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Clairmont v. Smith

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
Aug 5, 2015
9:12-CV-01022 (GTS/TWD) (N.D.N.Y. Aug. 5, 2015)

Opinion

9:12-CV-01022 (GTS/TWD)

08-05-2015

JAMES R. CLAIRMONT, Petitioner, v. J.T. SMITH, Respondent.

APPEARANCES: JAMES R. CLAIRMONT 09-A-2043 Petitioner pro se Shawangunk Correctional Facility P.O. Box 700 Wallkill, New York 12589 HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Counsel for Respondent 120 Broadway New York, New York 10271 OF COUNSEL: PAUL B. LYONS, ESQ.


APPEARANCES: JAMES R. CLAIRMONT
09-A-2043
Petitioner pro se
Shawangunk Correctional Facility
P.O. Box 700
Wallkill, New York 12589
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Respondent
120 Broadway
New York, New York 10271
OF COUNSEL: PAUL B. LYONS, ESQ. THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER and REPORT-RECOMMENDATION

I. Introduction

This matter has been referred to this Court for Report and Recommendation, pursuant to 28 U.S.C. § 636(b) and Northern District Local Rule 72.3(c), by the Hon. Glenn T. Suddaby, United States District Judge.

Presently before this Court is the timely Petition of Petitioner James R. Clairmont, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) Petitioner brings this proceeding challenging a judgment of conviction entered on April 13, 2009, following a January 2009 jury trial in Saratoga County Court. (Dkt. No. 16-3 at 1). Petitioner was convicted of three counts of Criminal Sexual Act in the First Degree (N.Y. Penal Law § 130.50(1)), three counts of Sexual Abuse in the First Degree (N.Y. Penal Law § 130.65(1)), and two counts of Assault in the Third Degree (N.Y. Penal Law § 120.00). (Dkt. No. 16-3 at 674, 685.) Petitioner was sentenced to a determinate prison term of eighteen years followed by twelve years of post-release supervision on the three counts of Criminal Sexual Act in the First Degree; a determinate sentence of five years followed by a period of post release supervision of ten years on the three counts of Sexual Abuse in the First Degree; and local terms of one year on each of the two counts of Assault in the Third Degree. Id. at 707-09. The terms run concurrently. Id. at 709.

Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.

A charge of Rape in the First Degree (N.Y. Penal Law § 130.35(1)) was withdrawn by the prosecution during the proceedings. (Dkt. No. 16-3 at 535.) Petitioner was found not guilty on the charge of Unlawful Imprisonment in the Second Degree (Penal Law § 135.05(1)). (Dkt. Nos. 16-3 at 674.)

The Appellate Division Third Department ("Appellate Division") unanimously affirmed the judgment of conviction on July 22, 2010, and leave to appeal to the New York Court of Appeals was denied on November 4, 2010. People v. Clairmont, 906.Y.S.2d 369 (3rd Dep't 2010), lv. denied, 913 N.Y.S.2d 646 (2010). Petitioner is currently incarcerated in Shawangunk Correctional Facility pursuant to the conviction. (Dkt. No. 1 at 1.)

Petitioner has raised three grounds for habeas review:

(1) Violation of his Fourteenth Amendment right to due
process based upon a claim that the prosecution adduced perjured material testimony from the prosecution's main witness at trial in order to obtain a conviction (Dkt. No. 1 at 4);

(2) Violation of his Fourteenth Amendment due process rights by the prosecution in allowing perjured testimony by a prosecution witness to go uncorrected while having a professional obligation to correct perjured/tainted testimony for the jury and court, id.; and

(3) Petitioner's conviction was the result of a verdict not supported by the weight of the evidence by federal standards, id. at 5.

For the reasons discussed below, the Court recommends that Petitioner's Petition (Dkt. No. 1) be denied and dismissed in its entirety.

II. Factual Background

A. The People's Case

Petitioner and J.S. met during the Summer of 2007 at a trailer park in Wilton, New York where Petitioner lived and worked and J.S. was living with her mother. (Dkt. No. 16-3 at 319-20.) In October of 2007, after the two had dated for a short time, J.S., whose mother was moving out of state, began living with Petitioner. Id. at 308, 320-22. Although things initially went okay, by onset of winter, Petitioner had begun to show controlling and violent tendencies. Id. at 322. On one occasion, when J.S.'s paycheck did not arrive in the mail on time, Petitioner accused her of taking it out of the mailbox and spending it, even though she had no access to the mailbox for which he had the key. Id. at 323-24. Petitioner became violent, hitting her in the head. Id. at 324-25.

The victim is identified herein as J.S. in order to protect her privacy.

1. December 21, 2007, Assault

J.S. and Petitioner went to visit his parents at their residence behind Petitioner's mobile home in the trailer park on the evening of December 21, 2007. Id. at 326-27. Petitioner's brother Jason was there, and everyone was drinking. Id. at 327; 543. When Jason had to leave, he helped J.S. move Petitioner's new car, which was parked behind his, when she was unable to shift the vehicle into reverse. Id. at 327-29. Petitioner came out of the house angry and accused J.S. of sleeping with his brother. Id. at 329. Petitioner took J.S. by the hair and dragged her out of the car and began hitting as he continued to accuse her of sleeping with his brother. Id. When she tried to get up, Petitioner threw her back down and started kicking her in the sides and back. Id. at 330. Petitioner followed J.S. when she went into his parents' residence and put her head through the kitchen window. Id. at 331.

New York State Troopers Kevin Manion ("Manion") and Brandon Hudson arrived and began speaking with everyone. Id. at 331. When J.S., who appeared intoxicated, went over to Manion, he noticed that some of her hair was missing and asked her what had happened. Id. at 273. Manion testified that J.S. became belligerent and ultimately was arrested, handcuffed, and charged with disorderly conduct and resisting arrest. Id. at 273-74, 332. When he took J.S. to the State Police barracks, he noticed she was "missing a half a head of hair," and asked her what had happened to it. Id. at 275-76. J.S. told him she got it caught in the car door. Id. at 276.

