United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, District Judge.
Proceeding pro se, John Gayden, Jr. ("Petitioner") instituted this action pursuant to 28 U.S.C. § 2254. Petitioner challenges the constitutionality of his detention in Respondent's custody pursuant to a judgment entered against him in New York State Supreme Court, Monroe County (Valentino, J.), on April 20, 2007, following a jury verdict convicting him one count of Course of Sexual Conduct Against a Child in the First Degree (New York Penal Law ("P.L.") § 130.75(1)(b)).
II. Factual Background and Procedural History
The conviction here at issue stems from allegations that Petitioner sexually abused his girlfriend's eleven-year-old son, D.J., in the first half of 2006. The abuse was comprised of four separate incidents that occurred during D.J.'s trips to Petitioner's mother's house in the City of Rochester, New York, to visit Petitioner. On September 25, 2006, a Monroe County grand jury charged petitioner with one count of Course of Sexual Conduct Against a Child in the First Degree ("CSC 1st") (P.L. § 130.75(1)(b)), based on two or more sexual acts with a child less than thirteen-years-old; the sexual acts "included at least one act of oral sexual conduct and anal sexual conduct, " which occurred "over a period of time not less than three months in duration... on or about and between January 26, 2006 and August 31, 2006."
The parties stipulated that, starting on January 26, 2006,  Petitioner would often visit Petitioner at his mother's house. Sometimes D.J.'s brother, JD, who was the son of Petitioner and D.J.'s mother, would accompany him. Petitioner's room was upstairs, and they would "hang out" there, watching basketball games on television or playing video games. It was during the period from January 26, 2006, through June 20, 2006, that Petitioner started touching D.J. in a sexually inappropriate manner while they were in Petitioner's room. The contact progressed from Petitioner touching D.J.'s penis with his hand to Petitioner anally and orally sodomizing him. D.J. did not tell anyone because he was scared of Petitioner. Despite the abuse, D.J. continued to go over to Petitioner's mother's house because his younger brother "kept going over there, " and D.J. "didn't want nothing to happen to him." T.485-87, 744.
D.J. eventually disclosed the abuse to his mother after she asked him "what was going on." T.487. After the two talked for "a long time, " T. 527-28, D.J.'s mother then took him to the emergency room at Strong Memorial Hospital ("SMH") on September 10, 2006, where he was examined. Later that night, he met with members of the Rochester Police Department for about an hour. T.487-89, 524-31; 640-41; 780-83. Subsequently, D.J. was examined by another doctor who conducted a physical exam and performed other tests. T.489, 566-67.
On October 12, 2006, Petitioner called D.J.'s mother's house, and D.J. answered the telephone. T.489-92. Petitioner made several comments to D.J. during the call, including, "I want to come home" and "I love you". Petitioner also asked D.J., "Are you mad at me?" T.783-97; 875-76.
Dr. Ann Lenane, an expert in the field of child abuse, an emergency room pediatrician, and the medical director of the Referral and Evaluation of Abused Children clinic at Strong Memorial Hospital, testified for the prosecution. Dr. Lenane examined D.J. on September 19, 2006, after speaking with D.J.'s mother, who described the child's medical history. Dr. Lenane testified that certain changes in behavior are relevant to a diagnosis of sexual abuse, and D.J. displayed three symptoms that were indicative of sexual abuse, namely, the new onset of bedwetting for the prior six months; and a history of pain with bowel movement, which he had revealed to his regular physician. T.619-22. Although the trial judge directed that this testimony be stricken as hearsay, because it was based on the mother's statements to Dr. Lenane, T.622-23, defense counsel later "opened the door" to such testimony by eliciting from Dr. Lenane that there could be many reasons for constipation. T.667. Under the prosecutor's questioning, Dr. Lenane testified that D.J.'s mother had informed her that D.J.'s pediatrician recently had diagnosed him with constipation. T.672, 675-76. Dr. Lenane testified that constipation is "one of the problems that children that have been sexually abused may have" because anal sexual abuse can cause bowel movements to be painful, which in turn can lead the child to avoid defecating. T.672-73.
Clinically, Dr. Lenane saw no specific evidence of sexual abuse during her examination of D.J., such as bleeding, dilation, ripping, tearing, abnormal lesions, or fissures in his anal area. T.668-69. She opined, however, that the "majority" of children who have been sexually abused show no specific findings of sexual abuse. T.629-36. According to Dr. Lenane, a "normal examination" thus is still "consistent with the possibility of child sexual abuse." T.670-71. As an example, Dr. Lenane testified that the absence of "anal dilation" does not mean that the child's anus was not penetrated by a penis or other object because most children who have been penetrated with an adult penis show no specific physical symptoms, and lubrication prior to penetration would make symptoms even less likely. T.636-38. In addition, Dr. Lenane opined, it would be "very unusual" for there to be specific findings of abuse where, as here, the abuse took place more than four weeks prior to the examination. T.638-39.
The defense called no witnesses, and Petitioner did not testify. The defense focused on highlighting inconsistencies in D.J.'s various statements and his delay in reporting what had happened. Counsel argued that it was implausible for the abuse to have occurred in a bedroom in a small apartment where other people (including Petitioner's mother) were present. Counsel emphasized the lack of DNA evidence, medical evidence, or other physical indicia of sexual abuse, and reiterated that Dr. Lenane's examination findings were "normal." Counsel attacked Dr. Lenane's credibility, arguing that no matter what her physical examination revealed, she was "going to say it's consistent with sexual abuse." T.861. In support of his argument that Dr. Lenane functions as an arm of the police and the district attorney's office, counsel pointed to her admission that "when she sees a kid she assumes abuse, " which is the opposite of the presumption of innocence. T.859-60. On March 16, 2007, the jury returned a verdict finding Petitioner guilty as charged in the indictment. T.937.
Petitioner appeared with defense counsel at a sentencing hearing on April 20, 2007, at which he was adjudicated a second violent felony offender based on a previous conviction for Criminal Possession of a Loaded Firearm in the Second Degree. S.2-5. The trial court sentenced Petitioner to a determinate term of 22 years in prison to be followed by 5 years of post-release supervision. S.15-18.
Represented by new counsel, Petitioner pursued a direct appeal to the Appellate Division, Fourth Department, of New York State Supreme Court. Petitioner also filed a pro se supplemental appellate brief. The Fourth Department unanimously affirmed the conviction, and the New York Court of Appeals denied leave. People v. Gayden, 107 A.D.3d 1428 (4th Dep't 2013), lv. denied, 22 N.Y.3d 1138 (2014). There is no record of Petitioner having filed any post-conviction collateral motions in state court.
On April 17, 2012, while his state-court direct appeal was pending, Petitioner filed a habeas petition ("Petition") (Dkt #1) in this Court, asserting that (1) his state-court appeal had been repeatedly and unfairly delayed; and (2) this delay was caused by the ineffectiveness of Petitioner's assigned appellate counsel. On October 9, 2012, Petitioner filed a pleading captioned as "Petitioner's Federal Supplemental Brief") ("Supplemental Brief") (Dkt #13) attaching additional documentation and asserting new habeas claims. In a Decision and Order dated September 9, ...