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Kenneth Wallace v. Thomas Poole

December 20, 2011

KENNETH WALLACE, PETITIONER,
v.
THOMAS POOLE, SUPERINTENDENT FIVE POINTS CORRECTIONAL FACILITY RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Petitioner Kenneth Wallace ("Petitioner"), through counsel, 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 April 26, 2005, in New York State, Supreme Court, Monroe County (Hon. Elma A. Bellini), convicting him, after a jury trial, of Rape in the First Degree (N.Y. Penal Law ("Penal Law") § 130.35(1)), seven counts of Rape in the Third Degree (Penal Law § 130.25(2)), one count of Criminal Sexual Act in the Third Degree (Penal Law § 130.40(2)), and one count of Assault in the Second Degree (Penal Law § 120.05(2)).

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

II. Factual Background and Procedural History

A. Indictment

Petitioner was indicted by a Monroe County Grand Jury and charged with seven counts of Rape in the Third Degree, one count of Criminal Sexual Act in the Third Degree, one count of Rape in the First Degree, and one count of Assault in the Second Degree. The charges arose from various incidents that occurred from December 2002 through February 2004, in the City of Rochester, New York, wherein Petitioner engaged in sexual intercourse with F.G. ("F.G." or "the victim"), a girl under 17-years-old whom Petitioner had been raising as his daughter. On May 15, 2004, after a physical altercation, Petitioner beat F.G., causing multiple injuries. Later that same night, Petitioner engaged in sexual intercourse with F.G. against her will. See Ind. No. 1017, dated 11/16/04 at Resp't Ex. B.

On April 4, 2005, Petitioner proceeded to trial before the Hon. Elma A. Bellini and a jury.

B. The Trial

From a young age, F.G., who was 17-years-old at the time of the trial, had been raised by Petitioner whom she believed to be her biological father. Trial Trans. [T.T.] 188-189, 280-282. F.G.'s biological father was murdered when F.G. was young. F.G. was raised in Philadelphia by Petitioner and her biological mother, Daisy, and her three brothers, Jonathan, Shamel, and Shaiquwn.

T.T. 191. At the time of the trial, Daisy had not been a part of F.G.'s life for several years. T.T. 281.

In the fall of 2002, when F.G. was 15-years-old, Petitioner, F.G., Shamel, and Shaiquwn moved to Rochester, while Daisy remained in Philadelphia. T.T. 193-194. Temporarily, the four individuals moved in with Petitioner's brother, Nathaniel Wallace, at 264 Dr. Samuel McCree Way in Rochester. T.T. 195-196, 324, 586-587. At that time, Petitioner was employed as a carpenter and a professional boxer. T.T. 587-588.

At trial, F.G. testified to seven separate incidents in which Petitioner engaged in sexual intercourse with her after she moved to Rochester with Petitioner, but prior to her reaching her seventeenth birthday. The first incident occurred around Christmas 2002, when the family was still living with Petitioner's brother. After the family had dinner, Petitioner took F.G. next door to the home at 262 Dr. Samuel McCree Way, which they intended to live in at some point. T.T. 199-200, 204. Petitioner locked the front door and placed blankets and cushions on the floor. T.T. 200, 202-203. He then pulled on F.G.'s clothes, and F.G. refused his advances. T.T. 201. Petitioner eventually took off his pants and put his penis in F.G.'s vagina. T.T. 201-202. Afterwards, F.G. did not tell anyone what had happened because Petitioner had told her "he was going to kill [her]" if she did. T.T. 203.

F.G. also testified to two incidents of sexual intercourse with Petitioner that occurred in February 2003. In one incident, Petitioner came to F.G. as she was going to sleep in her bedroom. Petitioner took her into the living room and had sex with her on the living room couch. T.T. 204-206. Again, F.G. did not tell anyone because Petitioner had threatened to hurt her if she did. T.T. 207.

In mid-August 2003, the family moved into the home at 262 Dr. Samuel McCree Way. T.T. 193, 207. F.G. testified to two incidents that occurred at that location between September 1 and October 10, 2003 in which Petitioner had sex with her before she left for work. T.T. 209-212. Nobody was home at the time and the front doors were locked. T.T. 210-212. Her brothers were outside at the time. T.T. 210. F.G. did not tell anyone because Petitioner had threatened to hurt her. Petitioner also told F.G. that if she stopped having sex with him, he would accuse her of having sex with another person. T.T. 224.

