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Louis Mccrae v. Dale A. Artus

August 31, 2012

LOUIS MCCRAE, PETITIONER,
v.
DALE A. ARTUS RESPONDENT.



The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.

MEMORANDUM AND ORDER

Petitioner pro se Louis McCrae brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.*fn1 Petitioner seeks relief from his conviction in the Supreme Court of the State of New York, Kings County, for one count of Sexual Abuse in the First Degree under N.Y. Penal Law § 130.65(3) and one count of Endangering the Welfare of a Child under N.Y. Penal Law § 260.10(11). He was sentenced to concurrent prison terms of seven years and one year on his convictions for the sexual abuse and endangering the welfare of a child, respectively, together with a term of post-release supervision of three years.

Petitioner asserts a number of claims in support of his application:*fn2 (1) petitioner's confession was coerced, which violated his right against self-incrimination and rendered his arrest and conviction unlawful; (2) petitioner's Sixth Amendment right to testify in his own defense was violated by the trial judge allegedly advising him not to testify at trial; (3) there was insufficient evidence to support his conviction; (4) trial counsel provided ineffective assistance when he failed (a) to secure suppression of the coerced confession, (b) to make arguments relating to the victim and his family's motive to lie and fabricate evidence, (c) to challenge petitioner's allegedly unlawful arrest, searches, and seizures that resulted from petitioner's coerced confession, and (d) to make arguments relating to the petitioner's innocence as evidenced by the victim's uncle posting the security to procure petitioner's bail after he was arrested; (5) petitioner's appellate counsel was ineffective for failing to raise any of the foregoing claims on appeal; and (6) petitioner is actually innocent.

For the reasons set forth below, this being a mixed petition containing both exhausted and unexhausted claims, the petition will be DISMISSED without prejudice, unless within thirty (30) days of the date of this Memorandum and Order, petitioner files a letter clearly asserting that he wishes to strike his unexhausted claims and proceed solely with his exhausted claims.

BACKGROUND

I.Arrest and Trial

Petitioner's conviction arises from an allegation that petitioner put his penis inside the anus of a 10 year old L.T.*fn3 (the "victim"). (Aff. of Jill Oziemblewski in Opp'n to Pet. (Doc. No. 6) ("Opp'n Aff.") at 2.) The incident occurred early Christmas morning, December 25, 2005, when petitioner and the victim were sharing a bed while spending the holiday at the home of petitioner's cousin who was also L.T.'s grandmother. (Id.; Pet. (Doc. No. 1) at 6.) L.T.'s parents knew petitioner for fourteen years prior to the incident, and L.T. referred to petitioner as "Bishop McCrae" or "grandpa." (Opp'n Aff. at 2.)

When L.T. awoke the morning after the alleged incident, he told his sister what petitioner had done. (Id. at 2.) Eventually, L.T. and his sister told their parents that defendant had put his penis inside L.T.'s anus. (Id.) When the family confronted petitioner about the alleged assault, he denied the allegations and insisted that L.T. be taken to the doctor. (Pet. at 7.) L.T. was eventually taken to Brookdale Hospital, where a doctor found a laceration in his anterior anal area, which, according to an expert at trial, could have been caused by a penis. (Opp'n Aff. at 2.)*fn4

Petitioner was brought to a police station on December 27, 2005. (Id.; Trial Tr. (Doc. Nos. 7-8) at 190-95.)Upon questioning by detectives Cathy Walker and Jennifer Molinari, petitioner dictated and signed a statement about the incident. (Resp. App. Br. at 13-16.) Petitioner's statement indicates that he did not remember whether he had touched L.T., but regardless, petitioner would not remember because he had taken heavy doses of narcotic medication that evening. (Pet. at 12.)

