The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se petitioner Brian N. Woodring ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered July 7, 2006, in New York State, County Court, Allegany County, convicting him, after a bifurcated jury trial, of Promoting a Sexual Performance by a Child (N.Y. Penal Law ("Penal Law") § 263.15) and Endangering the Welfare of a Child (Penal Law § 260.10); and Burglary in the Third Degree (Penal Law § 140.20), Criminal Possession of Stolen Property in the Fourth Degree (Penal Law § 165.45), and Petit Larceny (Penal Law § 155.25).
For the reasons stated below, habeas relief is denied and the petition is dismissed.
II. Factual Background and Procedural History
Sometime in September 2004, Petitioner, who was then 19-years-old, made a video of himself holding down his 12-year-old brother, D.W.,*fn1 and slapping D.W.'s mouth with Petitioner's penis. Petitioner showed this video to his friend, Jeremy Forester ("Forester"), who then told the police. The police asked Forester to obtain a copy of the video, if he could. Forester asked Petitioner for a copy of the video and Petitioner "instant messaged" the video to Forester over the internet.
Sometime in May 2003, Petitioner left open a window to the Canaseraga Public Library, where he was performing community service. After hours, he then entered the library and stole two laptop computers. Based on information provided by Forester and Petitioner's ex-girlfriend, the Allegany police executed a search warrant at Petitioner's home on October 12, 2004, and recovered the laptop computers.
On July 5, 2005, an Allegany County grand jury returned Indictment No. 05-055, charging Petitioner with one count each of Promoting a Sexual Performance of a Child (Penal Law § 263.15), Endangering the Welfare of a Child (Penal Law § 260.10), Burglary in the Second Degree (Penal Law § 140.25), Grand Larceny in the Fourth Degree (Penal Law § 155.30), and Criminal Possession of Stolen Property in the Fourth Degree (Penal Law § 165.45 ).
B. The Motion to Suppress Physical Evidence
Petitioner moved to suppress the evidence recovered pursuant to the search of his home in Burns, New York, on the grounds that the warrant was issued without probable cause. By Decision and Order dated November 30, 2005, the county court denied Petitioner's motion to suppress. See Resp't Exs. A-B.
The county court bifurcated the charges for trial purposes, and, on March 14, 2006, the matter proceeded to trial on the first two counts (Promoting a Sexual Performance of a Child and Endangering the Welfare of a Child).
Forester was a friend of Petitioner's, and was at Petitioner's house in Canaseraga, New York in the summer of 2004 when Petitioner showed Forester a video "depicting himself and his younger brother." Trial Trans. [T.T.] of 03/15/06 33-34, 36. This video showed Petitioner holding down his brother, D.W., who was 12-years-old at the time, and slapping D.W.'s mouth with Petitioner's penis. Id. at 40, 56, 73-74.
In late September, Forester told his high school's resource officer, Officer Robin Humphrey ("Officer Humphrey"), about the videotape, and told Forester to get a copy of the video. Id. at 37, 44, 51. Forester contacted Petitioner, via online "instant messaging service," and asked Petitioner to send him the video. Id. at 34-35. When Forester received the video on September 22 or 23, 2004, he downloaded in from America Online ("AOL") onto a CD. Forester then gave the CD to Officer Humphrey the next day, who turned it over to New York State police. Id. at 35, 37, 39-40, 49, 54-55. Investigator William Jones viewed the video and then interviewed D.W. Id. at 54-56. D.W. told Investigator Jones that Petitioner "intimidated" him into participating in videos that Petitioner would make. Id. at 65-66.
At trial, D.W. testified that Petitioner had videotaped him alone, in front of a blue screen, and then had later superimposed the video of Petitioner slapping D.W. on the mouth with Petitioner's penis. D.W. also denied that the video showed Petitioner grasping D.W.'s hair to hold him down, insisting that this was also superimposed. Id. at 62, 66-69, 72-74.
The video was published to the jury. Id. at 77-78.
Petitioner did not present any evidence on ...