Based upon J.S.'s crying and his experience with domestic incidents, Manion believed something was wrong. Id. Manion told J.S. he did not believe she caught her hair in the door because she would have had more injuries, and crying the whole time, J.S. told Manion she did not want to talk to him. Id. at 277. According to J.S., she did not say anything about Petitioner and her hair because she was afraid. Id. at 363. Manion did not believe it was right for J.S. to go home that night and arranged for her to stay at a hotel. Id. at 280-81. Manion told J.S. he was always available if she changed her mind and wanted to talk to him about what had happened. Id. J.S. went home to Petitioner the following morning. Id. at 334. J.S. was never arraigned on the disorderly conduct and resisting arrest charges, and the charges were dismissed at Manion's request. Id. at 302.

According to J.S., the abuse continued after the incident on December 21, 2007. Sometime between the December 21, 2007, incident and early February 2008, J.S. went outside to get some air. Id. at 337. Petitioner kicked her in the shin causing her to fall. Id. J.S. got up and tried to walk away. Id. When she was a little ways down the street, Petitioner came up on his child's bike and hit J.S. in the nose. Id. at 337-38. J.S. flew back and landed on the ground. Id. at 338. She went to the house, with her nose bleeding profusely. Id. She thought it was broken. Id.

2. February 15, 2008, Assault

On February 15, 2008, J.S. was awakened at 2:00am by Petitioner who was yelling and screaming at her. Id. at 339. He accused J.S. of having said "Mike, I love you" while she was sleeping. Id. at 340. Petitioner went into the living room and continued yelling, calling J.S. a whore. Id. Petitioner came back into the bedroom and began hitting J.S. in the head. Id. at 341. He hit J.S.'s hand when she used it to block him from hitting her in the head. Id. Petitioner began kicking J.S. in the back and ribs after she started protecting her head and told her that women who cheated on their husbands deserved to be treated like that. Id. He continued calling J.S. a whore and a slut. Id.

Petitioner then forced J.S. to have anal sex with him by holding her wrists as she lay on her stomach. Id. at 342, 345. J.S., who was crying and in great pain, tried not to say anything because she was already afraid for her life and did not want to make things worse. Id. at 342. After ejaculating, Petitioner went back into the livingroom. Id. at 342, 345. J.S. sat on the edge of the bed and did not try to go anywhere because she was afraid. Id . at 343. She became really frightened when she heard Petitioner screaming calling J.S. a whore and a slut and saying she deserved to be treated the way he was treating her. Id. at 344.

Petitioner came back in the bedroom and forced J.S. to felate him, telling her to get it hard for him like a good little whore. Id. J.S. did it despite not wanting to because she did not want him to hit her any more. Id. Petitioner did not ejaculate. Id. Petitioner then threw J.S. on the bed and forced her to have anal sex with him again, this time placing her on her back and putting her legs up so that her knees were by her head. Id. at 445. J.S. was afraid that Petitioner would start beating her again so she did not fight and said nothing. Id. at 346. Petitioner ejaculated and again went into the livingroom. Id.

J.S. did not leave the trailer. Id at 347. She felt that if she stayed in one spot he would not do anything more to her. Id. She could hear Petitioner call in late for work and was fearful because she thought it meant that he was going to continue to keep doing things to her until he left. Id. at 348. Petitioner then told her not to leave because he would know if she did, and he was not done with her. Id.

After Petitioner left, J.S. called some friends and, when no one answered, called her mother in Oklahoma. Id. at 349. After she spoke with her mother, J.S. packed her bags and went to her neighbor's house. Id. J.S. knocked on her neighbor Deborah Woodcock's ("Woodcock") door at about 8:00am. Id. at 404. J.S. was crying and asked if she could stay at her house. Woodcock said yes and asked her what was going on. Id. J.S. told Woodcock about Petitioner waking her up at 2:00am and severely beating her. Id. at 405. J.S. said she had spoken with her mom and the police were coming. Id.

J.S. was at Woodcock's when Manion, who had received a call regarding a possible domestic violence victim, arrived at the trailer park. Id. at 283-84. J.S., who was crying, told Manion that Petitioner had beaten her, and he observed that she was injured and called for an ambulance. Id. at 284-85. On the way to the hospital, J.S. told paramedic Jared Gilston ("Gilston") that Petitioner had physically and sexually assaulted her. Id. at 465. She was at times withdrawn and at other times upset and crying and "kind of hyperventilating" with labored breathing. Id. at 473. Gilston asked J.S. if she wanted him to recontact the police so that they could meet her at the hospital, and she said she did. Id. at 466.

When Manion arrived at Saratoga Hospital he was informed that in the ambulance on the way to the hospital, J.S. had disclosed that Petitioner had raped her. Id. at 286-87. Manion then spoke with J.S. who told him she had been beaten and raped by Petitioner. Id. at 287. State Police Investigator Barber told Manion to obtain a sexual assault evidence kit. Id.

Saratoga Hospital Registered Nurse Kerry Button ("Button") interviewed J.S. in the Emergency Room. Id. at 488. J.S. told Button about the anal intercourse. Id. at 489. J.S. described two instances of anal intercourse and two instances of physical assault. Id. J.S.'s affect was flat, she was very withdrawn without a lot of emotion on her face, made minimal eye contact, and was at times openly weeping. Id. at 490-91. After the evidence kit was complete, J.S. was examined by Dr. Duthaler for complaints of hand, side, and abdominal pain. Id. at 511. She complained of pain in the left rib area, left side of her abdomen, and her right hand. Id. at 512. J.S. told Dr. Duthaler that she had been both physically and sexually assaulted by Petitioner, that he had kicked and punched her and forced her to have anal and oral sex. Id. at 513. The physical findings were consistent with bruising on J.S.'s body and areas of tenderness with no bruising. X-rays and a CT scan showed no fractures or signs of internal injury. Id. at 514-15.

J.S. was discharged from the hospital at 4:34pm, taken to the State Police barracks by Manion, and interviewed for two hours by Bureau of Criminal Investigations Investigator David Pelchar ("Pelchar"), who took a statement from her before taking her to a friend's house. Id. at 289, 353-54, 412-13, 517. Except for going with Pelchar to pick up a few things the following day, J.S. never returned to Petitioner's home. Id. at 358. She moved to Oklahoma where her mother was living. Id. at 358-59.

