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Randal E. Stewart v. Carl Hunt

September 19, 2012


The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:



Petitioner Randal E. Stewart, a state prisoner appearing pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he challenges a November 27, 2007 judgment of conviction in Montgomery County Court, convicting him of Course of Sexual Conduct Against a Child in the Second Degree (New York Penal Law ("Penal Law") § 130.80(1)(a)). See Dkt. No. 1. Petitioner was sentenced to serve a determinate prison term of six years, to be followed by three-years' post-release supervision. See id.

Petitioner's conviction was affirmed by the Appellate Division, Third Department, on March 5, 2009, see People v. Stewart, 60 A.D.3d 1111 (3d Dep't 2009), and the New York State Court of Appeals denied leave to appeal on May 21, 2009. See People v. Stewart, 12 N.Y.3d 860 (2009).

Petitioner raises the following claims: (1) the evidence presented at trial was legally insufficient to support his conviction; (2) the verdict was against the weight of the evidence; and (3) his statutorily-authorized sentence was excessive. For the reasons that follow, the petition is denied and dismissed.


A. The Trial

1. The prosecution's case

T.*fn2 and Petitioner married in 1999, and T. grave birth to their daughter, D., in December of 2001. See Trial Transcript ("Tr.") at 330-32.*fn3 Jennifer Cromer and her fiance, Brandon Wehr, babysat D. while T. was at work. See id. at 317-18, 335. Beginning in February of 2006, Ms. Cromer and Mr. Wehr watched D. regularly, both during the week and on the weekends. See id. at 319, 334. The couple would watch D. until Petitioner picked her up after work. Petitioner would then watch his daughter until T. finished her shift. See id.

On November 3, 2006, while Ms. Cromer was watching D., they began to talk about a game D. liked to play. D. called it the "belly bunker" game and explained to Ms. Cromer that she played it with her father. At trial, D. testified that when she and Petitioner played this game, he would pull down his pants, and that "[t]here was a great big thing." See id. at 304. Further, D. testified that the thing was "hard" and that, on the "second day" that she played with it, "[i]t got some white stuff on [her] shirt." See id. at 305. D. testified that the "white stuff" came from Petitioner's "belly bunker." See id. On direct examination, D. testified that she played the game with Petitioner 160 times, but on cross-examination when asked how often they played the game, she held up her fingers and said that she had played the game with Petitioner more than ten (10) times. See id. at 311.

On October 27, 2006, Petitioner went to Wichita Falls, Texas for an extended period, to train with the Air National Guard. See id. at 336. On November 3, 2006, while Petitioner was still in Texas, T. learned that she would have to work beyond her shift, so she asked Ms. Cromer if D. could spend the night at Ms. Cromer's home. See id. at 320-21, 337. That night, D. told Ms. Cromer that she and Petitioner would play the "belly bunker" game. See id. at 304, 321-22. Upon hearing about the "game," Ms. Cromer contacted T. and told her to come to her house immediately. See id. at 322, 337. When T. arrived at Ms. Cromer's home, and after D. was put to bed, Ms. Cromer told T. about the "belly bunker" game that Petitioner was playing with D. See id. at 322, 338.

The next morning, T. spoke with D., who confirmed that she was playing the "belly bunker" game with Petitioner. See id. at 338. Later that day, T. and Ms. Cromer brought D. to the Montgomery County Sheriff's Department, where investigators interviewed each of them. See id. at 323, 325, 338-39. Thereafter, Investigator Joseph Kilmartin participated in the execution of a search warrant at the house in which Petitioner, T. and D. lived. See id. at 380. While investigators found no physical evidence of sexual abuse or pornography in the house, they recovered a handgun from a computer desk drawer, and two handguns from an armoire. See id. at 380-82.

Investigator Kilmartin contacted the Air National Guard in Texas and learned that Petitioner planned to return to New York on December 15, 2006. See id. at 354. He and Investigator Gilston met Petitioner at the Albany International Airport and told him that they wanted to talk to him about the handguns in his home. See id. at 356, 358, 385. Petitioner agreed to accompany them to the police station, and Investigator Gilston advised Petitioner of his Miranda rights while they were still in the airport. See id. at 356-57. Petitioner indicated, however, that he still wished to speak with the investigators. See id. While still at the airport, Petitioner informed Investigator Kilmartin that he had consumed two alcoholic beverages while on the plane. See id. at 386.

