JOSEPH F. SANDERSON, Petitioner,
DAVID M. UNDER, SUPERINTENDENT WYOMING CORRECTIONAL FACILITY Respondent.
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Pro se Petitioner Joseph F. Sanderson ("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 September 11, 2006, in New York State, County Court, Orleans County, convicting him, after a jury trial, of two counts each of Criminal Sexual Abuse in the First Degree (N.Y. Penal Law ("Penal Law") § 130.50), Sexual Abuse in the First Degree (Penal Law § 130.65), and Endangering the Welfare of a Child (Penal Law § 260.10).
II. Factual Background and Procedural History
An Orleans County Grand Jury charged Petitioner with three counts of sexual abuse in the first degree,  two counts of endangering the welfare of a child, and one count each of criminal sexual act in the first degree and one count of criminal sexual conduct against a child in the second degree. The Grand Jury later charged Petitioner with three additional counts of criminal sexual act in the first degree. See Ind. Nos. 06-59 and 07-25 at Resp't Ex. B. These charges, set forth in two separate indictments, were consolidated for trial.
Prior to trial, a Huntley hearing was conducted on December 21, 2006 before Judge James P. Punch. At the hearing, Investigator Kenneth M. Strickland of the Orleans County Sheriff's Department testified that Petitioner came to the Sheriff's Department on June 22, 2006 and spoke with him. Hr'g Mins. [H.M.] 5-6. He testified that, at that time, Petitioner was not in custody. H.M. 6. After a fifteen to thirty minute conversation, Investigator Strickland typed out Petitioner's statement, and Petitioner read it over and signed it. H.M. 8. Investigator Strickland testified that he made no threats or promises in exchange for Petitioner giving his statement. At no time did Petitioner ask for an attorney or request that the conversation with Investigator Strickland end. H.M. 9. According to Investigator Strickland, Petitioner was at the Sheriff's Department for about thirty to forty minutes. H.M. 10. At Investigator Strickland's request, Petitioner returned to the Sheriff's Department on August 23, 2006, and spoke with him again. Investigator Strickland did not make any threats or promises to Petitioner on August 23, 2006. H.M. 12. Investigator Strickland did not arrest Petitioner that day. H.M. 12.
At the close of the hearing, the court found that Petitioner's statements on both dates were voluntary, and that there were no promises made to Petitioner in return for his statements and there was no evidence of coercion. Accordingly, the court denied Petitioner's motion to suppress his statements. H.M. 52-53.
On May 7, Petitioner proceeded to a jury trial before Judge Punch.
A. The Trial
1. The Prosecution's Case
Amanda W. ("Amanda") testified that she has three children with different fathers: A.W., J.S. and T.S. Petitioner is the biological grandfather of T.S. A.W. and J.S., although not biologically related to Petitioner, consider Petitioner and his wife Thomasa to be their grandparents. T.T. 200-202, 212, 227, 296-97.
When A.W. was 7 or 8 years old, while she was at Petitioner's house, Petitioner rubbed A.W.'s "vaginal area" over her clothes. T.T. 233, 237. At that time, A.W. "didn't understand what he was doing, " and A.W. did not tell anyone. T.T. 238. Around Christmas 2003 or 2004 when A.W. was 9 or 10 years old, A.W. stayed over night at Petitioner's home. T.T. 238-239. During that visit, A.W. awoke to find Petitioner pulling down her pants. T.T. 238-239, 241. On another occasion when she stayed over night at Petitioner's house, A.W. awoke to find Petitioner rubbing her vaginal area. T.T. 243-244. After one of these encounters, Petitioner told A.W. to "keep it a secret." T.T. 248.
On Friday, May 12, 2006, Amanda dropped her three children off at Petitioner's house around 6:00 or 7:00 p.m. T.T. 212. At about 9:00 p.m., Thomasa went to the grocery store with J.S. and T.S., while A.W. stayed at home with Petitioner. T.T. 228. At that time, Petitioner tried to kiss A.W. but she moved her head and he kissed her cheek. T.T. 228-229.
After J.S. returned from the store with Thomasa, she went to bed in a guest bedroom that she shared with A.W. that night. T.T. 300. At some point, Petitioner came into the guest bedroom, reached under J.S.'s pajamas, and touched her "private, " "between [her] legs." T.T. 309-310. Petitioner then took J.S. outside the bedroom and touched her "private" with his hand and "[h]is tongue." T.T. 311-312. Petitioner also "put his private in [J.S.'s] mouth." T.T. 312. J.S. described Petitioner's private as the location on his body where Petitioner "goes to the bathroom." T.T. 313. Following J.S.'s encounter with Petitioner, she went back to bed. T.T. 314. The next morning, J.S. told A.W. what had happened. T.T. 246, 314. A.W. spoke with her friend who convinced her to go to the school's guidance counselor. T.T. 246. After A.W. spoke to her guidance counselor, Child Protective Services ("CPS") came to see her. T.T. 246-247.
