The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge
On August 27, 2008, petitioner Jobie Davis, an inmate acting pro se, filed a Petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254 .*fn1 On November 5, 2008 he filed an Amended Petition , further specifying the grounds upon which he seeks relief. The parties have consented to proceed before a Magistrate Judge pursuant to 28 U.S.C. §636(c) . For the following reasons, I order that the Petition and Amended Petition be denied.
Petitioner is alleged to have engaged in sexual intercourse with his minor daughter (the "victim"). As a result of this conduct, he was charged in a sixteen-count indictment with four counts of second degree rape (N.Y. Penal Law §130.30(1)), four counts of incest (N.Y. Penal Law §255.25), one count of attempted second degree rape (N.Y. Penal Law §§110.00 and 130.30(1)), one count of attempted incest (N.Y. Penal Law §§110.00 and 255.25), five counts of endangering the welfare of a child (N.Y. Penal Law §260.10(1)), and one count of second degree sexual abuse (N.Y. Penal Law §130.60(2)). Following a jury trial in Erie County Court (Hon. Michael L. D'Amico presiding), petitioner was convicted of all counts.
The then thirteen-year-old victim resided with her mother until approximately March 2003, when her mother sent her to live with petitioner because she was acting up in school and her grades were poor. T369-371, 395.*fn2 According to the victim, at some point in May 2003 petitioner told her to lay on the bed and take off her clothes. T396. When she asked him "why", he responded "do you want a whopping?" T397. The victim testified that she was afraid of petitioner because he had hit her in the past, so she complied. T397-398. Petitioner proceeded to have vaginal intercourse with her. T398.
Petitioner again had vaginal intercourse with the victim approximately two weeks later, and also in June 2003 and February 2004. T399-404. He also attempted to have vaginal intercourse with her in March 2004. T404. Sometime thereafter, the victim told her older sister about these incidents, and the sister called their uncle, who called the police. T407-410.
On direct appeal, petitioner argued that the trial court erred in prohibiting him from offering proof that the victim had chlamydia, that the verdict was against the weight of the evidence, that he was deprived of effective assistance of counsel, that he established actual innocence at trial, that he received a harsh and excessive sentence, and that counts of the indictment were duplicitous. See Appellate Brief [1-2]. These arguments were rejected by the Appellate Division (People v. Davis, 45 A.D.3d 1351 (4th Dept. 2007)), which also rejected petitioner's motion for reargument or for leave to appeal. 2008 WL 281688 (4th Dept. 2008).
The habeas petition asserts three of the claims raised on appeal, namely that the trial court erred in prohibiting petitioner from offering proof that the victim had chlamydia, that he was deprived of effective assistance of counsel, and that the indictment was duplicitous. Amended Petition , Grounds One - Three.
A habeas corpus petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of that claim was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. §2254(d)(1),(2).*fn3 The state court's "determination of a factual issue . . . shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence". 28 U.S.C. §2254(e)(1).
With that standard in mind, I will consider each of petitioner's arguments.
B. Did the Trial Court Improperly Exclude Defense Evidence?
Petitioner argues that he should have been permitted to offer evidence that the victim had chlamydia whereas he did not. Amended Petition , Ground One. The Appellate Division rejected this argument, finding that "[c]ontrary to defendant's contention, County Court did not abuse its discretion in determining pursuant to CPL 60.42 that defendant was not entitled to present evidence that the victim had contracted chlamydia. It is uncontroverted that only CPL 60.42(5) applies here, and we conclude that defendant failed to demonstrate that such evidence was 'relevant and admissible in the interests of justice'". Davis, 45 A.D.3d at 1351.
New York's Rape Shield Law, NY Crim. P. Law ("CPL") §60.42, provides that "[e]vidence of a victim's sexual conduct shall not be admissible in a prosecution for an offense or an attempt to commit an offense . . . unless such evidence . . . proves or tends to prove specific instances of the victim's prior sexual conduct with the accused . . . or . . . is determined by the court . . . to be relevant and admissible in the interests of justice."
Prior to jury selection, petitioner's counsel sought permission to introduce evidence that the victim suffered from chlamydia, but had not transmitted it to petitioner. Petitioner's counsel argued that he was "not offering it for purposes of her sexual activity", but rather to undermine her credibility. T11. The prosecutor opposed introduction of this evidence under the Rape Shield Law, and the following exchange occurred:
"The Court: The question is, would he automatically get chlamydia if he had sex with her. [Petitioner's counsel]: It's a percentage. There is a percentage of time. It's not guaranteed every single ...