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Jesus Orlando Martinez v. Robert A. Kirkpatrick

January 17, 2012


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


I. Introduction

Pro se petitioner Jesus Orlando Martinez ("Petitioner") timely petitions this court for a writ of habeas corpus under 28 U.S.C. § 2254, challenging the constitutionality of his custody pursuant to a judgment entered against him on May 17, 2005, in New York State Supreme Court, Monroe County, convicting him, after a jury trial, of three counts of Sodomy in the First Degree (N.Y. Penal Law § 130.50(3)) and one count of Sexual Abuse in the First Degree (N.Y. Penal Law § 130.65(3)).

For the reasons stated below, the petition is denied.

II. Factual Background and Procedural History

Petitioner's convictions arise from four separate sexual assaults against three young girls. The incidents occurred in Rochester, New York, during the summer of 2000. At the time of the assaults, the girls (referred to herein as "G.R.," "Y.A.," and "N.G." to protect their privacy) lived together in the same home as Felix Vega ("Vega"). (Trial Transcript ("TT."), 160, 338). Petitioner was acquainted with Vega through Vega's aunt. (TT. 338). Vega was the boyfriend of G.R.'s mother, Ylenia DelGado ("DelGado"), and he would often watch the children while she was at work. (TT. 337).

Around August 16, 2000, Vega allowed Petitioner to take G.R. to his home in order to play with another girl. (TT. 161). However, there was no one else at the apartment when Petitioner and G.R. arrived. (TT. 161). Petitioner brought G.R. into his bedroom, took off her pants, pushed her onto the bed, removed his pants, and inserted his penis into her anus. (TT. 160-63). When he was done, he threatened to hurt G.R.'s cousin, N.G., if G.R. told anyone what had happened. (TT. 164). Petitioner gave G.R. a bath and drove her home. (TT. 165).

About two weeks later, Vega let Petitioner take G.R. and her sister, Y.A., to a park. (TT. 169-70). Petitioner allowed the girls to play outside for a while, but when they were done, he drove them to his apartment. (TT. 170). He told G.R. to shower and called her into the bedroom after she had dressed. (TT. 172). Petitioner pulled down G.R.'s pants, took off his pants, and inserted his penis into her anus. (TT. 172).

Y.A. testified that Petitioner told her to take a bath when she and G.R. arrived at the apartment. (TT. 213, 261, 275). When she had finished bathing, Petitioner had her come into the bedroom, take off her towel, and lie face down on his bed. (TT. 217-18). Petitioner then inserted his penis into her anus. (TT. 218-19). Petitioner told Y.A. to "shut up" when she began screaming. (TT. 220). When he was finished, he threatened to hurt Y.A.'s cousin, N.G., if she told anyone what had happened. (TT. 221). G.R. and Y.A. told each other what had happened after they got home. (TT. 221).

Around August 19, 2000, during a party for G.R., N.G.'s stepfather allowed Petitioner to take N.G. out to buy a dress. (TT. 274). Petitioner had N.G. pick out three dresses from Family Dollar, and after they had finished shopping, he drove N.G. to his apartment. (TT. 278). Once there, he told N.G. to take a bath and, while she was in the bath, Petitioner entered the bathroom wearing only a white t-shirt and underwear. (TT. 279). When petitioner touched N.G.'s vagina with his finger, she hit him in the head with a nearby cup. (TT. 279-80). Petitioner then took his penis out of his underwear as he dried N.G. with a towel, but put his penis back in his underwear when N.G. turned around. (TT. 281-82). Petitioner told N.G. to put on one of the three new dresses, and then he drove her home. (TT. 282). Before she left, however, he threatened to kill N.G. and her mother if she told anyone what had happened. (TT. 283). He took the two remaining dresses and, handing them to N.G. in a big bag, told her to give them to G.R. and Y.A. (TT. 283).

Four years later, Y.A. told her aunt what had happened. (TT. 222). After meeting with Child Protective Services, G.R. and Y.A. reported the assaults to the police in February of 2004.(Suppression Hearing Transcript ("H."), 12). During a meeting with police investigators, the children separately identified Petitioner from a photo array. (H. 12). Police then met with N.G. after speaking with her mother. (H. 22). After viewing one of the photo arrays, N.G. identified Petitioner's photo as depicting the person who had touched her. (H. 24-25).

Police arrested Petitioner in connection with the investigation on March 3, 2004, and brought him to an investigators' office for an interview. (H.54-59). Before questioning Petitioner, Officer Orlando Rivera ("Officer Rivera") downloaded and printed a Spanish translation of the standard Miranda*fn1 warnings from the internet. (H. 60). He used Spanish Miranda warnings from the internet because the police station was missing the Spanish Miranda cards customarily given to Spanish speaking suspects. (H.60-61). When the Spanish Miranda warnings were printed, however, one word from the warnings was cut off on the right hand side of the page, appearing as "declara--." (H. 67). After reading the Miranda warnings to Petitioner as they appeared, Officer Rivera handed the form to Petitioner, who read them to himself, nodded, and handed it back. (H. 68). Petitioner then marked "si" on a card with the English Miranda warnings printed on it to signify that he understood the Spanish Miranda warnings. He also verbally indicated that he understood what Officer Rivera had said to him, and agreed to talk with the police. (H. 72).

Petitioner made several incriminating statements in this interview. Before investigators informed Petitioner of the nature of the charges, Petitioner volunteered that he dated older, married women (TT. 319). He also acknowledged knowing G.R., Y.A., and N.G., and told police that he had fed and bathed them. (TT. 315-17, 329). However, Petitioner denied sexually assaulting the children. (TT. 317). The interview lasted approximately one hour.

A Grand Jury indicted Petitioner on April 23, 2004. (Arraignment Transcript "A.", 2). When Petitioner moved to suppress his statements to the police, the court scheduled a suppression hearing for August 30, 2004. (H. 111-12). At the hearing, the court heard testimony from the officers involved in the interview. (H. 111). Petitioner did not testify. Crediting the prosecution's witnesses, the trial court denied Petitioner's motion, finding that he had voluntarily waived his Miranda rights. (H. 112).

Petitioner proceeded to a jury trial on February 14, 2005. The court heard testimony from G.R, Y.A., and N.G., as well as Vega, DelGado, and the police officers involved in Petitioner's arrest and interview.

The prosecution also called expert witness Stefan Perkowski ("Perkowski") to testify on Child Sexual Abuse Accommodation Syndrome ("CSAAS"). The purpose of this testimony was to explain counterintuitive behavior patterns of sexually abused victims. (TT. 410). Having never met the victims, Perkowski stated that he could not know whether they had been sexually abused. (TT. 419).

Perkowski testified that CSAAS has five characteristics. The first characteristic is helplessness, where the dependent child is unaware that an adult is misleading them. (TT. 411-13). The second characteristic is secrecy, where the abusive adult hides the abuse from both the public and the child. (TT. 413). Perkowski noted that an adult may accomplish this by combining the abuse with routine tasks, such as removing the victims' clothes for baths. (TT.415-16). The third characteristic is accommodation, where the abused child will go along with whatever the abuser requires. (TT.413). The fourth characteristic is entrapment, in which abused children remain silent because they are afraid that the discovery of the abuse will upset other adults. (TT. 413). The ...

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