3. Controlled Phone Call

While J.S. was being interviewed by Pelchar, she was receiving messages on her cell phone from Petitioner. Id. at 413. Pelchar asked J.S. if she would be willing to do a controlled phone call with Petitioner in which she would confront him about the assault. J.S. agreed to return to the barracks and do the call the next morning. Id. at 356, 413. J.S. returned to the barracks the morning of February 16, 2008, and made the controlled phone call. Id.

On direct examination, Petitioner's attorney questioned him about the controlled phone call, asking him if he responded when J.S. asked "Jimmy, why did you hurt me." Id. at 549. Petitioner testified that he supposed he responded with an "I'm sorry," that he was just sorry for having an argument and just having problems and was sorry that everything wasn't good. Id. Petitioner denied admitting to anything, testifying that he was just trying to make J.S. happy. Id. at 550. Petitioner elaborated, testifying that he was busy driving a forklift at the time, and it was hard for him to pay attention to the conversation. Id.

As noted in Respondent's Memorandum of Law, the transcript of the recording of the call was not read into the record at trial. (Dkt. No. 15 at 12 n.4.) The cassette tape of the conversation was, however, admitted into evidence at trial and played for the jury. (Dkt. No. 16-3 at 415-17.) Petitioner was questioned about the taped conversation on both direct and cross-examination at trial, id. at 549, 563-71, and the Appellate Division recounted its contents in its decision on Petitioner's direct appeal. See People v. Clairmont, 906 N.Y.S.2d 369, 372 (3rd Dep't 2010). Petitioner has not disputed the Appellate Division's summary of the phone call. 28 U.S.C. § 2254, Rule 5 provides that "If a transcript cannot be obtained . . . a narrative summary of the evidence [may be submitted]." See Douglas v. Portundo, 232 F.Supp. 2d 106, 109 n.1 (S.D.N.Y. 2002) (factual submissions by parties in district court and on direct appeal found sufficient to resolve petitioner's claims where the court did not have the trial transcript). The Court finds that the current record suffices to resolve Petitioner's claims, particularly since the substance of the recorded conversation is not in dispute.

On cross-examination, Petitioner acknowledged that it was his voice on the recording of the controlled phone call and that he heard on the tape that J.S. had said "You forced yourself on me," and he had responded "I'm sorry." Id. at 564-65. Petitioner claimed, however, that he wasn't really paying attention and would have agreed to anything she said just to make her happy. Id. at 565. Petitioner admitted saying on the tape that he had anger problems, and telling J.S. that "[i]t's not going to happen again" but again claimed to have said it only to make her happy. Id. at 566-67. Petitioner also acknowledged saying on the tape that he was in a fit of rage during the early morning of February 15, 2008. Id. at 568. When asked if it was true that when J.S. asked "[w]hy did you hit and kick me like this . . . like that," he responded "I'm sorry," Petitioner testified that half the time he did not hear what J.S. was saying, and he would have said "I'm sorry" a million times over just wanting to apologize. Id. at 571.

In its decision on Petitioner's appeal from his criminal conviction, the Appellate Division wrote regarding the taped phone conversation:

During this conversation, defendant repeatedly apologized to the victim for the events of February 15, 2008, including the physical abuse and the anal sex, and admitted that "[i]t was wrong of [him]" to have forced himself on her. He also told her that he has "anger problems," that [he's] not going to put [his] hands on her again" and that "if [she] really loved [him] . . . [she] would stick by [his] side and see if [he] could get some help.
Clairmont, 906 N.Y.S.2d at 372.

4. Petitioner's Arrest

On February 19, 2008, State Police Investigators Andrew Werner ("Werner") and Robert Stamfli ("Stamfli") went to Petitioner's place of employment to speak with him. (Dkt. No. 16-3 at 423-24, 431, 434.) Werner was the case agent on the case involving J.S. and had asked Stamfli to accompany him. Id. at 423, 432. Werner informed Petitioner that he needed to talk to him about a sexual assault investigation. Id. at 434. When Petitioner declined Werner's request to go to the Wilton barracks to speak with them about the investigation, Werner placed him under arrest, put him in handcuffs, and brought him over to his car. Id. Werner advised Petitioner of his Miranda rights. Id. at 425, 435-38.

While in the car, Petitioner acknowledged that he and J.S. had argued, but claimed that he never put his hands on her, and he swore on his son's life he would never do that. Id. at 425-26, 439. He told the investigators that he had awakened J.S. at 2:00am because she was talking in her sleep, and he thought she was cheating on him with Mike, the maintenance man in the trailer park. Id. at 426, 439. Petitioner said he might have called her a whore but that he would never put his hands on her. Id. Petitioner told the investigators "I'm verbally abusive to her but not physically abusive." Id. at 426.

When they arrived at the barracks, Werner began interviewing Petitioner, who continued to deny ever physically assaulting J.S. in any way. Id. at 440. Werner then played Petitioner the part of the recorded phone call in which he talked about how he did assault J.S. Id. at 441. Petitioner then said "Well, yes, I did put my hands on her, but I didn't hurt her. I wouldn't do that." Id.

Petitioner told Werner that he and J.S. had anal sex that morning, and that they had sex every morning. Id. He claimed to have asked J.S. if she wanted to have sex and that J.S. had said yes. Id. After being told by Petitioner that J.S. liked anal sex, Werner asked him about the part of the tape where she said she did not like it, to which he responded that she did like it. Id. at 442. After being told of the charges that would be placed against him, Petitioner requested an attorney and indicated he did not want to talk any more. Id. at 422. Petitioner was given a cell phone to call an attorney and the interview ended. Id.

B. Petitioner's Case

Petitioner testified on his own behalf at trial. (Dkt. No. 16-3 at 539-577.) Petitioner testified that he met J.S. in April or May of 2007, and that they lived together from approximately August of 2007 through February 2008. Id. at 541. The two shared the same bed and had consensual sex on a daily basis, and there was never a time that J.S. told him she did not want to have sex with him, said no, or asked him to stop. Id. at 542, 548.

