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Terry Moore v. Robert A. Kirkpatrick

March 30, 2011

TERRY MOORE, PETITIONER,
v.
ROBERT A. KIRKPATRICK RESPONDENT.



The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge Rochester, New York

DECISION AND ORDER

I. Introduction

Pro se petitioner Terry Moore ("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 May 6, 2005, in New York State, Supreme Court, Erie County, convicting him, after a jury trial, of Sodomy in the First Degree (N.Y. Penal Law ("Penal Law") § 130.50 [4]), Attempted Rape in the First Degree (Penal Law § 110.00, 130.50 [4]), four counts of Sexual Abuse in the First Degree (Penal Law § 130.65 [1]), five counts of Endangering the Welfare of a Child (Penal Law § 260.10 [1]), and three counts of Forcible Touching (Penal Law § 130.52 [2]).*fn1

For the reasons stated below, habeas relief is denied and the petition is dismissed.

II. Factual Background and Procedural History

On August 2, 2002, twelve-year-old Alexis Skoczylas ("Skoczylas" or "the victim") went to Petitioner's home at 19 Hecla Street in the City of Buffalo, New York with her parents. Cherie Loschiavo ("Loschiavo"), the victim's mother, had been friends with Petitioner's wife, Anna Moore, since childhood and their families were friendly. Petitioner and his wife were in the process of moving, and Loschiavo and Skoczylas were going to help them move. Petitioner's stepdaughter, Daniella Gorman ("Gorman"), was friendly with Skoczylas, and Skoczylas was given permission to stay overnight. Trial Trans. [T.T.] 54-57. Skoczylas went to sleep on a couch in the living room and was awakened by Petitioner licking her leg. T.T. 106-112, 169. She kicked Petitioner and subsequently got up. Petitioner then grabbed her wrist, pulled her first into the kitchen, and then into an adjoining garage apartment where he proceeded to push her on a couch. T.T. 113-115, 117-119. Petitioner touched her, offering her money for sex, stating that he had a condom. When she refused, he pulled her shorts down and touched her chest and thigh. Petitioner's penis and tongue also touched her vagina. T.T. 120-126. Petitioner put his hand on her mouth and threatened to kill her if she said anything. T.T. 127-128.

After August 2, 2002, Skoczylas went to Petitioner's home to swim in the pool with Petitioner's stepdaughter. While Skoczylas was changing her clothes in the bathroom, Petitioner walked in and touched her breast and rear, kissing her. When she resisted, he told her not to say anything. On another occasion in August 2002 when Skoczylas went to Petitioner's home to swim, Petitioner came into the bathroom and touched her breast, rear and vagina. Petitioner stopped this touching when his wife came into the nearby kitchen. T.T. 128-135.

In November of 2003, Skoczylas was at the home of Richard Frank, her uncle, on St. Lawrence Street in the City of Buffalo, and Petitioner was also there. T.T. 138-139. When her uncle left her alone with Petitioner, Petitioner, who was sitting on a couch with a pillow on his lap, lifted up the pillow and showed her that he had an erection that showed through his clothes. T.T. 139-140.

In December of 2003, Petitioner came to Skoczylas's home on Linden Avenue in the City of Buffalo, where she was, at one point, left alone with him. Petitioner started to touch her breasts, over and under her clothes, and licked her neck. Petitioner stopped when she said she was calling the police. Thereafter, Petitioner left, and Skoczylas did not call the police. Around Christmas 2003, she told her uncle about the incidents. T.T. 141-147.

At trial, Loschiavo testified for the prosecution. She testified that she brought her daughter to Petitioner's house on August 2, 2002 and let her sleep over. She further testified that she went to Petitioner's home with her daughter again in August 2002. T.T. 49, 52-58.

Jan Frank, Loschiavo's sister, testified for the prosecution. She testified that she had known Anna Moore since childhood, and knew Petitioner through his wife. T.T. 81. She testified that she was at 19 Hecla Street on August 2, 2002 and that her sister and Skoczylas were also there. T.T. 86.

Richard Frank, also a witness for the prosecution, testified that Petitioner and the victim were at his house in November 2003, and that the victim told him, in December 2003, of incidents of a sexual nature that occurred between her and Petitioner. T.T. 249-250.

Stefan Perkowski ("Perkowski"), a psychiatric social worker who did not interview the victim, also testified for the prosecution. He testified generally concerning child abuse accommodation syndrome, explaining why a child would delay disclosure of an incident or incidents of sexual abuse. T.T. 269-270, 278, 284-289, 292, 295-296, 301.

Anna Moore testified for the defense. She testified that she and her family (including Petitioner) did not live at 19 Hecla Street on August 2, 2002, but were staying at 25 Dakota Avenue in the City of Buffalo and had spent the night of August 2-3, 2002 at the Dakota Street address. T.T. 342-344. She further testified that Loschiavo and Richard Frank's wife helped her pack her belongings at 19 Hecla Street on August 2, 2002. T.T. 343.

At the close of the trial, Petitioner was found guilty as charged. Subsequently, he was sentenced to concurrent terms of imprisonment for each count, the longest being a twenty-year determinate term. A five-year period of post-release supervision was also imposed. Sentencing Mins. [S.M.] 7-9.

By motion dated March 21, 2006, Petitioner sought to vacate his judgment of conviction, pursuant to N.Y. Crim. Proc. L. ("CPL") § 440.10, on the grounds of newly discovered evidence and that material evidence adduced at trial was false. The Erie County Supreme Court denied that motion on July 28, 2006. It does not appear Petitioner sought leave to appeal. See Resp't Ex. D.

