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Colby H. Foss, Iii v. Supt. Steven E. Racette

November 28, 2012

COLBY H. FOSS, III, PETITIONER,
v.
SUPT. STEVEN E. RACETTE, RESPONDENT.



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

DECISION AND ORDER

I. Introduction

Pro se petitioner Colby H. Foss, III ("Petitioner" or "Foss") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being held in Respondent's custody in violation of his federal constitutional rights. Petitioner is incarcerated as the result of a judgment entered on June 1, 2005, in Niagara County Court of New York State, following a jury verdict convicting him of three counts of Criminal Sexual Act in the First Degree (N.Y. Penal Law ("P.L.") § 130.50(4)), and Endangering the Welfare of a Child (P.L. § 260.10(1)).

II. Factual Background and Procedural History

A. Overview

The convictions here at issue stems from allegations that during the summer of 2004, Petitioner forced S.D., the eleven-year-old step-son of Petitioner's half-brother, to engage in oral sexual conduct on at least three separate occasions. On July 29, 2004, a Niagara County grand jury charged Petitioner with three counts of Criminal Sexual Act in the First Degree, and Endangering the Welfare of a Child for the crimes relating to S.D. The grand jury also charged Petitioner with Course of Sexual Conduct Against a Child in the First Degree for crimes he was alleged to have committed against his step-son, J.A.

On December 14, 2004, Petitioner was indicted on additional charges--Sexual Abuse in the First Degree, Sexual Abuse in the Second Degree, Criminal Sexual Act in the First Degree, two counts of Criminal Sexual Act in the Second Degree, and one count of Endangering the Welfare of a Child for crimes relating to T.B, a friend of J.A.'s. The two indictments were consolidated for trial.

B. The Trial

J.A., thirteen-years-old at the time of trial, testified that he lived with his mother, Petitioner, and his four brothers and sisters on Oliver Street in the City of North Tonawanda, New York. J.A.'s mother, Erin Foss ("Mrs. Foss"), worked nights as a bartender, and Petitioner worked as a mechanic in a nearby auto repair shop.

In the spring and summer months of 2004, J.A. testified that Petitioner forced him to engage in oral sex several times a week. Petitioner always initiated these encounters at night when no one else was home. On a couple of occasions, Petitioner went in the bathroom with J.A., ran the shower, and stood J.A. on the ledge of the bathtub while he knelt in the shower and put his mouth on J.A.'s penis. T.629-34.*fn1

On one day in July of 2004, after J.A. and Petitioner returned home late at night from Petitioner's garage, J.A. went into Petitioner's room. Petitioner, who was watching a movie, directed J.A. to lie down on the bed and then lowered J.A.'s pants and put his mouth on J.A.'s penis. J.A. testified that Petitioner also engaged in the same conduct with him in J.A.'s bedroom and in the upstairs portion of the garage where Petitioner worked. J.A. testified that he was afraid to tell anyone about the abuse because Petitioner had threatened to hurt him.*fn2

T.B. was J.A.'s best friend, and they would often sleep over at each other's houses. On one night in the summer of 2004, T.B. slept over at J.A.'s house, and both T.B. and J.A. were asleep on the sofa in the living room. T.B. testified that he woke up in the middle of the night to find Petitioner touching his (T.B's) penis with his hand. T.862-69. That same night, T.B. also observed Petitioner masturbating. T.870.

On another night when he was sleeping over at J.A.'s house, T.B. was awakened by Petitioner touching T.B.'s penis. T.871. There was a third occasion on which T.B. was spending the night, and he again was awakened by Petitioner touching his penis with his hand and mouth. In addition, T.B. saw Petitioner masturbating. T.871-72. According to T.B., this occurred several more times throughout the school year.

S.D., the eleven-year-old step-son of Petitioner's half brother, testified that in mid-May of 2004, he slept over at Petitioner's house on the weekends in order to spend time with J.A.

T.754, 779-82. One day in mid-May, when S.D. and Petitioner were upstairs in the garage together, Petitioner undressed S.D. and put his hand and mouth on S.D.'s penis. Petitioner told S.D. to "trust him" and threatened S.D. with no longer being permitted to spend time with J.A. if he told anyone what happened between them.

T.785-86.

The following night, S.D. was about to take a shower at

Petitioner's house when Petitioner came into the bathroom, put S.D. on the sink, and touched S.D.'s penis with his mouth. T.788-89.*fn3 Petitioner touched S.D.'s penis with his hand and mouth almost every subsequent time S.D. stayed at Petitioner's house. T.790-91.

The abuse was reported by Amanda Faulkner ("Faulkner"), who lived across the street from Petitioner's garage with her boyfriend and her two children. T.488-89. One day in July of 2004, Faulkner took her son hiking with J.A. and T.B. As they were returning home, S.D., who appeared dirty and disheveled, approached Faulkner's car.

T.489-90. When Faulkner opened the car window, J.A. yelled out, "Oh, it's Colby's little cupcake." T.490. S.D., visibly upset, covered his face with his hands. Faulkner got out and gave S.D. a hug, he became teary-eyed. When she asked if something had happened, S.D. shook his head yes and said that Petitioner had "kissed his private" while he was sleeping on the couch at Petitioner's house. T.790-93.

Faulkner decided to take the boys to her parents' home. During the drive, J.A. also confided to Faulkner that Petitioner had sexually abused him "lots of times," and that he did not know what to do because he was scared and it made him feel sick. T.494, 649-50. Later that evening, S.D. told Faulkner and her mother that on another occasion Petitioner followed him into the bathroom, turned on the shower and began "kissing him down there." T.494. Faulkner stayed the night at her parents' house with the boys, and brought S.D. and J.A. to the North Tonawanda police station the following morning.

At around noon on July 18, 2004, North Tonawanda Police Captain William Hall and Detective Larry Kuebler were called into the station to handle the report of sexual abuse. Detective Kuebler interviewed Faulkner and the boys separately. At around 3 p.m., Detective Karen Smith joined the investigation.

Captain Hall and Detective Kuebler unsuccessfully attempted to find Petitioner at his home and the garage. At about 6:30 p.m., Detective Kuebler reached Petitioner on his cell phone. Petitioner stated that he could not immediately go to the station because he was at a junkyard, but that he would come later. About an hour later, Petitioner called Detective Kuebler to ask more specifically why he wanted to speak to him. Petitioner asked if people had complained "about him picking up kids in his school bus." He then asked if "it was about a boy named Ryan." T.568-69.

When Detective Kuebler again asked if Petitioner would come to the station, Petitioner replied that it would take a while for him to get there. Petitioner also stated that he assumed that he was going to be arrested because everyone had told him the police were looking for ...


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