According to Petitioner, he and J.S. went to his parents' home on December 22, 2007, to show them the car he had acquired that day. Id. at 543. They both started drinking beer and shots, and drank a lot. Id. Petitioner and J.S. both became drunk. Id. The State Police came to the house, and J.S. was arrested. Id. at 543-44. Petitioner did not see J.S. interact with the State Police. Id. at 544. The State Police took J.S., and she called Petitioner from a hotel the next morning and later came home. Id. When asked about the testimony regarding J.S.'s loss of hair on December 22, 2007, Petitioner said that he was heavily intoxicated that night and had no idea how it had happened. Id. at 556.

According to Petitioner, he and J.S. had a verbal argument in the middle of the night on February 15, 2008. Id. at 547. He was not sleeping before the argument. Id. at 562. J.S. got up to go to the bathroom and the argument started. Id. Petitioner does not believe he started the argument. Id. Petitioner and J.S. ended up arguing for a couple of hours before he went to sleep. Id. at 547.

The next morning, Petitioner had anal sex with J.S. with her consent. Id. She did not say no or tell him to stop, nor did she scream or yell at him about it. Id. at 547-48. Afterwards they had coffee as they always did, and Petitioner asked J.S. if she was still going to have sex with him, and she said "Yes, sir (sic), of course, I love you." Id. at 547.

J.S. called Petitioner the next morning while he was at work. Id. at 548. His boss did not like him to talk on the phone while he was working, and he was on the forklift when J.S. called. Id. However, Petitioner felt it was important to speak with her because he cared about her and wanted to work something out. Id. at 548-49. During the conversation, Petitioner acknowledged telling J.S. he was sorry for hurting her when she asked him why he had hurt her. Id. at 549. When asked why he apologized, Petitioner testified: "To tell you the truth. sir, I was busy with the forklift. I wasn't really paying attention. I just wanted to make her happy and, you know, just didn't want to have any problems. I was pretty much going to tell her I was sorry for anything at that point." Id. at 549.

Petitioner denied hitting J.S. on February 15, 2007, or ever beating her up. Id. at 550-51. He described what had happened as "a shoving match and a pushing match." Id. at 550. Petitioner also denied raping J.S. on February 15, 2008, or forcing her to have sex with him. Id. at 556. Petitioner testified that the trailer where the two lived had three doors, it was simple to get out, and he did not restrain J.S. from leaving the trailer on February 15, 2008, or at any other time. Id. at 545-46.

III. Direct Appeal and State Court Post-conviction Proceeding

A. Direct Appeal

The issues raised by Petitioner on his direct appeal to the Appellate Division included whether: (1) his conviction was the result of a verdict not supported by legally sufficient evidence on the issue of forcible compulsion; (2) his conviction was not supported by the weight of the evidence on the question of whether the sex was consensual; (3) his conviction was the result of a verdict obtained through the People's prejudicial conduct during closing; and (4) his sentence was harsh and severe. (Dkt. No. 16-1 at 20-28.)

The Appellate Division unanimously affirmed the judgment of conviction entered against Petitioner. People v. Clairmont, 906 N.Y.S.2d 369 (3d Dep't 2010) On the issue of the legal sufficiency of the evidence on the issue of forcible compulsion, the Appellate Division considered the testimony given by J.S. which was found to be strongly supported by the taped phone conversation; the testimony of the nurse and doctor who examined J.S. in the emergency room; testimony regarding the abusive and controlling history of the relationship; and the state of mind produced in J.S. by Petitioner's conduct in concluding that

viewing the evidence in a light most favorable to the People and giving them the benefit of every favorable inference, we find that there is a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion" that the element of forcible compulsion was established by the trial evidence. (People v. Thompson, 72 N.Y.2d 413, 534 N.Y.S.2d 132, 530 N.E.2d 839, quoting People v. Bleakley, 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 (1987)[.]
Id. at 373. On the question of the sufficiency of the weight of the evidence, the Appellate Division noted that while a different verdict would not have been unreasonable, "upon our review of all the credible evidence in a neutral light, and according great deference to the jury's resolution of issues of credibility, we find the verdict to be supported by the weight of the evidence." Id.

The Appellate Division found that Petitioner's assertion that the prosecutor made improper and prejudicial comments during summation had not been preserved for review due to the failure to object, and that in any event the comments in summation constituted fair comment on the evidence or a proper response to Petitioner's summation. Id. The Court concluded that "in light of the circumstances of the present crimes, [Petitioner's] criminal history and the absence of extraordinary circumstances, we do not find the sentences imposed by County Court to be harsh and excessive." Id.

Petitioner had prior convictions for reckless endangerment, disorderly conduct, and possession of a forged instrument. (Dkt. No. 16-3 at 555.)

Petitioner sought leave to appeal to the Court of Appeals asking the Court to adopt the rule that "[s]ince a person is directly and immediately aware of his/her mental state, when a person delays in expressing his/her mental state (no consent), forcible compulsion should not be available as a proof to infer that there was no consent." (Dkt. No. 16-1 at 82-83.) Petitioner also argued that his conviction stood below the federal [sufficiency of the evidence] standard enunciated in In Re Winship, 397 U.S. 358 (1970). Id. at 83. The Court of Appeals denied leave to appeal on November 4, 2010. People v. Clairmont, 913 N.Y.S.2d 646 (2010).

B. Section 440.10 Motion to Vacate Judgment of Conviction

Petitioner moved pro se to vacate the judgment of conviction under N.Y. Criminal Procedure Law ("CPL") §440.10 on August 2, 2011. (Dkt. No. 16-1 at 87.) The stated grounds for the motion were that: (1) the prosecution used perjured testimony to obtain the conviction in violation of his Fourteenth Amendment rights; and (2) ineffective assistance of defense counsel. Id. at 88. Petitioner argued that J.S.'s testimony was rendered incredible as a matter of law by her telling more than one version of the facts and giving perjured testimony at trial regarding (1) drinking and her interaction with the State Troopers that led to her arrest for disorderly conduct and resisting arrest on December 22, 2007; and (2) her testimony that Petitioner's controlling behavior forced her to quit her job. Id. at 93. Petitioner accused the prosecution of allowing the perjured testimony to continue so as to obtain a conviction and relying upon perjured testimony to support the conviction on the appeal to the Appellate Division. Id. at 93-94. Petitioner claimed that his Fourteenth Amendment rights were violated because without J.S.'s tainted and unbelievable testimony, the prosecution could not have obtained a conviction. Id. at 92.