They arrived at the Sheriff's Office at 6:00 p.m., and Investigator Kilmartin again advised Petitioner of his Miranda rights. See id. at 358. Thereafter, the investigators spoke to Petitioner about the allegations regarding his daughter and Petitioner ultimately admitted that he engaged in the alleged activities with is daughter. See id. at 374-75. Investigator Kilmartin finished transcribing Petitioner's written statement at 7:25 p.m. See id. After Petitioner read and signed his statement, the investigators signed it as well. See id. at 365. This statement was read into the record at trial. See id. at 376-78. In the statement, Petitioner admitted that, in the past two years, he allowed his daughter to "play" with his penis as many as five times and, on occasion, he ejaculated. See id. Moreover, the statement indicates that Petitioner told D. not to tell anyone about their "game." See id. at 378.

2. Petitioner's case

At trial, Petitioner testified on his own behalf. Petitioner had previously served in the Navy and the reserves, and worked primarily as a truck driver. See id. at 398-99. In 2006, he transferred to the Air National Guard. See id. at 398. Petitioner and T. married eight years prior to trial. See id. at 399. Their marital problems began six-to-eight months after D. was born. See id. By November of 2006, they were discussing divorce. See id. at 401.

In 2006, Petitioner obtained a power generation job, which required him to take a training course with the Air National Guard in Texas. See id. at 402-05. Petitioner left for Wichita Falls, Texas, on October 27 or 28, 2006 to attend the course. See id. at 405. Petitioner testified that he owned three handguns which he stored in a locked cabinet in his computer desk. See id.

While in Texas, Petitioner called his family often. See id. at 407. After about a month and a half of training, in early December, when Petitioner tried to call his family, no one answered the telephone and the answering machine did not pick up his call. See id. at 407-09. After failing to reach T. or leave a message for her, a chief pulled him out of a training class and suggested that he return to New York to make sure that his family was safe. See id. at 407-10.

On December 15, 2006, Petitioner boarded a 6:00 a.m. flight to Chicago. See id. at 410. Petitioner waited in Chicago for six or seven hours for his next flight to Albany. See id. at 410-11. While waiting in Chicago, Petitioner began to drink and eventually became so intoxicated at the first airport bar that he was "cut off" and had to move to another airport bar. See id. at 411-12. While on route to Albany, Petitioner consumed an additional two beers. See id. at 412-13.

When Petitioner arrived in Albany, two investigators stopped him at the airport and asked to speak with him about illegal handguns recovered from his home. See id. at 413-14. Petitioner testified that he did not recall whether the investigators advised him of his Miranda rights at the airport, but he did recall that he was advised of his rights at the Sheriff's Office, most likely after the investigators informed him that they wanted to discuss the allegations of sexual abuse made against him. See id. at 417.

Petitioner told the investigators that D. told him and T. about the "belly bunker" game at some point in 2003, after the Hughes family had babysat D. See id. at 420. Petitioner told the investigators that D. had indicated that the "game" had "been going on for quite awhile," and that he and T. had decided to hire other babysitters. See id. at 422-23. It was at this point that Petitioner and T. hired Ms. Cromer and Mr. Wehr to baby-sit D. See id. at 423.

According to Petitioner, the investigators were not interested in this information and instead wanted Petitioner to give them a statement that was consistent with the statements they had received from T. and D. See id. Petitioner testified that he had the investigators read T.'s statement to him so that he could tell them "what [they] wanted me to tell them." See id. at 424. Petitioner claimed that the investigators told him that "maybe" he could go home if he told them what they wanted to hear. See id. at 425. During his interrogation, Petitioner claimed that he was "pretty heavily intoxicated," "very, very overtired," and "underneath heavy mental duress" because he was worried about his family. See id. at 421-22, 432.

Petitioner also testified that the investigators "coach[ed]" him on what to say in the statement regarding the allegations of sexual misconduct. See id. at 426, 437. Petitioner claimed that he signed the statement so that he could go home, but that he "didn't even really read it." See id. at 427. After Petitioner signed the statement, the investigators placed him under arrest. See id.

Petitioner also testified that when D. was approximately two-years old, she "laid right down in front of [him] stark naked and did a womanly sexual act," and that T.'s sister had been baby-sitting D. when this occurred. See id. at 428-29. Petitioner claimed that D. told him that her cousin taught her the act. See id. at 429. Thereafter, Petitioner told ...

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