The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge
Pro se Petitioner Carl L. Rogers ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered July 1, 2005, convicting him, after a jury trial, of Rape in the First Degree (New York Penal Law ("Penal Law") § 130.35(3)) and Criminal Sexual Act in the First Degree (Penal Law § 130.50(3)) in New York State, Supreme Court, Monroe County. Petitioner was sentenced to two concurrent determinate terms of twenty-five years imprisonment and five years post-release supervision.
For the reasons stated below, habeas relief is denied and the petition is dismissed.
II. Factual Background and Procedural History
In January 2005, a Monroe County grand jury charged Petitioner with two counts of rape in the first degree, for engaging in sexual intercourse with nine-year-old B.W. in September and November 2004; one count of criminal sexual act in the first degree, for engaging in anal sexual conduct with B.W. in December 2004; and one count of rape in the first degree, for engaging in sexual intercourse with B.W.'s seven-year-old sister, W.W., in December 2004. See Respondent's Exhibit ("Resp't Ex.") A at 9-10, 14. The first count of the indictment (rape in the first degree related to B.W.) was dismissed prior to trial, and the fourth count of the indictment (rape in the first degree related to W.W.) was dismissed during trial. Trial Transcript ("T.T.") 243-44, 489-90.
On June 6, 2005, Petitioner proceeded to trial before Monroe County Supreme Court Justice David D. Egan.
At the time of trial and at the time of the abuse in late 2004, B.W. was nine-years-old and W.W. was seven-years-old. T.T. 278, 379. B.W. and W.W. lived with their mother, T.W., and their three year old brother, N.W., in a two-bedroom apartment on Phelps Avenue in Rochester, New York. T.T. 278-81, 330-31. T.W. met Petitioner three years prior to the trial, and they had lived together in Arkansas with T.W.'s children. In February of 2004, T.W. moved from Arkansas to Rochester with Petitioner and her children, eventually moving into the Phelps Avenue apartment in August of 2004. T.T. 279-84, 335, 337-38, 382-87, 433-35.
T.W. testified that on the afternoon of December 31, 2004, B.W., accompanied by W.W., came into her bedroom and gave her a handwritten note from B.W. stating that Petitioner had "stuck his d*** in me and [W.W.]," and had told them not to tell anyone. T.T. 290-94, 354-55. After reading the note, T.W. called 911. T.T. 294, 355. While T.W. was waiting for the police, Petitioner came inside and T.W. repeated the accusations, which Petitioner denied. T.T. 294-96.
When the police arrived, a male investigator spoke to each girl separately, while other officers spoke to Petitioner. T.T. 296-97, 300.
After the police interview, T.W. took the girls to Strong Memorial Hospital ("Strong"), where they were examined by a doctor and interviewed by a doctor and a social worker. Strong referred T.W. to the REACH (Referral and Evaluation of Abused Children) Clinic, where she took the girls a few days later for additional examinations. T.T. 300-03, 361-62, 409-10, 440-41, 446-47.
B.W. testified that one day in December 2004, when she got home from school, she found Petitioner at home with W.W. and N.W. She learned that Petitioner had brought home clothes from her school for N.W. T.T. 388-90, 439-40. B.W.'s mother was at work.
T.T. 399. B.W. began her homework, and, at some point, Petitioner called B.W. into her mother's bedroom. T.T. 390-91, 444. He pulled down B.W.'s pants, put her on the bed, pulled down his pants, got on top of her, and put his "private part" in her "front private part" and moved "up and down." T.T. 391-94, 444-45. While Petitioner was engaged in sexual intercourse with B.W., W.W. came into the room. Petitioner eventually stopped having sex with B.W. and turned his attention to W.W. Petitioner pulled down W.W.'s pants, put her on the bed, and had vaginal intercourse with her. T.T. 394-96, 398-99, 445-46. B.W. testified that before she was allowed to leave the bed, Petitioner "turned [her] around" and put his private part in her "back private part." T.T. 397-98.
B.W. testified further that Petitioner also abused her on a Saturday in November of 2004 while her mother was at work. W.W. and N.W. were in the playroom when Petitioner called B.W. into his bedroom. T.T. 400-01, 403, 447-49. Petitioner directed her to get on the bed, which she did. He then pulled down her pants and had her lie down sideways, whereupon he laid down next to her and put his penis in her "back private part." T.T. 401-03. Petitioner told B.W. not to tell anyone what happened. T.T. 403. Later during her testimony, B.W. clarified that during the November incident, Petitioner put his penis in her vagina, not her back "private part," and that she had been "mixed up." T.T. 411-12. She then recounted three incidents of abuse: anal and vaginal sex in December, vaginal sex in November, and an incident of anal sex in September 2004. T.T. 412-13. B.W. stated that it was hard to keep all of the incidents "straight" because "[i]t's so much to talk about." T.T. 413.
B.W. testified that she wrote the note to her mother describing the abuse because she "couldn't take it no more cause it started hurting [her] what he was doing." T.T. 404-05. She also testified that when the police arrived at her home and interviewed her, she told the investigator only about the anal sex in December because the anal intercourse "hurted more than what he did to the front," and because the investigator did not ask her "if [Petitioner] did anything else." T.T. 408-09, 425-28.