Petitioner claimed ineffective assistance of counsel by virtue of his defense counsel's failure to object to improper statements in the prosecution's summation. (Dkt. No. 16-1 at 110.) Petitioner also claimed ineffective assistance of counsel based upon his counsel's failure to object to J.S.'s alleged inconsistent/perjured testimony. Id.

On November 23, 2011, a counseled § 440.10 motion was made bolstering Petitioner's pro se motion argument that his conviction should be vacated on the ground that material evidence adduced at trial was false and known to the prosecutor to be false, resulting in a judgment of conviction that was procured in violation of Petitioner's rights under the New York or United States Constitutions. Id. at 113-14. The motion identified four examples of claimed inconsistent/false testimony. Id. at 120-22.

Petitioner's counseled motion did not include an ineffective assistance of counsel claim. (Dkt. No. 16-1 at 113-14.)

The first example, also relied upon in Petitioner's pro se motion, was J.S.'s testimony regarding her drinking, her behavior and her interaction with the State Troopers on the evening of December 21, 2007. Id. at 120-21. The second example was J.S. initially telling Manion that her missing hair was pulled out when it was caught in a car door and not making a complaint regarding her missing hair until she arrived at the State Police barracks. Id. at 121. The third example was J.S.'s testimony that she only had three or four beers when Manion testified J.S. appeared intoxicated. Id. at 122. The fourth example of inconsistent/false testimony was Petitioner's initial testimony that she had to quit her job in late 2007 because of Petitioner's controlling behavior, her testimony on cross-examination that she worked on Valentine's Day in 2008, and her testimony that she did not specifically remember testifying on direct that she was not working. Id.

On March 28, 2012, the Hon. Jerry J. Scarano, Saratoga County Court Judge, denied Petitioner's § 440.10 motion. (Dkt. No. 16-1 at 175-76.) Judge Scarano found that

[t]he Defendant's motion [to vacate based upon J.S.'s alleged perjury with the prosecutor's knowledge] is premised upon his own conclusory, self-serving affidavit. His unsupported assertions are discredited by an examination of the record as a whole. What defendant characterizes as false or perjured testimony by the victim is belied by the record of this proceeding. The jury found the testimony of the victim to be credible, as did the appellate court . . . . Thus, this Court finds defendant's claim is without merit. CPL § 440.20(2); CPL § 44.30(4).

Petitioner's ineffective assistance of counsel argument was rejected by the County Court based upon: (1) the appellate court's finding that the prosecutor's comments in summation constituted "fair comment on the evidence"; and (2) defense counsel's argument throughout his summation that J.S. had lied and was unbelievable. Id. at 176.

Petitioner's motion for leave to appeal from the denial of his § 440.10 motion was denied by the Appellate Division on June 7, 2012. Id. at 179-83, 192.

IV. Standard of Review

A. Exhaustion Requirement under the Antiterrorism and Effective Death Penalty Act of 1996

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs applications of incarcerated state court defendants seeking federal habeas corpus relief. See 28 U.S.C. § 2254. Before a federal court may consider an application for habeas corpus relief pursuant to 28 U.S.C. § 2254, the petitioner must generally have exhausted all the remedies available in the courts of the state in which he or she was convicted. 28 U.S.C. § 2254(b)(1)(A); see also Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1399 (2011) ("Section 2254(b) requires that prisoners must ordinarily exhaust state remedies before filing for federal habeas relief."); Jones v. Murphy, 694 F.3d 225, 246-47 (2d Cir. 2012), cert. denied, ___ U.S. ___, 133 S.Ct. 1247 (2013) ("Under AEDPA, a prisoner in custody pursuant to a state court judgment must generally exhaust state court remedies before seeking federal habeas corpus review.").

Exhaustion may be excused where it appears that "there is an absence of available state corrective process" or "circumstances exist that render such process ineffective to protect the rights of the applicant." See 28 U.S.C. § 2254(b)(1)(B)(i)-(ii).

"Exhaustion of state remedies requires that a petitioner fairly present federal claims to the state courts in order to give the state the opportunity to pass upon and correct alleged violations of its prisoner's federal rights." Cornell v. Kirkpatrick, 665 F.3d 369, 375 (2d Cir. 2011) (citation and internal quotation marks omitted); Daye v. Attorney General of State of N.Y., 696 F.2d 186, 191 (2d Cir. 1982) (en banc) (proper exhaustion requires that both the factual and legal premises of claim be "fairly presented" to the state court).

Passage through the state courts, in and of itself, "is not sufficient." Picard [v. Connor, 404 U.S. 270, 275 (1971)]. To provide the State with the necessary 'opportunity,' the prisoner must fairly present his claim in each appropriate state court (including a state supreme court with powers of discretionary review), alerting that court to the federal nature of the claim and "giv[ing] the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)."
Wilens v. Superintendent of Clinton Correc. Fac., No. 11-CV-1938 (JFB), 2014 WL 28995, at *5, 2014 U.S. Dist. LEXIS 182111, at *13 (E.D.N.Y. Jan. 2 2014).

Copies of unreported cases cited herein will be provided to Petitioner. See Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Petitioner bears the burden of proving exhaustion. Colon v. Johnson, 19 F.Supp. 2d 112, 119-20 (S.D.N.Y. 1998) (citations omitted).

B. Review of State Court Decisions on the Merits Under the AEDPA

Under the AEDPA, an application for a writ of habeas corpus:

shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d). Recognizing the principle that "[s]tate courts are adequate forums for the vindication of federal rights . . . , AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, ___ U.S. ___, 134 S.Ct. 10, 15-16 (2013); see also Cullen, 131 S.Ct. at 1398 ("This is a difficult to meet [ ] . . . and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt . . . .") (citation and internal quotation marks omitted).

"For the purposes of AEDPA deference, a state court 'adjudicate[s]' a state prisoner's federal claim on the merits when it (1) disposes of the claim 'on the merits,' and (2) reduces its disposition to judgment." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). Under the AEDPA, a summary disposition by a state court constitutes a disposition on the merits. Harrington v. Richter, 562 U.S. 86, 99 (2011). Where AEDPA's deferential standard of review applies, "[a] state court's determination of a factual issue is presumed to be correct, and may only be rebutted by clear and convincing evidence." Bierenbaum v. Graham, 607 F.3d 36, 48 (2d Cir. 2010) (citing 28 U.S.C. § 2254(e)(1)), cert. denied, 131 S.Ct. 1693 (2011). "[A] state court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance." Wood v. Allen, 558 U.S. 290, 291 (2010).

