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Timothy Riley, 03-B-1731 v. Malcolm Cully

May 18, 2011

TIMOTHY RILEY, 03-B-1731, PETITIONER,
v.
MALCOLM CULLY, SUPERINTENDENT, LIVINGSTON CORRECTIONAL FACILITY, RESPONDENT.



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

ORDER

I. Introduction

Petitioner Timothy Riley ("petitioner"), who is represented by counsel, has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Supreme Court of rape in the first degree, rape in the second degree, rape in the third degree (two counts), sexual abuse in the second degree, sodomy in the second degree and sodomy in the third degree following a bench trial before Justice Kenneth R. Fisher. Petitioner was sentenced to indeterminate, concurrent sentences totaling eight to sixteen years.

II. Factual Background and Procedural History

Petitioner's conviction stems from a series of incidents that occurred between 1996 and 1998, during which petitioner sexually abused his step-daughter ("the victim"), when she was between the ages of thirteen and fifteen years-old.

A. The Prosecution's Case

The victim and her mother testified at petitioner's non-jury trial that they, along with the victim's younger sister, moved into petitioner's house in the Town of Irondequoit in 1989. A little over one year later, the victim recalled that petitioner began engaging in sexually inappropriate behavior when she was seven years-old. Testimony of the prior history of abuse, pre-dating the crimes in the indictment, were ruled relevant by the trial judge on the element of forcible compulsion for the count of rape in the first degree*fn1 . Trial Tr. 16, 142, 144-46; see Respondent's Appendix ("Appx.") B.

The victim recalled various situations where petitioner fondled her and engaged in various sexual acts against her will. In one instance, when the victim was fourteen years-old, petitioner drove her to a friend's house for an overnight stay, and, on the way there, demanded that she perform oral sex on him. The victim testified that as a result of this incident, she became aware of a mole on the underside of petitioner's penis. This fact was confirmed by his wife and petitioner himself. Trial Tr. 51, 183-85, 210, 414.

The victim described another incident, when she was fifteen, where petitioner became angry with her when she admitted she was having sex with her boyfriend. At that time, petitioner ordered the victim to remove her clothes, held her down with his body weight, and had sexual intercourse with her. According to her testimony, she could not push petitioner off of her because he was too heavy.

T. 216-20.

B. The Defense's Case

Defense counsel made extensive motions prior to trial, including a motion to restrict the Molineux*fn2 evidence of uncharged sexual crimes against the victim, and successfully obtained relevant portions of the victim's mental health records for use at trial. The defense's position was that the victim fabricated the allegations of abuse based on her contempt for petitioner and a history of mental illness. In support of this position, defense counsel elicited testimony from character witnesses that the victim did not have a reputation for honesty, and that the petitioner did not have a reputation for being sexually abusive or sexually violent. The defense also raised the victim's mental health issues and history of substance abuse. The victim, on cross-examination, acknowledged that she had been diagnosed as manic depressive and bipolar. Trial Tr. 44, 55-122, 238-336, 497, 499, 509-11, 516, 526, 573. Petitioner testified in his own behalf at trial.

C. Verdict and Sentencing

The trial court found petitioner guilty of seven of the twelve counts in the indictment. Trial Tr. 606. Petitioner was subsequently sentenced to eight to sixteen years imprisonment on the first-degree rape count, with other, lesser sentences to run concurrently. During that proceeding, the court commented that it did not find petitioner's trial testimony to be credible. Sentencing Tr. dated 10/16/2003 at 24.

D. Post-Conviction Relief

Through counsel, petitioner filed a motion to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. L. § 440.10 on the grounds that: (1) the trial court's Molineux ruling was an abuse of discretion, depriving petitioner of his rights to due process, a fair trial, and to a trial by jury; and (2) petitioner's counsel was constitutionally ineffective for failing to investigate and present evidence of a severe psychological disorder suffered by the victim, depriving him of his rights to present a defense and confront his accuser. Appx. B. Following oral argument on the § 440.10 motion, the Monroe County Supreme Court denied petitioner's motion in its entirety. See Decision and Order, Monroe County Supreme Court (Affronti, J.), No. 02-0662, dated 2/2/2007 (Appx. F). Leave to appeal that decision was denied by the Appellate Division on April 17, 2007. Appx. I.

E. Direct Appeal

Petitioner then appealed his conviction to the Appellate Division, Fourth Department, on the following four grounds:

(1) defense counsel's failure to inform the trial court of the victim's psychiatric condition deprived petitioner of his rights to the effective assistance of counsel, to present a defense, to confront his accuser, and to present evidence; (2) the trial court abused its discretion in allowing evidence of uncharged sexual crimes against the victim; (3) testimony regarding the appearance of petitioner's genitals should have been protected by the marital privilege under New York law; and (4) the trial court erred in allowing cross-examination of petitioner as to whether he rented or purchased adult videos. Appx. J. The Fourth Department unanimously affirmed the judgment of conviction. People v. Riley, 48 A.D.3d 1249 (4th Dept. 2008), lv. denied, 10 N.Y.3d 844 (2008).

F. Federal Habeas Proceeding

Petitioner filed a timely petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court, raising the following grounds for relief: (1) defense counsel's failure to investigate the victim's psychiatric condition deprived petitioner of his rights to present a defense, to confront his accuser, to due process of law, and his right to the effective assistance of counsel; (2) the trial court's erroneous Molineux ruling deprived petitioner of his constitutional rights to due process, a fair trial, and to a trial by jury. Petition ("Pet.") 7-51.

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

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 ...


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