Orleans County Sheriff's Department Investigator Strickland spoke with A.W. and J.S. in June 2006. T.T. 349. Two days later, Investigator Strickland drove to Petitioner's house with CPS case worker Donna Snell ("Snell"). T.T. 351. Investigator Strickland told Petitioner that he was investigating a sex abuse case involving two children who had been to his house and asked if Petitioner could come to his office to speak with him. T.T. 351. On June 22, 2006, Petitioner went to Investigator Strickland's office for an interview. T.T. 353-354. Petitioner was not in handcuffs when he spoke with Investigator Strickland. T.T. 353. Investigator Strickland told Petitioner that Petitioner's granddaughters had alleged that Petitioner had touched them. T.T. 356. During the course of their conversation, Petitioner stated that he had touched J.S. once, but that he had not touched A.W. T.T. 356. After their conversation, Investigator Strickland typed out Petitioner's statement, gave him an opportunity to read it, and Petitioner signed it. T.T. 356-359. Petitioner's statement was introduced into evidence without objection. In that statement, Petitioner stated that, "around two months ago" he had "sexual contact" with J.S. He stated further that, "[he] was alone with [J.S.] and [he] started to horse around with her and [he] put [his] hands on her vagina and rubbed it and on her belly." T.T. 359-360.
Petitioner came to Investigator Strickland's office a second time on August 23, 2006. T.T. 363. Petitioner was not in handcuffs on that date. T.T. 364. Investigator Strickland told Petitioner that he had spoken to A.W. and J.S. again and that "some of the things weren't really adding up." T.T. 364. Investigator Strickland asked Petitioner whether anything else had happened with A.W. or J.S. T.T. 364. In response, Petitioner stated, "I really don't recall anything else that I did, but I do block things out and you know I can't guarantee that nothing else happened. I do block things out." T.T. 364. When Investigator Strickland asked Petitioner whether there would be a reason for the girls to lie, Petitioner stated that "he didn't think there would be a reason" for them to lie and "he didn't believe they were liars." T.T. 364.
Jack Coyne, M.D., a forensic pediatrician, testified that he examined J.S. on June 6, 2006. Even though the general exam was normal, he could not testify whether or not she was sexually abused. According to him, in at least seventy percent of cases in which children are sexually abused, there is no objective physical evidence of sexual abuse. T.T. 327-334. Dr. Coyne testified that the lack of objective evidence of the manual rubbing and licking of the vagina by Petitioner was exactly as expected, as the hymenal tissue in children is seldom disturbed by this type of touching. T.T. 334-335.
2. The Defense's Case
Petitioner testified in his own defense, and also called his wife Thomasa as a witness.
According to Thomasa, on Thursday, May 11, 2006, Amanda called Thomasa and asked Thomasa if Amanda's children could spend the weekend at Thomasa's house. T.T. 399. Thomasa told Amanda that they could, provided that A.W. watched J.S. and T.S. while Petitioner and Thomasa were at work. T.T. 399. Thomasa picked up J.S., A.W., and T.S. on May 12, 2006 and arrived home at around 6:00 p.m. T.T. 397-398, 401. She then went out shopping with J.S. and T.S., while A.W. stayed at home. T.T. 401. When she returned home at about 8:15 p.m., A.W. was watching TV. T.T. 401. Thomasa then got the children ready for bed. T.T. 402. A.W. and J.S. slept upstairs, while T.S. slept downstairs on the sofa. T.T. 402.
Thomasa and Petitioner then went to bed in their bedroom. Thomasa woke up at about 3:00 a.m. when Petitioner went to the bathroom. T.T. 414, 422, 467. When Petitioner returned to his bedroom about 3 to 5 minutes later, he spoke with Thomasa and then went back to sleep. T.T. 422, 424, 464, 467.