In determining whether a state court has adjudicated a claim "on the merits," a federal habeas corpus court must classify the state court decision as either (1) fairly appearing to rest primarily on federal law or to be interwoven with federal law; or (2) fairly appearing to rest primarily on state procedural law. Jimenez v. Walker, 458 F.3d 130, 145 (2d Cir. 2006). Decisions in the first category are deemed to have been made "on the merits" of the federal claim. Id.

A decision "on the merits" is contrary to clearly established federal law when it is either contrary to Supreme Court precedent on a question of law or opposite to a relevant Supreme Court case with materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). "Section 2254(d)(1)'s 'clearly established' phrase refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decisions." Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (citation and internal quotation marks omitted). "[F]ederal law, as defined by the Supreme Court, may be either a generalized standard enunciated in the Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir. 2002). "[C]ircuit precedent does not constitute clearly established Federal law, as determined by the Supreme Court . . . [and] cannot form the basis for habeas relief under AEDPA." Parker v. Matthews, ___ U.S. ___, 132 S.Ct. 2148, 2155 (2012) (citation and internal quotation marks omitted).

A state court unreasonably applies federal law when it correctly identifies the governing legal rule in a particular case but applies the rule to the facts in an "objectively unreasonable" manner. Lockyer, 538 U.S. at 75. An erroneous application of federal law is not necessarily an unreasonable one. Williams, 529 U.S. at 413. "It is settled that a federal habeas corpus may overturn a state court's application of federal law only if it is so erroneous that 'there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents.'" Nevada v. Jackson, ___ U.S. ___, 133 S.Ct. 1990, 1992 (2013) (quoting Richter, 562 U.S. at 101). "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer, 538 U.S. at 75-76.

Nevertheless, as interpreted by the Second Circuit, "although some increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Mask v. McGinnis, 252 F. 3d 85, 89 (2d Cir. 2001).

Federal habeas corpus review is limited to determining whether petitioner is in custody in violation of the Constitution, laws, or treaties of the United States. See 28 U.S.C. §§ 2241(c), 2254(a); see also Wainwright v. Goode, 464 U.S. 78, 83 (1983) ("[F]ederal courts may intervene in the state judicial process only to correct wrongs of a constitutional dimension."). Federal habeas relief does not "lie for errors of state law." Swarthout v. Cooke, 562 U.S. 216, 219 (2011). Petitioner has the burden of proving by a preponderance of the evidence that he is in custody in violation of the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2254(a); see also Smalls v. Batista, 191 F.3d 272, 278 (2d Cir. 1999). "Section 2254(d) reflects the view that habeas corpus is a 'guard against extreme malfunctions in the state criminal justice system,' not a substitute for ordinary error correction through appeal." Richter, 131 S.Ct. at 786. Where a claim has been adjudicated on the merits by a state court, federal habeas review is limited to the record that was before the state court that adjudicated the claim on the merits." Cullen, 131 S.Ct. at 1398.

V. Petitioner's Perjury and Subornation of Perjury Claims

Petitioner claims, as he did in his unsuccessful pro se and counseled § 440.10 motions, that J.S. committed perjury at trial and that the prosecutor allowed the perjury to go uncorrected. (Dkt. Nos. 1 at ¶ 12; 1-1 at 1-26; 5 at 4-6; 16-1 at 92-94, 116-117, 120-123; 17 at 2-8.) In denying Petitioner's pro se and counseled § 440.10 motion, Judge Scarano found Petitioner's perjury claim to be premised on his own "conclusory, self-serving affidavit" containing unsupported assertions discredited by the record as a whole, and noted that both the jury and the Appellate Division had found J.S.'s testimony to be credible. (Dkt. No. 16-1 at 176.)

Respondent has conceded that Petitioner exhausted his claims regarding the subornation of perjury by citing relevant federal law on his pro se and counseled § 420.10 motions and raising the perjury claims in his application for leave to appeal to the Appellate Division. (Dkt. No. 15 at 22.)

A. Challenged Testimony

1. The Evening of December 21, 2007

Petitioner claims that the prosecution knowingly used J.S.'s false, tainted, and inconsistent testimony regarding the events of the evening of December 21, 2007, in order to obtain a conviction. (Dkt. No. 1-1 at 5.) The claim is based in part upon J.S.'s testimony concerning her encounter with the State Troopers and Trooper Manion's conflicting testimony regarding the encounter. Id. at 5-11. On direct examination, J.S. testified that when the troopers came to the house, she began "acting out," maybe trying to get their attention, and that they arrested her because of her acting out. (Dkt. No. 16-3 at 332.) On cross-examination, J.S. testified that she had drunk three, maybe four beers when the troopers arrived. (Dkt. No. 1-1 at 10.) When asked, J.S. said she did not believe she was belligerent, and that she cursed at the troopers but did not use some "choice four-letter words." Id. at 10-11. J.S. denied screaming at the troopers, trying to hit the trooper, and struggling with the troopers when they were trying to handcuff her. Id. at 11, 14. Petitioner claims that her testimony was shown to be false by Trooper Manion's testimony that J.S. appeared intoxicated, was loud, refused to step away from the car when asked, and pushed Manion's hand away when he put his hands on her to push her away when she was arrested for disorderly conduct and resisting arrest. Id. at 6-7.

Petitioner also claims that J.S. gave different versions of the facts regarding her missing hair to Manion on December 22, 2007. Id. at 9. Manion testified that J.S. initially told him that her hair had been pulled out by the car door. Id. at 7. After they arrived at the barracks, she told him a different version of how it had happened. Id. at 8. J.S. testified on direct examination that she did not recall what she initially told Manion about her hair. (Dkt. No. 16-3 at 363.) She testified that she did not say anything about Petitioner at first because she was afraid. Id. On cross-examination that she did not recall telling the troopers she had caught her hair in the car door before telling them, without specifically mentioning Petitioner's name, that it had been ripped from her head. Id. at 12.

