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Green v. Legoney

October 25, 2012


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J



Petitioner Eric Green brings this pro se habeas corpus petition pursuant to section 2254 of Title 28 of the United States Code challenging his state court conviction following a jury trial in the New York State Supreme Court, New York County.*fn1 Petitioner was convicted of three counts of Rape in the First Degree*fn2 and one count of Sodomy in the Third Degree.*fn3 Petition was sentenced to nine years of imprisonment, followed by five years of post-release supervision.*fn4

On January 27, 2009,*fn5 petitioner filed the instant Petition, challenging his conviction on the following grounds: (1) the trial court's instruction to the jury on the charge of forcible rape violated petitioner's right to a jury trial under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution; (2) the prosecutor's summation deprived petitioner of a fair trial; (3) ineffective assistance of trial counsel; and (4) petitioner's sentence was harsh and excessive under the Eighth Amendment to the United States Constitution. For the following reasons, the Petition is denied.


A. The Offending Conduct

1. The Events of August 12, 2003

In early July 2003, "NS"*fn6 met petitioner at a day care center in Manhattan at which they were both employed.*fn7 After becoming acquainted, they had consensual sexual intercourse in early August 2003.*fn8 About one week later, on August 12, 2003, NS accompanied petitioner and a co-worker, Tyrell, to the roof of an apartment building, where petitioner suggested that NS have sexual intercourse with Tyrell. When NS refused, petitioner choked her.*fn9
Subsequently, NS accompanied Tyrell and petitioner downstairs to the apartment of a friend of petitioner's, Charles Hickman.*fn10 NS, thinking that she was going to have sex with petitioner, immediately entered Hickman's bedroom. Once she was there, though, petitioner demanded that she have sex with Tyrell.*fn11

A short time later, Hickman entered the room, and NS had sexual intercourse with him in an effort to gratify petitioner.*fn12

NS, Tyrell, and Hickman then accompanied petitioner to his grandmother's house, where they met petitioner's older brother, Earl Green.*fn13

There, Earl Green demanded that NS perform oral sex on him, and threatened that if she refused, he would "fuck her up."*fn14 NS, frightened, complied. Afterwards, she went home.*fn15

2. The Events of August 13, 2003

The next day, NS went to petitioner's apartment, where she and petitioner had consensual sexual intercourse in petitioner's bedroom.*fn16 Soon after,

NS overheard petitioner on the telephone inviting other people over. This made NS angry, because petitioner had promised that they would be alone.*fn17 Petitioner demanded oral sex, but NS refused. Then, petitioner pushed NS off the bed and forced his penis into her mouth. While so engaged, petitioner pressed the dull side of a knife against NS's face and said that he would kill her if she "[told] anybody."*fn18

Afterwards, Hickman entered the bedroom, and petitioner asked NS if she would perform sexual favors on Hickman if Hickman performed oral sex on her.*fn19 NS began crying, because she wanted to go home, and got dressed. Petitioner and Hickman then left the room.*fn20 A few minutes later, two men entered the room: a man later identified as Darmel Cox, and a man identified only by his nickname, "Vad."*fn21

After Cox and Vad arrived, petitioner returned to the bedroom, where NS remained, removed NS's pants, and threatened to throw them out the window if NS did not have sex with Cox and Vad.*fn22 Vad then raped NS. When Vad finished, Cox then raped NS.*fn23 Shortly afterwards, petitioner also raped NS.*fn24 Petitioner then allowed NS to leave, but not before warning her that if she told anyone, he would "do it to [her] all over again."*fn25 NS then put on her clothes and took the subway home.*fn26
Once home, NS falsely told her mother that a man on the subway had forced her back to his apartment at knife-point and raped her there.*fn27 NS's parents took her to the emergency room at Montefiore Hospital, where she repeated her story to police and medical personnel.*fn28 Later that day, police officers told NS that there were video cameras on the subway platform, and NS informed them that petitioner was the one who had raped her.*fn29

B. Procedural History

On April 4, 2005, petitioner was convicted by a jury of three counts of first degree rape and one count of sodomy in the third degree.*fn30 Petitioner, represented by new counsel, appealed his conviction to the Appellate Division, First Department, raising the following claims: (1) the court's instruction to the jury on the first degree rape charge that the "forcible compulsion" element of first degree rape included kidnapping, which was defined, in part, as the confinement of an acquiescent person under the age of 16, deprived petitioner of his right to a jury trial; (2) the prosecutor's comments during summation, bolstering the victim's testimony and asking the jury to picture themselves in her place, deprived petitioner of his right to a fair trial; (3) the petitioner's sentence was excessive and unduly harsh; and (4) the Clerk of Court improperly added a surcharge and fees to petitioner's sentence.

On September 8, 2007, the Appellate Division unanimously affirmed petitioner's conviction.*fn31 The court found that petitioner's claims regarding the court's charge and the prosecutor's summation were unpreserved, and that even if they were preserved, the court would have rejected them on the merits.*fn32 As to the jury instruction, the Appellate Division stated that "[t]he court made it abundantly clear to the jury that defendant was charged with forcible rape, and there is no reasonable possibility that the jury could have been misled into believing that the victim's age satisfied the element of force."*fn33 The Appellate Division also found no basis for reducing ...

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