United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Pro se petitioner Robert Lawrence ("Lawrence" or "Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the basis that he is being held in Respondent's custody in violation of his federal constitutional rights. Lawrence is incarcerated as the result of a judgment of conviction entered in New York State Supreme Court of Erie County (Michalski, J.) on May 13, 2009, following a jury verdict convicting him of one count of predatory sexual assault against a child (N.Y. Penal Law § 130.96) and one count of endangering the welfare of a child (id., § 260.10(1)).
II. Factual Background and Procedural History
In 2006, the victim, S.W., was ten-years-old and lived with her mother, Rose Knapp ("Knapp"), in the City of Buffalo. At some point in 2006, Knapp became romantically involved with then thirty-three-year-old Petitioner, and invited him to move in with them. S.W. testified that she liked Petitioner and even called him "dad".
Once, S.W. stayed home sick from school. Knapp, a school bus aide, went to work; S.W.'s sisters went to school. Petitioner stayed home to babysit S.W. Sometime after lunch, S.W. saw Petitioner in her mother's bedroom smoking pot. She returned to her own room. Later on, Petitioner entered her room, pushed her onto the bed, removed her clothes, got on top of her, and "put his private inside of her private." T.41-45, 53, 82-83.
S.W. testified that she was scared and was unable to push Petitioner off of her. She recalled that it hurt when he penetrated her. He moved back and forth for a while and when he was done, he got up and threatened to hurt her mother and sisters if she told anyone. He then left her bedroom. S.W. went to the bathroom, in tears. It hurt between her legs, and she noticed her urine was cloudy.
S.W. testified that she was too scared to tell her mother or sisters when they came home. Four days later, while at school, S.S. revealed the incident to her best friend. The friend in turn told a classmate, who informed the school's social worker, Deanna DeAngelis ("DeAngelis"), about the incident on April 18, 2007. DeAngelis privately spoke to S.W., who at first was very agitated that her friends had revealed her secret. As DeAngelis began to question her, however, S.W. put her head down and "shut down", crying quietly. DeAngelis eventually called Knapp and requested that she come to the school immediately.
S.W. was referred to the Child Advocacy Center, where she was examined by pediatric nurse practitioner Deborah Dee ("N.P. Dee") on April 23, 2007. S.W. said that "about a year ago", Petitioner had "put his privates in her private", and she pointed to the area between her legs. S.W. told N.P. Dee that she had not told her mother immediately because she was afraid her mother would not believe her and that she would get into trouble.
N.P. Dee conducted a physical examination which was negative for objective findings of sexual contact. N.P. testified that blunt genital trauma usually does not leave medical evidence. N.P. Dee noted that S.W. had Turner Syndrome, a chromosomal disorder often resulting in short stature, as well as kidney, thyroid, and heart issues. Persons with Turner's Syndrome typically do not develop secondary sex characteristics; females with Turner Syndrome almost always experience amenorrhea and infertility.
Knapp testified that, in retrospect, she was able to observe changes in her daughter following the incident in that S.W. was "a lot more angry" and was wetting the bed almost every night. Prior to the incident, she had been more loving and only had somewhat of a problem with bed-wetting. S.W. also began waking up during the middle of the night.
The prosecution called licensed social worker Stefan Perkowski to testify about Child Sexual Abuse Accommodation Syndrome ("CSAAS"), which he explained assists clinicians in understanding patterns of behavior common to sexually-abused children.
The jury returned a verdict convicting Petitioner as charged in the indictment. Petitioner was sentenced to an indeterminate term of 25 years to life on the predatory sexual assault conviction and a concurrent one-year definite term on his conviction for child endangerment. Represented by new counsel, Petitioner appealed his conviction to the Appellate Division, Fourth Department, of New York State Supreme Court. Petitioner filed a pro se supplemental appellate brief. On February 10, 2011, the Appellate Division unanimously affirmed the conviction. People v. Lawrence , 81 A.D.3d 1326 (4th Dep't 2011). Leave to appeal was denied by the New York Court of Appeals on June 8, 2011. People v. Lawrence, 17 N.Y.3d 797 (2011).
This timely habeas petition followed in which Petitioner raises the same grounds for relief that he asserted on direct appeal. Respondent answered the petition, interposing the affirmative defense of procedural default as to several of Petitioner's claims and arguing that, in any event, all of his claims lack merit. Petitioner did not submit a reply brief.
For the reasons that follow, the petition is dismissed.
III. Merits of the Petition
A. Denial of Due Process and Equal Protection
Lawrence argues that he was denied his rights under the Due Process Clause and Equal Protection Clause because he was prosecuted for predatory sexual assault against a child (a Class A-I felony under New York law) instead of first degree rape (a Class B felony under New York law). According to Lawrence, predatory sexual assault against a child and first degree rape are identical statutes but are impermissibly subject to different sentencing parameters and plea bargain restrictions. Since the statutes are identical, Lawrence asserts, the prosecution could not opt to prosecute him for the greater offense in a manner consistent with his due process and equal protection rights.
He also contends that the rationale of Apprendi v. New Jersey , 530 U.S. 466 (2000), was violated by the prosecution's decision to charge him with, and his eventual conviction of, the class A-II felony of predatory sexual assault against a child instead of the class B felony of first degree rape. He notes that in cases where the degrees of an offense overlap, the prosecution has the discretion to charge the higher degree based on its evaluation of the seriousness of the conduct. Lawrence argues that the jury likewise should have been instructed that it needed to adjudicate the "seriousness of the conduct" in order to convict him of predatory sexual assault against a child.
On direct appeal, the Appellate Division held that these contentions were not preserved for review. Lawrence , 81 A.D.3d at 1326 (citing, inter alia, People v. Schaurer , 32 A.D.3d 1241, 1241 (4th Dep't 2006)). The Appellate Division alternatively held that they were without merit. Id. at 1326-27. Respondent argues that these claims are procedurally defaulted due to the Appellate Division's reliance upon ...