Petitioner was charged under Kings County indictment 9597/2005 with one count each of Criminal Sexual Act in the First Degree (N.Y. Penal Law § 130.50(3)), Sexual Abuse in the First Degree (§ 130.65(3)), Assault in the Second Degree (§120.05(6)), and Endangering the Welfare of a Child (§ 260.10(1)). (Opp'n Aff. at 3.) Petitioner was tried before a jury in the Supreme Court of the State of New York, Kings County.

On January 10, 2007, a pretrial Huntley hearing was conducted at which petitioner sought to suppress the statements he made at the time of his arrest, including the written statement referenced above. (Id.) At the hearing, petitioner's lawyer cross examined both detectives Walker and Molinari about their questioning of petitioner. (Huntley Hr'g Tr. (Doc. No. 6).)

The court found that the defendant's oral and written statements were made knowingly, intelligently, and voluntarily and denied petitioner's suppression motion. (Opp'n Aff. at 3.) Ultimately, petitioner's written statement was introduced at trial and read to the jury. (Trial Tr. at 242-43.)

On January 29, 2007, the jury convicted petitioner of one count each of sexual abuse in the first degree and endangering the welfare of a child. (Opp'n Aff. at 3-4.) The jury acquitted petitioner of criminal sexual act in the first degree.*fn5 (Id.) On March 29, 2007, the court sentenced petitioner to concurrent terms of imprisonment of seven years for sexual abuse and one year for endangering a child, with three years of post-release supervision. (Id. at 4.)

II.Post-Conviction Proceedings

In December of 2008 petitioner appealed his conviction to the Appellate Division, Second Department ("Appellate Division"). (Id.) Petitioner contended that: (1) the evidence was insufficient to support the conviction and the conviction was against the weight of the evidence; and (2) he was denied due process of law and a fair trial by (a) the court's mistaken admission under the prompt outcry doctrine of testimony that the constituted improper bolstering of the victim's allegations and (b) prosecutorial misconduct*fn6 during the opening and closing arguments. (Pet. State App. Br. (Doc. No. 8-4) ("Pet. App. Br.")at i-ii.)

On June 11, 2009, the Appellate Division affirmed petitioner's conviction. People v. McCrae, 882 N.Y.S.2d 660 (N.Y. App. Div. 2nd Dep't 2009). The court found the petitioner's challenge to the legal sufficiency of the evidence was unpreserved and, in any event, without merit and that the verdict was not against the weight of the evidence. Id. Further, the court found that although the trial court erred in admitting certain testimony as "prompt outcry" evidence and that some of the prosecutor's statements may have been improper, those errors were harmless. Id. On November 30, 2009, the New York Court of Appeals denied petitioner leave to appeal. People v. McCrae, 13 N.Y.3d 861 (2009).

On June 24, 2010, petitioner filed his present habeas petition with this Court. The petition raises a number of claims: (1) petitioner's confession was coerced, which violated his right against self-incrimination and rendered his arrest and conviction unlawful; (2) petitioner's Sixth Amendment right to testify in his own defense was violated by the trial judge allegedly advising him not to testify at trial; (3) there was insufficient evidence to support the conviction; (4) trial counsel provided ineffective assistance when he failed (a) to secure suppression of the coerced confession, (b) to make arguments relating to the victim and his family's motive to lie and fabricate evidence, (c) to challenge petitioner's allegedly unlawful arrest, searches and seizures that resulted from petitioner's coerced confession, and (d) to make arguments relating to the petitioner's innocence as evidenced by the victim's uncle posting the security to procure petitioner's bail after he was arrested; (5) petitioner's appellate counsel was ineffective for failing to raise any of the foregoing claims on appeal; and (6) petitioner is actually innocent. Although petitioner admits that he has not raised any of these claims before a state court, he alleges that is the case because he had ineffective trial and appellate counsel. (Pet. at 9.)

On May 9, 2011, respondent filed its return to the petition. (Doc. Nos. 6-8.) As of the date of this opinion, petitioner has filed no response.

LEGAL STANDARD

I.The Exhaustion Requirement and ...


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