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Tony Borden v. James Conway

May 18, 2011

TONY BORDEN, PETITIONER,
v.
JAMES CONWAY, SUPERINTENDENT ATTICA CORRECTIONAL FACILITY RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se petitioner Tony Borden("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 August 24, 2005, in New York State, Supreme Court, Erie County, convicting him, after a jury trial, of Rape in the First Degree (N.Y. Penal Law ("Penal Law") former § 130.35[3]) and Endangering the Welfare of a Child (Penal Law § 260.10[1]).

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

II. Factual Background and Procedural History

The charges arise from an incident that occurred on June 25, 2004, in the City of Buffalo, New York, wherein Petitioner placed seven-year-old L.C. ("the victim") on his bed, took her clothes off, held her down by her arms, and engaged in sexual intercourse with her. Trial Trans. [T.T.] 228-230.

At the time of the incident, Petitioner and the victim's mother were engaged to be married and were living at Petitioner's home at 17 Schreck Street. T.T. 346-347. On June 25, 2004, the victim's mother returned from work and found her daughter coloring in the back bedroom of Petitioner's home. T.T. 350. The victim indicated to her mother that she wanted to take a nap, and proceeded to do so. T.T. 351. After approximately forty-five minutes, the victim's mother woke her daughter up and fed her. The victim's mother then went into the bathroom, which was connected to the back bedroom, and smoked crack. T.T. 353. When she was coming out of the bathroom, she heard Petitioner whisper "hurry." T.T. 354. She saw Petitioner trying to cover his groin area and noticed something was wrong with her daughter. She took the victim into the bathroom and saw semen on her thigh. The victim told her mother what Petitioner had done. Petitioner tried to prevent the victim and her mother from leaving his home. The victim then went to the hospital with her mother. T.T. 354-365.

At the hospital, the victim was examined by Muhammed Qureshi, M.D. who found evidence of recent trauma to the victim's hymen, which had been torn. T.T. 455-456, 553-554. Pictures of the victim's vagina were taken at the time of the examination. T.T. 451. At trial, the prosecution's expert, James William Canavan, M.D., testified that the tear in the victim's hymen was most likely caused by penile penetration. T.T. 558-559. He further testified that the penis had to penetrate the victim's vagina in order to have contacted the hymen. T.T. 556. Joseph Calabrese, M.D., a expert witness for the defense, testified at trial that he saw no evidence of any sexual trauma to the victim. He further testified that the tear to her hymen could have been caused by any blunt trauma. T.T. 698-700.

When detectives questioned Petitioner regarding the victim's allegations, he began crying and admitted that he had sexual intercourse with the victim. Petitioner stated that he had been drinking all day, that he felt badly after the intercourse occurred, and that he needed help. T.T. 313-323.

Under Indictment No. 01381-2004, Petitioner was charged with Rape in the First Degree, Criminal Sexual Act in the First Degree, and Endangering the Welfare of a Child. After a jury trial,*fn1 Petitioner was found guilty of Rape in the First Degree and Endangering the Welfare of a Child, and found not guilty of Criminal Sexual Act in the First Degree. T.T. 868. Subsequently, he was sentenced to a determinate term of imprisonment of twenty years with a five year period of post-release supervision. Sentencing Mins. [S.M.] 6.

On April 20, 2007, the Appellate Division, Fourth Department ("Fourth Department") unanimously affirmed the judgment of conviction, and leave to appeal was denied. People v. Borden, 39 A.D.3d 1242 (4th Dep't 2007); lv. denied, 9 N.Y.3d 873 (2007), reconsideration denied, 9 N.Y.3d 959 (2007).

No collateral motions were filed.

This habeas corpus petition followed, wherein Petitioner seeks relief on the following grounds: (1) inadequate jury instructions concerning his statements to police; (2) the evidence was legally insufficient to support his conviction; and (3) the trial court improperly denied his motion for a mistrial based on prosecutorial misconduct. See Pet. ¶ 12 (Dkt. # 1); Traverse [Tv.] (Dkt. # 10).

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 ...


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