On October 10, 2003, Petitioner married Vanessa Madden ("Madden"), with whom he had earlier had a son, Keith. T.T. 192, 207-209, 326, 584-585, 644-648. Shortly thereafter, Petitioner, F.G., Shamel, and Shaiquwn moved into Madden's home at 360 Hayward Avenue with her and her sons.*fn1 T.T. 192, 214-215, 377-378, 587, 590, 674-675.

F.G. testified to another incident that occurred on or around November 21, 2003 after she moved into Madden's home. T.T. 213-

217. F.G. was taking a shower in the upstairs bathroom when Petitioner knocked on the door, came in, told F.G. to get out of the shower, and then engaged in sexual intercourse with her in the bathroom. T.T. 216. Petitioner also put his mouth on F.G.'s vagina. T.T. 217. Madden and F.G.'s brothers were home at this time, but Petitioner had locked the bathroom door. T.T. 216-217.

F.G. testified to another incident that occurred in February 2004 when she was alone with Petitioner in the basement of Madden's home. T.T. 218-220. Petitioner had brought down his pit bull, which was non-violent to Petitioner but would attack others, to roam the basement. T.T. 220. After Petitioner came downstairs with the dog, Petitioner had sex with F.G. on a weight bench. While Petitioner and F.G. were in the basement together, no one came downstairs. T.T. 223.

F.G. testified to another incident --- although she could not recall the date -- wherein Petitioner came into her bedroom, woke her up, and had sex with her on the couch in her room. T.T. 227. F.G. testified that she could not recall the date this happened "[b]ecause it happened so often." T.T. 227-228. F.G. testified that Petitioner generally used condoms. T.T. 269.

F.G. testified that she believed Petitioner's threats of physical harm were real because she had seen Petitioner hurt other people, including her uncle and her mother. T.T. 213. F.G. and Madden both testified to a 2004 incident in which Petitioner became so enraged during an argument he was having with Madden that he choked her while telling her that he was going to kill her. T.T. 259, 263, 594-595, 680-681, 689-691.

On May 15, 2004, Petitioner physically assaulted F.G. at Madden's home when, Petitioner discovered that F.G. had a cell phone, in defiance of his instructions. Petitioner accused F.G. of sleeping with boys and hit F.G. with an open hand, knocking her down. He then grabbed her by the throat, lifted her up, and threw her on the ground. T.T. 234-235. Petitioner slapped, punched, and kicked F.G. while she was on the ground, dragged her by the hair, called her names, and told her he would kill her. T.T. 235-243, 334, 611-616. At one point, Petitioner hit F.G. on the head with a wooden board that had broken off of F.G.'s dresser. T.T. 240. Madden eventually interceded and rinsed F.G.'s head with peroxide to clean the wound, but F.G. was not otherwise treated for her injuries. T.T. 238, 241-245, 258, 613-618, 682-684. F.G. suffered bleeding to her head, a bloody nose, a cut lip, a scratched back, and injuries to her right index finger and ankle. T.T. 240, 254, 334-340, 614, 617-618.

Later that same night, after the family had gone upstairs to bed, Petitioner forced F.G. to have sex with him on a downstairs couch. T.T. 247-250. F.G. was in pain and told Petitioner to stop, but he continued. F.G. was afraid to scream because she thought Petitioner would hurt her again. T.T. 248-252, 256.

Because of her injuries, F.G. was absent from school for two and one-half weeks. School authorities were told that she was absent because of a death in the family and then an illness. T.T. 254-255, 452-454, 461, 621-622, 684. Upon returning to school, F.G. did not initially tell anyone about the assault because she was afraid of Petitioner. T.T. 263-264, 362-364, 431-433. In June 2004, F.G. told a friend from school about the physical assault. T.T. 264-265, 364, 476-478. F.G. and the friend later told the school guidance counselor about the physical abuse, who then reported the abuse to the principal, who referred the matter to Child Protective Services ("CPS"). T.T. 266, 364-365, 461-467, 479-482, 485.

A CPS Investigator came to the school and spoke with F.G. T.T. 267, 381-382. On June 9, 2004, F.G. was taken to Rochester General Hospital where she was examined. T.T. 267. The examination showed no fractures, but she had a small laceration on the top of her head that was healing, and there was swelling on her right index finger and on the top of her right foot. T.T. 172-173, 180, 268, 490-496, 500-503. While she was at the hospital, F.G. gave a statement to police, reporting the physical abuse but not the sexual abuse. Petitioner was arrested and F.G., along with her brothers, was immediately placed in foster care where she remained through the time of the trial. T.T. 170-171, 177-179, 182-183, 268-269, 284-285, 338-344, 347, 366-367, 426-427, 684, 692.

Eventually, while F.G. was in foster care, she told a CPS worker about Petitioner's sexual ...


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