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Corey Bones v. Supt.

May 6, 2011

COREY BONES,
PETITIONER,
v.
SUPT., GROVELAND CORRECTIONAL FACILITY*FN1 , RESPONDENT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

03-B-1030,

ORDER

I. Introduction

Pro se petitioner Corey Bones ("petitioner") has filed petition for writ of habeas corpus challenging the constitutionality of his conviction of Rape in the First Degree and Rape in the Second Degree (N.Y. Penal L. §§ 130.35(2), 130.30(1)) in Monroe County Court, following a jury verdict before Judge Frank P. Geraci, Jr. Petitioner was sentenced to concurrent terms of imprisonment, the longest of which being eight years with five years of post-release supervision.

II. Factual Background and Procedural History

Petitioner's conviction arises out of an incident on October 31, 2001, wherein he entered the apartment of Kenyatta McClary ("McClary") and had sexual intercourse with her 14-year-old niece, S.J. (or "the victim") while she slept on a sofa in the living room. McClary was awakened by S.J., who told her that there "was a strange man on top her [sic] pulling her clothes down and that the stranger was still in the apartment." McClary got out of bed and saw petitioner standing in her bathroom, whom she recognized as a man named "Toast" from the neighborhood. Petitioner told McClary that he was looking for her [McClary], and that someone opened the door for him. He also stated that he did not rape McClary's niece, to which S.J. responded, "Yes, you did." Trial Tr. 247, 251-54, 325, 338, 346-54.

Petitioner told McClary that if she called the police, "something would happen" to her and her family. The two then argued for ten or fifteen minutes before petitioner left. McClary testified that she did not call the police because she was scared. Immediately after the incident, S.J. went into the bathroom, where she observed blood in her urine and "on the tissue." She did not, however, tell her mother or call the police because she was scared and did not know what to do. She further testified that after petitioner left the house, her aunt "just went back in her room like she didn't care." Trial Tr. 256-57, 259, 357, 360-62.

The next morning, S.J. "washed up" and went to school. She called her mother from school shortly after 9:00a.m., who in turn called the police. S.J. later went to the hospital for an examination, which yielded no lacerations. Trial Tr. 259-60, 327, 330-32, 337, 364-65, 367-68, 373.

Petitioner was found guilty of Rape in the First Degree based upon a theory of the victim's physical helplessness (N.Y. Penal L. § 130.35(2), and Rape in the Second Degree (§ 130.30(1)) for engaging in sexual intercourse with a person less than fifteen years old. Trial Tr. 640.

Through counsel, petitioner filed an appellate brief in the Appellate Division, Fourth Department, which unanimously affirmed the judgment of conviction. People v. Bones, 50 A.D.3d 1527 (4th Dept. 2008), lv. denied, 10 N.Y.3d 956 (2008). Petitioner then brought this pro se petition for a writ of habeas corpus, alleging the following grounds for relief: (1) the trial court erred in denying petitioner's request to introduce testimony that the victim had not been sexually active prior to the rape; (2) the verdict was against the weight of the evidence; (3) prosecutorial misconduct; (4) the trial court erred in denying petitioner's request for an adjournment; (5) the trial court erred in failing to suppress the victim's in-court identification; (6) the trial court's Sandoval ruling was erroneous; and (7) cumulative errors deprived petitioner of a fair trial. Petition ("Pet.") ¶ 22(A)-(D) & Attach. A.

For the reasons that follow, the Court finds that petitioner is not entitled to the writ, and the petition is dismissed.

III. Discussion

A. General Principles Applicable to Federal Habeas Review

1. Standard of Review

To prevail under 28 U.S.C. ยง 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 ...


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