2. J.S.'s Employment Status

Petitioner further claims that J.S. committed perjury regarding her employment status and having to leave a job because of his controlling nature. (Dkt. No. 1-1 at 15-25.) J.S. testified on direct examination that by late December 2007 she had quit her job with an unidentified employer because it was too much of a control issue that Petitioner was always accusing her of sleeping with other people at work. (Dkt. No. 16-3 at 335.) When asked on direct whether she had a job in January and February 2008, J.S. testified she did not. Id. at 336. She testified that she was not working in February of 2008, and during the day on February 14, 2008, was just at home. Id. at 339.

On cross-examination, J.S. testified that she had worked for RGIS, inventory processing specialists while she was living with her mother in 2007, but that she did not believe she had worked there in 2008. (Dkt. No. 16-3 at 367.) J.S. could not remember whether she worked on December 21, 2007, and had no records with that information. Id. at 368. She testified that she had worked on February 14, 2008, but was not asked where and did not say where. Id. When defense counsel told her that he thought she had told the court and jury on direct that she had not worked on February 14, 2008, she testified she did not remember specifically telling them she had not worked. Id.

B. Analysis

"When the [Supreme] Court has been faced with a claim by a defendant concerning prosecutorial use of [perjured relevant testimony], it has 'consistently held that a conviction obtained by the knowing use of perjured testimony is fundamentally unfair, and must be set aside if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.'" Nix v. Whiteside, 475 U.S. 157, 185 (1986) (quoting United States v. Agurs, 427 U.S. 97, 103 (1976)) ( footnote omitted); see also Shih Wei Su v. Filion, 335 F.3d 119, 127 (2d Cir. 2003) (where the prosecution is found to have failed in its duty to avoid eliciting false testimony, "a new trial is required if the false testimony could in any reasonable likelihood have affected the judgment of the jury.") (quoting Giglio v. United States, 405 U.S. 150, 154 (1972)); Drake v. Portuondo, 553 F.3d 230, 241 (2d Cir. 2009) ("[T]he clearly established Supreme Court precedent relevant to this habeas petition [claiming false testimony] is that the conviction must be set aside if (1) the prosecution actually knew of [the witness's] false testimony, and (2) there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.").

However, "the Supreme Court 'has never held that even absent prosecutorial knowledge of perjury at the time of trial, a defendant may establish a due process violation based on perjury on the part of a prosecution witness.'" Laurey v. Graham, 596 F.Supp. 2d 743, 766-67 (W.D.N.Y. 2009) (quoting Penick v. Filion, 144 F.Supp. 2d 145, 152 (E.D.N.Y. 2001)); see also Jacobs v. Scott, 513 U.S. 1067 (1995) (Stevens, J., dissenting from denial of certiorari) (noting that the Supreme Court had yet to decide the question of whether a conviction based on perjured testimony violated due process regardless of the prosecutor's knowledge). Therefore, there is no clearly established Supreme Court law holding that the commission of perjury by a prosecution witness without the knowledge of the prosecutor violates due process.

In order to show prosecutorial misconduct with regard to perjured testimony, Petitioner must establish that: (1) false testimony was introduced; (2) the testimony was or should have been known by the prosecution to be false; (3) the testimony remained uncorrected; and (4) there is a reasonably likelihood that the false testimony could have affected the judgment of the jury. See Drake, 553 F.3d at 240-41; Shih Wei Su, 335 F.3d at 126.

Petitioner has failed to establish that J.S.'s testimony regarding the events of December 21, 2007, and her employment history was false or perjurious. "A witness commits perjury if he gives false testimony concerning a material matter with the willful intent to provide false testimony, as distinguished from incorrect testimony resulting from confusion, mistake, or faulty memory." U.S. v. Monteleone, 257 F.3d 210, 219 (2d Cir. 2001). Simple inaccuracies or inconsistencies in testimony do not rise to the level of perjury. Id.

Petitioner's claim that J.S.'s testimony regarding the events of December 21, 2007, was untruthful is not supported by the evidence. Manion testified that J.S. appeared intoxicated, refused his request that she step away from the car, and pushed his hand away. (Dkt. No. 1-1 at 6-7.) J.S. testified that she had three or four beers and "acted out" with the troopers and cursed at them. (Dkt. Nos. 1-1 at 10-11; 16-3 at 332.) The fact that the testimony of Manion and J.S. regarding the incident, while similar, was not identical, fails to prove that J.S. wilfully gave false testimony.

J.S. testified that she did not recall what she had initially told Manion about her hair (that she had caught it in the car door) but acknowledged that she did not initially tell him about Petitioner because she was afraid. (Dkt. Nos. 1-1 at 12; 16-3 at 363.) Manion and J.S. both testified that she told him a different version of how it happened at the barracks. (Dkt. No. 1-1 at 7-8, 12.) Petitioner has presented no evidence supporting his claim that J.S. willfully gave false testimony regarding her hair.

Petitioner has likewise failed to establish that J.S. gave wilfully false testimony regarding her employment status. J.S.'s testimony that she left her employment at RGIS by late December 2007 and did not believe she had worked there in 2008 was undisputed. (Dkt. No. 16-3 at 33, 367.) There were inconsistencies in her testimony regarding whether she had been working in February 2008 and specifically on February 14, 2008, but no evidentiary basis exists for determining that she gave wilfully false testimony. Id. at 336, 368.

Furthermore, Petitioner has failed to establish that the prosecution knew that J.S. had given false testimony, and he has failed to establish a reasonable likelihood that J.S.'s allegedly false testimony regarding the events of December 21, 2007, her employment status in February 2008 and whether she worked on February 14, 2008, could have affected the jury. The jury was made aware of the inconsistencies in J.S.'s testimony which, as noted above, were brought out in cross-examination and to some extent highlighted by defense counsel in summation, and clearly still found J.S.'s testimony to be credible. (Dkt. No. 16-3 at 594-95, 604.)

Based upon the foregoing, the Court concludes that the Saratoga County Court's denial of Petitioner's pro se and counseled § 440.10 motions regarding J.S.'s alleged perjury and the prosecutor's knowing use of the perjured testimony in obtaining Petitioner's conviction was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law.

