrent to two seven-year determinate terms for the sexual abuse and assault counts. R. 1680-1681.*fn1
II. Factual Background and Procedural History
Petitioner's conviction arose from an incident that occurred on August 4, 2003, wherein he attacked Sandra Handel ("the victim") in her apartment after the two had drinks together at a pub near Depew, New York. After the victim rejected petitioner's sexual advances, petitioner ripped the victim's shirt, pinned her on the ground, and struck her with his hands and a telephone when she attempted to fight him off by hitting him in the groin with her knee. After unsuccessfully attempting to pull the victim's pants completely off, he put his fingers in her vagina. Restraining the victim by sitting on her, he then asked if she would watch him masturbate. According to the victim's trial testimony, petitioner thrust his penis into her mouth, and she started choking. Petitioner then ejaculated on her face and hair, and hit her again with the phone. He left the apartment telling the victim, "tell Chris that he got what he deserved." R. 603-611. The attack was apparently retaliation against Chris Chojnacki, a close friend of the victim's who had recently been intimate with petitioner's on-again off-again girlfriend, Jeanette.*fn2 Petitioner knew the victim was acquainted with Chris from chatting with her on a few different occasions at a local bar, Page's, and at Gold's Gym, to which the victim belonged and where petitioner worked out from time to time. According to the victim, petitioner went by the name of "Chad". R. 602-14, 990-91.
The victim testified that after the assault she threw away her blouse and showered. She did not go to a doctor because she did not want to talk about it, and told her co-workers the following day that she accidentally fell, to explain the bruises on her face, which she tried to cover with make-up. The victim told the same story to a police officer that had come into the restaurant where she worked. Two days later, she disclosed to a close friend that she had been sexually assaulted, revealing bruises on the inside of her upper arms where the petitioner had pinned her to the floor. R. 613-14, 761-64, 1202-05.
John Garbo ("Garbo") lived in the apartment below the victim's. The night of the incident, Garbo heard the victim screaming, crying, and saying "please leave" and "stop it." He also heard "rumbling around" and then a loud bang on the floor. Garbo testified that he had never heard anything like that from the victim's apartment in the past, and did not call police or do anything because he did not want to get involved. R. 768-73.
On August 6, 2003, petitioner and Jeanette had gotten back together, and petitioner visited Jeanette at her house. That evening, Jeanette noticed that petitioner had cut and dyed his hair. He told her that he was angry and stressed out, and that he was "losing his friends" and "getting heavier because of a back injury and he couldn't work out." A few days later, petitioner again appeared agitated, and told Jeanette that he thought someone was following him. Petitioner began driving cars that did not belong to him. R. 971-72, 977. Jeanette testified at trial that petitioner had twice sat on her chest with his knees holding her upper arms down, while he masturbated and ejaculated on her. R. 987-88.
After the attack was reported to police and petitioner became a suspect, Cheektowaga detectives obtained a fifteen-year old yearbook photograph of petitioner and asked the victim to look at all of the senior pictures. The victim could not find petitioner in the yearbook. R. 252-53. She did, however, identify petitioner, whom she knew as Chad, as her attacker from two lineups. R. 631-34.
At the conclusion of the trial, the jury acquitted petitioner of the top count in the indictment, Sodomy in the First Degree, and found him guilty of Attempted Rape in the First Degree, Sexual Abuse in the First Degree, and Assault in the Second Degree. R. 5, 24-24. Petitioner was subsequently sentenced to concurrent terms of imprisonment of fifteen years for the attempted rape and seven years each for the assault and sexual abuse. R. 1680-81.
Petitioner appealed his conviction to the Appellate Division, Fourth Department, on the following grounds: (1) the trial court erred in admitting prejudicial evidence of prior, uncharged acts;
(2) the trial court erred in admitting hearsay testimony under the "prompt outcry" exception; (3) the victim's identification was improperly bolstered by a third party; and (4) the lineup was tainted by a photograph improperly taken by police without consent after a pretextual stop. Resp't Exhibits ("Ex.") B. The Appellate Division unanimously affirmed the judgment of conviction. People v. Felix, 32 A.D.3d 1177 (4th Dept. 2006). Petitioner sought leave to appeal to the New York Court of Appeals on the sole ground that the Appellate Division misapplied the "prompt outcry" exception to hearsay evidence. Ex. C. The New York Court of Appeals denied petitioner's application on December 19, 2006. People v. Felix, 7 N.Y.3d 925 (2006). Petitioner then sought a writ of error coram nobis in the Fourth Department, on the basis that his appellate counsel was ineffective for failing to raise the following issues on appeal: (1) the verdict was against the weight of the evidence and was not supported by legally sufficient evidence; and (2) the sentence was harsh and excessive. Ex. D. That motion was summarily denied by the Appellate Division on February 1, 2008. People v. Felix, 48 A.D.3d 1212 (4th Dept.), lv. denied, 10 N.Y.3d 862 (2008).
This habeas petition followed, in which petitioner raises the same grounds as he did on direct appeal and in his application for writ of error coram nobis. Petition ("Pet.") at 6-10. For the reasons that follow, the Court finds that ...