W.W. also testified at the trial, after the court determined that she was qualified to give sworn testimony. T.T. 463-76. The trial court noted, however, that she "might shut down at times" because she was afraid of the judge and defense counsel. T.T. 475-76. Subsequently, W.W. had trouble testifying and was repeatedly unresponsive to questioning. T.T. 480-85. She recalled a school day when Petitioner brought some clothes home, but when she was asked, "[d]id something happen that day when you got home from school," she only replied "yes." T.T. 484-85. W.W. agreed that "this [was] hard . . . to talk about" because "everybody [was] looking at" her. T.T. 485. Because of W.W.'s non-responsiveness, the court ordered a brief recess. T.T. 486. Outside the jury's presence, the People requested that W.W. be able to continue testifying with the help of a victim advocate upon whose lap W.W. wanted to sit while facing away from the jury. T.T. 486. Over Petitioner's objection, the trial court granted this request. T.T. 487. While sitting on the advocate's lap, W.W. testified that she remembered the day that Petitioner brought home clothes, and answered "yes" to the question, "[d]id [Petitioner] do something to you." T.T. 488-89. The court, however, ended W.W.'s testimony when she answered "yes" to the questions, "is this too hard for you to do," and "[d]o you want to go now." T.T. 489. Given W.W.'s inability to testify, the People moved to withdraw and dismiss the count of the indictment concerning W.W. Without objection from the defense, the trial court ordered the count withdrawn and dismissed. T.T. 489-90.
Dr. Ellen Sofia Bass, a pediatrician at Strong's pediatric emergency room, testified that she and an associate examined B.W. on December 31, 2004. T.T. 580-82; see Resp't Ex. E. Dr. Bass examined B.W. and found a small "cut" or "abrasion" between B.W.'s vaginal and anal openings. T.T. 586-88, 596-97. Bass did not perform an internal digital rectal examination. T.T. 587-88, 596-97. B.W. did not have any vaginal discharge, bleeding, bruises, or hematomas. T.T. 597-99.
Dr. Ann M. Lenane, an emergency room pediatrician at Strong and medical director of the REACH Clinic, testified as an expert in the field of child sexual abuse. T.T. 601-18, 648, 650-51. Dr. Lenane examined B.W. on January 4, 2005. T.T. 618-19. According to Dr. Lenane, B.W. had no vaginal discharge, and tested negative for both gonorrhea and chlamydia. T.T. 629-30, 677-78. Dr. Lenane found "two linear white avascular areas," one of which was on B.W.'s posterior fourchette and one of which was on the perianal area. T.T. 631. Dr. Lenane was unable to determine whether the two white areas were scars from trauma or normal variants created during embryonic development. T.T. 631-32. Dr. Lenane opined that the posterior fourchette lesion was consistent with vaginal penetration, but could be a normal midline variant. T.T. 633, 680-82. She also opined that the perianal lesion was consistent with anal penetration, but could be a normal variant as well. T.T. 633-34.
Petitioner testified on his own behalf, and denied the allegations against him. T.T. 706-761.
Dr. Lawrence Rosenberg testified that he was a board certified pediatrician licensed to practice in Pennsylvania. T.T. 498-502. He testified that he had conducted approximately 6,000 examinations involving suspected child sexual abuse victims and had testified approximately 600 times as an expert on sexual abuse. T.T. 502, 532-33. In preparing to testify at Petitioner's trial, Dr. Rosenberg testified that he reviewed police reports and B.W.'s medical and school records, but did not speak to or examine B.W. T.T. 503-05, 536-37; see Resp't Ex. E. According to Dr. Rosenberg, B.W. had no rectal tenderness, fissures, bruising, or hematomas. T.T. 505-10. Dr. Rosenberg found that B.W. had "a superficial fissure between [her] vagina and the opening of [her] rectum," but that the fissure was not caused by traumatic vaginal or anal intercourse. T.T. 506-07, 509-10.
On cross-examination, the prosecutor questioned whether Dr. Rosenberg could render an unbiased opinion, given that he had been falsely accused by his ex-wife of sexually abusing their daughter. T.T. 559-60. He responded that the accusation had been made while the daughter was in her mother's custody, and that the mother had been "committed twice for paranoid schizophrenia." T.T. 559-60. Dr. Rosenberg denied that he was "too close to the subject matter to render an objective unbiased opinion." T.T. 560. On re-direct, Dr. Rosenberg stated that he was capable of rendering an objective opinion in child abuse cases because he had testified about 600 times for the prosecution. T.T. 560-61.
(D) Verdict and Sentencing
On June 10, 2005, the jury found Petitioner guilty of the remaining counts of the indictment. T.T. 881. On July 1, 2005, the court sentenced Petitioner to concurrent determinate terms of 25 years imprisonment followed by 5 years of post-release supervision. Sentencing Mins. [S.M.] 14-16.
Petitioner filed a counseled brief (Resp't Ex. F) and an amended counseled brief (Resp't. Ex. G) on direct appeal in the Appellate Division, Fourth Department. The Appellate Division unanimously affirmed Petitioner's judgment of conviction on February 11, 2010, and leave to appeal was denied. People v. Rogers, 70 A.D.3d 1340 (4th Dep't 2010) (Resp't. Ex. J), lv. denied, 14 N.Y.3d 892 (2010) (Resp't. Ex. M).
(F) Petitioner's Motion to Vacate
On or about July 12, 2011, Petitioner filed a pro se motion to vacate his judgment of conviction, pursuant to N.Y. Crim. Proc. Law ("CPL") § 440.10 (Resp't Ex. Q). On October 25, 2011, the Monroe County Supreme Court denied Petitioner's motion on ...