United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Proceeding pro se, Christopher Diaz ("Petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is in state custody in violation of his federal constitutional rights. Petitioner is serving an aggregate sentence of 15 years pursuant to a judgment of conviction entered December 14, 2005, in New York State Supreme Court, Monroe County (Sirkin, A.J.), following a jury trial. Petitioner was convicted of Criminal Sexual Act in the First Degree (N.Y. Penal Law ("P.L.") § 130.50(3)), Sexual Abuse in the First Degree (P.L. § 130.65(3)), and Endangering the Welfare of a Child (P.L. § 260.10(1)).
II. Factual Background and Procedural History
A. Petitioner's Criminal Proceedings
In 2005, Petitioner lived in an apartment building in the Town of Irondequoit, with his girlfriend, Lindsay Ziegler ("Ziegler") and her three children. Ten-year-old TW lived across the hall with her mother, and her two younger siblings. Petitioner sometimes would babysit for TW and her younger siblings. On February 26, 2005, while TW was inside Petitioner's apartment, he removed her shirt and touched her breasts, pulled down her shorts and underwear, and inserted his finger into her vagina. Petitioner later kissed TW on the lips and told TW not to tell her mother about what he had done.
On the afternoon of March 2, 2005, TW's mother went to the store with her two younger children and left TW at home to do her homework. Prior to leaving, TW's mother let Petitioner know she was going out and that TW was by herself. After she left, Petitioner went into TW's apartment and brought her into the kitchen. He pulled her shorts down and was about to touch her vagina when Ziegler called for him. Petitioner went to the door and blocked it while TW pulled her clothes back on. Petitioner went home but returned to TW's apartment a short time later and asked if she had any bleach. TW said there might be some in the basement and proceeded downstairs to look, with Petitioner following her.
Once they were in the laundry room, Petitioner asked her if she had ever "sucked anyone's penis before." T.160. When she said "no, " Petitioner grabbed her finger, put it in his mouth, sucked it, and said, "That's how you do it." Id . Petitioner then pushed TW's head down near his crotch, inserted his penis into her mouth, and moved it back and forth. Petitioner "rocked back and forth" like that for a bit and then stopped. He went into the corner where TW saw him "pulling back and forth on his penis" until "some white stuff fell on the floor." T.161. Petitioner told TW not to tell anyone. TW went back upstairs to her apartment. Later that day, Petitioner went up to TW's apartment, sat next to her on the sofa, pulled down her shorts, and inserted his finger into her vagina. Again, Petitioner told TW not to tell anyone.
On March 9, 2005, while TW was inside Petitioner's apartment, Petitioner attempted to put his hand into TW's vagina. When TW said that she had her period, Petitioner rolled his eyes and stopped.
On March 10, 2005, TW and her mother watched a television movie about a girl who had been sexually molested. After the movie, TW told her mother about what Petitioner had done, and her mother called the police.
The following day, the police arrested Petitioner at work. After waiving his rights, Petitioner made a number of inculpatory oral and written statements to Investigator Jeffrey Bove ("Inv. Bove"). Petitioner told Inv. Bove that about a week earlier, he had asked TW to borrow some bleach, but she could not find it in her kitchen. TW told Petitioner that there might be some downstairs in the basement laundry room. While they were still in the kitchen, Petitioner "pulled [TW's] shirt apart" and "touched her breasts." T.287. As they walked down the stairs to the laundry room, Petitioner took his penis out of his pants and "play[ed]" with it. Id . When they entered the laundry room, Petitioner asked TW "if she ever sucked on any one before, and she said no." T.287-288. Petitioner then put TW's finger into her mouth and moved her finger back and forth. TW got on her knees in front of him, but when Petitioner heard his daughter coming down the steps, TW stood up. Petitioner put his penis back in his pants and told TW not to tell anyone. At that point, Ziegler walked into the laundry area and asked what TW was doing there. TW explained that she was trying to get the bleach but could not reach it. Petitioner then held his daughter up and she tried to get the bleach that was on the other side of a wire fence, but she dropped the bleach container. After Ziegler, TW and Petitioner's daughter left, he stayed in the basement by himself and masturbated. Petitioner signed a written statement summarizing his admissions to Inv. Bove.
At trial, however, Petitioner claimed that his confession to Inv. Bove was the product of coercion and psychological pressure. Petitioner testified that Inv. Bove said that he was "going to nail [Petitioner]" and that "[t]he only way you're leaving here today is if you write down what your story says, [and it] matches what [TW's] story says." T.344-345, 348. Petitioner denied having any contact of a sexual nature with TW. T.358.
During the course of the police investigation, Officer Alan Laird ("Officer Laird") went to the basement of Petitioner's apartment building on March 10, 2005, and used an alternative light source to see if he could detect any bodily fluids. Certain spots by the western wall of the basement storage area fluoresced. However, no spots fluoresced in the areas on the floor or behind the basement door, where TW said that Petitioner forced her to perform oral sex and later masturbated. Officer Laird took swabs of the fluorescing areas and sent them for testing. He returned to the crime scene on June 17, 2005, and again used the alternative light source. That time, he saw three fluorescing spots on the floor near the western wall.
The parties entered to the following evidentiary stipulation regarding the results of the DNA testing conducted on the swabs collected by Officer Laird: no sperm was found on the swabs taken from the basement on March 10, 2005; some of the swabs taken from the basement on June 17, 2005, contained sperm; DNA testing on the June 17, 2005 sperm samples revealed DNA profiles from two different, unknown males; and DNA testing indicated that Petitioner was not the source of either of the DNA profile obtained from the June 17, 2005 swabs. T.311; SR.170-172.
The jury found Petitioner guilty of the charges based on events alleged to have occurred on March 2, 2005, i.e., first-degree criminal sexual act, first-degree sexual abuse, and endangering the welfare of a child. The jury acquitted Petitioner of all of the remaining counts, which were based on the alleged events of February 26, 2005, and March 9, 2005.
On December 14, 2005, Petitioner was sentenced to concurrent determinate prison terms of 15 years for the first-degree criminal sexual act conviction, 5 years for the first-degree sexual abuse conviction, and 1 year for the child endangerment conviction. The 15-year and 5-year sentences included 5-year terms of post-release supervision.
B. Post-Conviction Proceedings
Petitioner's conviction was unanimously affirmed on direct appeal. People v. Diaz, 52 A.D.3d 1230 (4th Dep't), lv. denied, 11 N.Y.3d 831 (2008). His pro se motion for a writ of error coram nobis in the Appellate Division was unsuccessful. People v. Diaz, 66 A.D.3d 1499 (4th Dep't 2009), lv. denied, 13 N.Y.3d 938 (2010). He also filed a pro se motion to vacate the judgment pursuant to C.P.L. § 440.10 in Monroe County Supreme Court (Marks, J.) ("the 440 Court"), which was denied. The Appellate Division granted Petitioner's application for leave to appeal the 440 Court's order, but ultimately affirmed the 440 Court's order for the "reasons stated in the decision." People v. Diaz, 112 A.D.3d 1348 (4th Dep't 2013), lv. denied, 22 N.Y.3d 1156 (2014).
This timely habeas petition followed. Respondent received permission to file an oversized brief and to file the state court records under seal to protect the victim's privacy. After ...