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Brent L. Russell v. Steven Racette

June 21, 2012


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


I. Introduction

Brent L. Russell ("Russell" or "Petitioner") has filed a pro se habeas corpus application pursuant to 28 U.S.C. § 2254, alleging that he is being held in state custody at Elmira Correctional Facility in violation of his federal constitutional rights. Petitioner's incarceration is the result of a judgment entered on August 22, 2007, in Wyoming County Court, of New York State, following a jury verdict convicting him of Predatory Sexual Assault (N.Y. Penal Law ("P.L.") § 130.95 (1)(b)); Rape in the First Degree (P.L. § 130.35(1));*fn1 and Unlawful Imprisonment in the First Degree (P.L.§ 135.10).

II. Factual Background and Procedural History

A. Petitioner's Trial

1. The Prosecution's Case

The victim, C.B., was thirty-seven years-old at the time of trial. Because she did not drive or have a driver's license, she depended on family, friends and sometimes strangers for transportation. On October 30, 2006, she went with her friend Gordon Metcalf ("Metcalf") to Batavia, New York to go shopping. Afterwards, C.B. and Metcalf went to three different bars where they consumed alcoholic beverages over the course of several hours.

At about 6:30 p.m., Metcalf left C.B. at a bar named Poor Boys. C.B. had made arrangements to have two men that she had just met in the bar (Doug Pierson ("Pierson") and Ron Dacey ("Dacey")) drive her home to Warsaw, New York. At around 7:30 or 8 p.m., she went with the men to another bar in Perry, New York called Silver Grill. The men left the bar at approximately 8:10 p.m. so that Pierson could drive Dacey home. Pierson promised to return for C.B., but he did not.

C.B. waited forty-five minutes, at which point Petitioner, whom C.B. had never met before that evening, offered to drive her home. Michael Gambino ("Gambino"), the bartender at Silver Grill, was friends with C.B. and saw her leave with Petitioner at about 8:30 p.m.

Petitioner began driving down a back road that C.B. did not recognize, pulled the car over, and began making sexual advances towards C.B., who turned him down, stating that the bartender knew her and would remember that she had left with him. Petitioner then pulled out what C.B. believed to be a knife and held it six to twelve inches from her face. As Petitioner straddled C.B.'s lap. C.B. told him, "It doesn't have to be like this." Petitioner persisted, saying, "I am going to have sex with you." T.301. Pleading with him not to hurt her, C.B. told Petitioner take whatever he wanted from her purse and to do whatever he wanted.

Petitioner eventually put the knife in the backseat, but raped C.B. anyway, inserting his penis into her vagina and having intercourse with her against her will until he ejaculated. Afterwards, Petitioner said, "I'm sorry, I shouldn't have done that to you." T.306.

C.B. convinced Petitioner to take her back to Warsaw to rent a movie and order pizza. She thought that she could get assistance at the video rental store.

Petitioner agreed, and they drove to Hollywood Video in Warsaw. After browsing for some time, C.B. was able to get the attention of employee Diana Klink ("Klink") and mouthed to her, "Call 911." T.308-311, 463. Klink went in the back room and informed her supervisor, Debora Sweet ("Sweet"), about the situation. T.463-64. Observing that C.B. appeared nervous and in need of help, Sweet called 911. At that point, Petitioner left the store by himself.

Klink was able to give Petitioner's license plate number to Sweet, who was on the phone with the 911 operator. At that point, C.B. became hysterical and told Sweet and Klink that Petitioner had raped her at knifepoint.

The prosecutor played the surveillance tape from Hollywood Video for the jury. It depicted Petitioner and C.B. entering the store at approximately 9:29 p.m. The tape showed C.B. speaking to Klink at 9:36 p.m. At 9:39 p.m., Petitioner was nearing the store exit. Soon thereafter Sweet walked to the front and Petitioner left the store. C.B. followed him out. C.B. was then seen speaking to Klink and Sweet inside the store while Sweet was on the phone.

The police arrived and escorted C.B. to the hospital where Kathy Hare ("Hare"), a certified sexual assault nurse examiner, performed a pelvic exam and a compiled a rape kit. Hare testified that there was redness at the base of C.B.'s vagina that was consistent with either forcible or consensual intercourse. Hare also testified that the medical records contained the notes of another nurse who observed that multiple fingernails on C.B.'s hand were broken and jagged. C.B. stated that prior to the assault her fingernails were not broken.

While C.B. was in the hospital, the police located Petitioner's car parked at the residence of his friend, Al Hartman ("Hartman"). Petitioner agreed to come to the police barracks for questioning, where he waived his Miranda rights and was interviewed by Investigator John Neeley.

At approximately 2:30 a.m., the police brought C.B. to the state troopers' barracks. During Investigator Jim Zittle's interview of C.B., she became ill during the interview from some of the medications she had been given at the hospital. Because the investigators were unable to complete their interview with C.B., Petitioner was not arrested that night.

Two days later, an arrest warrant was issued for Petitioner, whom the police believed had fled. Petitioner was arrested a month later in ...

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