On June 8, 2007, the Appellate Division, Fourth Department ("Fourth Department") unanimously modified the judgment by reversing the convictions for forcible touching obtained under counts 7, 10, and 14 of the underlying indictment, and dismissed those counts.*fn2 As modified, the judgment was unanimously affirmed. People v. Moore, 41 A.D.3d 1149 (4th Dep't 2007) (Resp't Ex. B); lv. denied, 9 N.Y.3d 879 (2007) (Resp't Ex. C).

On or about November 14, 2007, Petitioner filed a second CPL § 440.10 motion, alleging, inter alia, that he received ineffective assistance of trial counsel, he was mentally incompetent to stand trial, and that he was denied his right to testify at trial. That motion was denied, and leave to appeal was denied. See Resp't Ex. E.

This habeas corpus petition followed, wherein Petitioner seeks relief on the following grounds: (1) ineffective assistance of trial counsel; (2) prosecutorial misconduct; (3) denial of due process by the trial court; and (4) Petitioner was unable to understand the proceedings or assist in his defense due to mental disease or defect. See Pet. ¶ 22A-D (Dkt. # 1); Reply (Dkt. # 9).

III. General Principles Applicable to Habeas Review

A. The AEDPA Standard of Review

Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).

A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id. This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).

Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).

B. Exhaustion Requirement

"An application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a State court shall not be granted unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . ." 28 U.S.C. § 2254(b)(1)(A); see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-44 (1999); accord, e.g., Bossett v. Walker, 41 F.3d 825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054 (1995). "The exhaustion requirement is not satisfied unless the federal claim has been 'fairly presented' to the state courts." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984).

C. The Adequate and Independent State Ground Doctrine

A procedural default generally bars a federal court from reviewing the merits of a habeas claim. Wainwright v. Sykes, 433 U.S. 72 (1977). Federal habeas review is prohibited if a state court rests its judgment on a state law ground that is "independent of the federal question and adequate to support the judgment." Cotto v. Herbert, 331 F.3d 217, 238 (2d Cir. 2003) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)); accord Jones v. Stinson, 229 F.3d 112, 117 (2d Cir. 2000). A state procedural bar qualifies as an "independent and adequate" state law ground where "'the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.'" Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995) (quoting Harris v. Reed, 489 U.S. 255, 262 (1989)). A state procedural rule will be adequate to preclude habeas review if it is "firmly established and regularly followed," unless the state rule is "exorbitant." Lee v. Kemna, 534 U.S. 362, 376 (2002) (quoting James v. Kentucky, 466 U.S. 341, 348 (1984)).

A federal court may review a claim, notwithstanding the petitioner's default, if he "can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law." Coleman, 501 U.S. at 750; see also Levine, 44 F.3d at 126; Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991). A petitioner may establish cause by pointing to "some objective factor external to the defense [that] impeded counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986); accord Coleman, 501 U.S. at 753. A petitioner suffers actual prejudice if the outcome of the case would likely have been different had the alleged constitutional violation not occurred. See Reed v. Ross, 468 U.S. 1, 12 (1984). Alternatively, even if the petitioner is unable to show cause and prejudice, the court may consider the claim if he can demonstrate that failure to do so will result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750.

IV. Petitioner's Claims

1. Ineffective Assistance of Trial Counsel - Failure to Have Three Jurors Removed and Failure to Effectively Cross-Examine the People's Expert Petitioner argues, as he did in his second CPL § 440.10 motion, that he received ineffective assistance of trial counsel because: (1) trial counsel failed to have three jurors removed who had allegedly committed perjury; and (2) trial counsel failed to cross-examine the People's expert witness in an effective manner. See Pet., Attach. at 3. The Erie County Supreme Court rejected this claim on a state procedural ground, pursuant to CPL § 440.10(2)(c). See Resp't Ex. E (Dec. at 3). Consequently, as discussed below, the claim is procedurally barred from habeas review by this Court.

A federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state law ground, whether substantive or procedural, that is independent of the federal question and adequate to support the judgment. See Coleman, 501 U.S. at 729. Here, the state court rejected Petitioner's claims pursuant to CPL § 440.10(2)(c), finding that sufficient facts appeared in the record to have allowed for review of these issues on direct appeal. See Resp't Ex. E (Dec. at 3). The Second Circuit has recognized CPL § 440.10(2)(c) as an adequate and independent state ground sufficient to preclude federal habeas review of a state-court defendant's claims. See e.g., Sweet v. Bennett, 353 F.3d 135, 139-40 (2d Cir. 2003); Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); Aparicio, 269 F.3d at 91 (2d Cir. 1991). Thus, the state court's reliance on CPL § 440.10(2)(c) to deny Petitioner's claims bars this Court's review of them. Petitioner does not allege cause and prejudice to overcome the procedural bar, nor has he demonstrated that this Court's failure to review the claims will result in a miscarriage of justice. Accordingly, Petitioner's ineffective assistance of trial counsel claim based on counsel's failure to have three jurors removed and his failure to effectively cross-examine the People's expert are dismissed as procedurally defaulted.

2. Prosecutorial Misconduct

Petitioner asserts, as he did on direct appeal, that prosecutorial misconduct deprived him of his right to a fair trial. Specifically, he alleges that the prosecutor shifted the burden of proof in her summation when she remarked about the lack of corroborative proof of defense witness Anna Moore's testimony that she and Petitioner moved out of the address in question on August 2, 2002. See Pet. ΒΆ 22B; Reply at 4. The Fourth Department rejected this claim on the merits, finding that "[t]he prosecutor's comments were not so egregious as to warrant reversal, nor did they cause such substantial prejudice to the defendant ...


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