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Gonzalez v. Artus

United States District Court, W.D. New York

February 11, 2015

ADAN D. GONZALEZ, Petitioner,
v.
DALE ARTUS, Respondent.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Adan D. Gonzalez ("Petitioner") has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that he is being detained in State custody in violation of his Federal constitutional rights. Petitioner is incarcerated as the result of a judgment entered on September 18, 2008, in Monroe County Court (Valentino, J.), of New York State, following a jury verdict convicting him of one count of Rape in the First Degree (N.Y. Penal Law ("P.L.") former § 130.35(3)), and three counts of Sexual Abuse in the First Degree (P.L. former § 130.65(3)).

II. Factual Background and Procedural History

Between February 1, 2007, and February 28, 2007, Petitioner raped and sexually abused S.P., the sister of his girlfriend, Tina Richardson ("Tina"). The abuse occurred at Tina's house at 1308 East Main Street, in Rochester, New York. Based on these acts, Petitioner was charged, by a Monroe County Grand Jury, with one count of Rape in the First Degree, and three counts of Sexual Abuse in the First Degree. Petitioner's trial commenced on January 15, 2008.

S.P. related that one night in February 2007, she spent the night at Tina's house. She could not recall the exact date, but she knew it was cold out and she was in fifth grade. She recalled that it was sometime around Valentine's Day. That night, S.P. was lying in Tina's bed, along with Tina and Petitioner. S.P. was lying closest to the wall, Tina was in the middle, and Petitioner was on Tina's other side. Petitioner and Tina's three-year-old daughter also was in her crib in the room.

At some point, S.P. fell asleep. She woke up to find Petitioner lying next to her and touching her leg. He then put his hand inside her pants and touched her buttocks and her "private, " which she explained was where she went "pee-pee". Then, Petitioner pulled down S.P's pants to her thighs and put his "private went into her [pee-pee]" "a little", which was painful to her. S.P. moved away, turned over, pulled up her pants, and went back to sleep.

Tina had been given Vicodin by Petitioner because she was having back pain, and slept through the entire incident. Tina recalled that when she had fallen sleep, she was in the middle of the bed, with Petitioner and S.P. on either side of her. When she woke up the next morning, Petitioner was in the middle of the bed and Tina was up against one wall; S.P. was in the same spot.

S.P. did not wake up her sister because she was afraid that Petitioner would hurt her or her family. She explained that she did not tell her sister or her mother the next day because she was still scared. Several months later, around Halloween, S.P. told her mother what had happened. At that time, Tina was no longer living with Petitioner and S.P. did not see him anymore.

A few days later, on November 6, 2007, S.P.'s mother, Tammy Richardson ("Tammy") called the police and spoke to a male officer. S.P. was hesitant to talk to him, so Tammy had to speak on her behalf. On December 11, 2007, they met with a female officer, Jacqueline Pulsifer, at Tammy's house, but it was very busy and S.P. still was hesitant to speak. Officer Pulsifer interviewed S.P. a second time at a children's center, which was quieter environment. There, S.P. told Officer Pulsifer what had happened. Officer Pulsifer referred the child to a pediatric nurse practitioner, who performed a pelvic examination but found no physical abnormalities. The nurse practitioner testified that it was common for children not to have any physical injury, even after penetration, because any injury can heal quickly.

Petitioner's attorney presented an alibi defense at trial and attempted to establish that even though S.P. could not pinpoint the date that the crime had occurred, Petitioner had a valid alibi for the entire month of February 2007. Defense counsel presented several witnesses to support this defense, including Petitioner's long-time friend, Marsh, who testified that she saw Petitioner almost every day. Defense counsel also called Petitioner's fiancee, who testified that in February 2007, Petitioner spent the weekend evenings and nights with her. Petitioner's mother testified that Petitioner lived with her in February 2007. Petitioner also testified in support of his alibi, and recounted the various parties he went to in February 2007, and friends' houses at which he stayed; his activities on Valentine's Day; and an overnight trip he took in the middle of February with friends. Petitioner denied that he spent a night at 1308 East Main Street during the month of February 2007, and he denied that he gave Vicodin to Tina. Petitioner denied that, during a telephone call to his mother, he said, "I'm trying to get out of here and I will say anything I can." Petitioner listened to a recording of the call and maintained that he only said "I'm just trying to get out." T.484-85. Petitioner testified that he did get stabbed in jail with a pencil, but he did not report it and did not receive any medical attention for it.

Several recorded telephone conversations between Petitioner; his mother, Ada Gonzalez ("Gonzalez"); and his fiancee, Carolynne Reed ("Reed"), were introduced into evidence. After his arrest, Petitioner called his mother and told her to call "Teo", his cousin who worked for the Rochester Police Department ("RPD"), and get the police report in this case from him. Gonzalez called Teo, but Gonzalez denied that he obtained S.P's confidential supporting deposition for her. She also denied that she told Petitioner that Teo told her, "I can show you the paper but I can't give it to you." After listening to a recording of a telephone conversation she had had with Petitioner, Gonzalez admitted that she had been on the phone talking with Reed and Petitioner when she said to them that the Teo "would let [her] see [the police report] but he wouldn't let [her] have it". T.383-90.

In another telephone conversation, on December 27, 2007, Petitioner asked Gonzalez to tell "Angel", Petitioner's brother, to tell Tina that he had been stabbed in jail. T.395-95, 400.

During a telephone conversation between Petitioner and Reed, he told her to call his friend, Amanda Marsh ("Marsh") and let her know that she has "to say she called [Petitioner] every single day, January, February, March at [his] house." Petitioner also told Reed, to tell another friend, "Rachael" that "she has to testify stating that she and Kiley were with me almost every single day. Don't say ...


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