Petitioner testified that at about 5:00 a.m., he went to work. T.T. 467. Thomasa testified that when she left for work that day, the children were still asleep. T.T. 424-425. When Petitioner returned home at about 11:50 a.m., A.W. and J.S. were watching TV. T.T. 468. According to Petitioner, A.W. asked Petitioner if he was going to take them to McDonald's. T.T. 468. Petitioner told A.W. that he would take the children to McDonald's after he took a half hour nap. T.T. 469. While Petitioner was trying to nap, A.W. twice asked Petitioner when they would be leaving. J.S. also separately asked Petitioner when they would be leaving. T.T. 469-479. Eventually Petitioner drove the children to McDonald's, stopping at Thomasa's place of employment on the way. T.T. 470. When A.W. became upset by this, Petitioner explained to her that he needed to get money from Thomasa for lunch. T.T. 470.
After the children ate lunch, Petitioner delivered a hamburger to Thomasa. T.T. 471. Thomasa told the children to let Petitioner take a nap when they returned home. T.T. 471. In response, A.W. "copped an attitude and stormed out of the store" where Thomasa worked. T.T. 471-472. A.W. then insisted that she go home to her mother's house, rather than to Petitioner's house. T.T. 472. When J.S. and T.S. indicated that they wanted to stay at Petitioner's house, Petitioner told A.W. that he was not going to take just one child home. T.T. 472. When Petitioner and the children arrived at Petitioner's home, the children played outside. T.T. 472. About five minutes later, T.S. told Petitioner that all the children wanted to go home. T.T. 472. When Petitioner asked T.S. why they had decided they wanted to leave, T.S. replied, "[A.W.] told us that we were going home." T.T. 473.
A few days later, Thomasa and Petitioner received a letter in the mail that accused them of child endangerment. T.T. 427, 478-479. After they received the letter, Investigator Strickland and case worker Snell came to Petitioner's home and spoke with Thomasa and Petitioner. T.T. 422, 427-428, 432. They told Thomasa and Petitioner that the complaint was against both of them. T.T. 432. Thomasa told them that the allegations were "all false, " and after 15 or 20 minutes, left Petitioner's home. T.T. 432.
At some point, Investigator Strickland contacted Thomasa to schedule an appointment for Petitioner to meet with him. T.T. 434-435. Petitioner and Thomasa later drove to Strickland's office, where Petitioner spoke with Investigator Strickland while Thomasa met with a caseworker. T.T. 436, 448, 455, 482.
Petitioner confirmed that he went to Investigator Strickland's office on June 22, 2006, and understood that he could leave at any time and that he did not have to talk with him at all. T.T. 483-484. According to Petitioner, at the time he spoke with Investigator Strickland, Investigator Strickland was wearing a "tank top" with a badge around his neck. T.T. 479. Petitioner described Investigator Strickland as "stocky, " "quite muscular, " with "some mighty big arms" and "tattoos on both arms." T.T. 479. According to Petitioner, "just the size of [Investigator Strickland] would scare somebody." T.T. 479.
At the Sheriff's Office, Petitioner asked Investigator Strickland about the "severity of the charges" involved in the investigation. T.T. 455, 489. Investigator Strickland told Petitioner that he and his wife "could both go to jail." T.T. 455. However, Investigator Strickland told Petitioner that if he made an admission and went for therapy, he "wouldn't probably go to jail." T.T. 455. Petitioner testified that he "wanted to protect [his] wife, " and was afraid that she would go to jail. T.T. 456. Because Petitioner had participated in therapy in the early 1970s,  he figured that it "would be easy." T.T. 456. Therefore, he "figured [he] would give [Investigator Strickland] a statement and go up and get the therapy and that would [be]... the end of it." T.T. 455.
According to Petitioner, Investigator Strickland suggested that he say "something about child sexual abuse" in his statement. T.T. 456. Although Petitioner knew that sexual contact with a 7year-old child was a serious crime, he testified that it was his idea to state that he touched J.S.'s vagina, the touching "lasted about two minutes, " he "knew it was wrong, " and that he felt "ashamed." T.T. 484-485, 487-488. Petitioner testified that it was also his idea to state that he had sexual abusers in his family, and that although he did not think that he had a problem, he recognized that he "need[ed] help, " and that he was "going to go out and get it right away." T.T. 485-487. Petitioner testified that before he signed his statement, he read a legend on his printed statement affirming that "all facts" contained in his statement were "true to the best of [his] memory and knowledge." T.T. 488. Petitioner also confirmed that no one forced him to sign his statement. T.T. 488-489. Petitioner maintained, however, that the statements that he made on June 22, 2006 and contained in his signed statement were false. T.T. 481.
Petitioner testified that he returned to the Sheriff's Office on August 23, 2006. T.T. 493. At that time, Petitioner denied telling Investigator Strickland that he did not remember touching the girls, and maybe he was blocking it out. T.T. 493. He further denied telling Investigator Strickland that ...