VI. Petitioner's Weight of the Evidence and Legal Insufficiency Claims

Petitioner claims that his convictions for Criminal Sexual Act in the First Degree (Penal Law § 130.50(1)) and Sexual Abuse in the First Degree (Penal Law § 130.65(1)) were the result of a verdict "not supported by the weight of the evidence by federal standards" with respect to the element of forcible compulsion. (Dkt. No. 1 at ¶ 12.) Petitioner challenged both the legal sufficiency and weight of the evidence on his direct appeal. (Dkt. No. 16-1 at 3.) The Appellate Division rejected Petitioner's legal sufficiency and weight of the evidence claims, finding that despite J.S.'s admission that she did not "tell [Petitioner] 'no' or 'stop' or otherwise clearly express her unwillingness in some way when [Petitioner's] assaultive conduct the 'hitting,' 'kicking,' 'yelling,' and 'screaming' ceased and his sexual conduct began, the circumstances here were that the state of mind produced in the victim by Petitioner's conduct . . . rendered the sexual conduct to be without consent due to forcible compulsion, even in the absence of a clear rebuff by the victim." People v. Clairmont, 906 N.Y.S.2d 369, 372 (3d Dep't 2010).

The Court, as has Respondent, construes Petitioner's claim in this proceeding as including a claim of legal insufficiency as well as a weight of the evidence claim. (Dkt. No. 15 at 32 n. 8.)

For reasons explained below, the Court further finds that Petitioner's weight of the evidence claim is unexhausted and is, in any event, a state law claim not cognizable on habeas review. The Court further finds that the Appellate Division's denial of Petitioner's legal sufficiency claim was neither contrary to, nor an unreasonable application of, Supreme Court law.

Respondent concedes that Petitioner's legal sufficiency claim has been exhausted. (Dkt. No. 15 at 22-23.)

A. Weight of the Evidence

In its decision on Petitioner's direct appeal, the Appellate Division wrote that "while a different verdict would not have been unreasonable, upon our review of all the credible evidence in a neutral light, and according great deference to the jury's resolution of the issues of credibility, we find the verdict to be supported by the weight of the evidence." Id. at 373.

Petitioner presented his weight of the evidence claim on his direct appeal solely under state statutory and case law. (Dkt. No. 16-1 at 25-26.) Because a weight of the evidence claim is a pure state law claim grounded in N.Y. CPL § 470.15(5), Petitioner could not have done otherwise. See Williams v. Breslin, No. 06-CV-2479, 2008 WL 4179475, at * 5, 2008 U.S. Dist. LEXIS 78059, at *17 (E.D.N.Y. Sept. 9, 2008) ("A weight of the evidence argument is a pure state law claim grounded in N.Y. C.P.L § 470.15(5), which empowers the intermediate appellate courts of New York to make weight of the evidence determinations."). Since Petitioner's argument that the verdict is against the weight of the evidence states a claim only under state law, it is not cognizable on habeas corpus. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (habeas review is not available to remedy alleged error of state law); McKinnon v. Superintendent, Great Meadow Correctional Facility, 422 F. App'x 69, 75 (2d Cir. 2011) (a state weight of the evidence claim is not cognizable on habeas review); Saunders v. Lavalley, No. 10-CV-5896 (CS)(LMS), 2014 WL 2624763, at *20, 2014 U.S. Dist. LEXIS 80115, at * 54 (S.D.N.Y. June 10, 2014) ("It is well-settled that weight-of-the-evidence claims are purely state law claims and are not cognizable on habeas review.").

Petitioner's weight of the evidence claim is therefore unexhausted. See Cornell, 655 F.3d at 375 (exhaustion of state remedies requires that a petitioner fairly present federal claims to the state courts). --------

B. Legal Insufficiency of the Evidence

On Petitioner's direct appeal, the Appellate Division "viewing the evidence in a light most favorable to the People and giving them the benefit of every favorable inference," found that there was a "valid line of reasoning and permissible inferences which could lead a rational person to the conclusion that the element of forcible compulsion was established by the trial evidence." People v. Clairmont, 906 N.Y.S.2d at 373 (citations and internal quotation marks omitted).

In Jackson v. Virginia, 443 U.S. 307 (1979), the Supreme Court made it clear "that it is the responsibility of the jury not the court to decide what conclusions should be drawn from the evidence admitted at trial." Cavazos v. Smith, ___ U.S. ___, 132 S.Ct. 2, 4 (2011). A reviewing court may set aside a jury's verdict on the ground of insufficient evidence only "if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324; see also Hoffler v. Bezio, 726 F.3d 144, 162 (2d Cir. 2013) ("A defendant challenging the sufficiency of the evidence bears a heavy burden because . . . [the court] must view the evidence in the light most favorable to the prosecution, and doing so, must uphold the jury verdict as long as 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'") (quoting Jackson, 443 U.S. at 319) (emphasis in original).

Furthermore, "a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was 'objectively unreasonable.'" Cavazos, 132 S.Ct. at 4 (quoting Renico v. Lett, ___ U.S. ___, 130 S.Ct. 1855, 1862 (2010) (internal quotation marks omitted). The habeas court must be doubly deferential to state court determinations denying legal insufficiency claims applying the deference to state court decisions required under § 2254(d) to the state court's already deferential review under Jackson. Id. at 6.

Under Jackson, a habeas court is required to first look to state law for the substantive elements of the crime at issue. Jackson, 443 U.S. at 324 n.16. A person is guilty of Criminal Sexual Act in the First Degree when "he or she engages in oral sexual conduct or anal sexual conduct with another person . . . [b]y forcible compulsion." N.Y. Penal Law § 130.50(1). A person is guilty of Sexual Abuse in the First Degree when "he or she subjects another person to sexual conduct . . . [b]y forcible compulsion." N.Y. Penal Law § 130.65(1). Under New York law, the term "forcible compulsion" means "to compel by either . . . use of physical force; or . . . a threat, express or implied, which places a person in fear of immediate death or physical injury to himself, herself or another person, or in fear that he, she or another person will immediately be kidnaped." N.Y. Penal Law § 130.00(8).

The proper focus in determining forcible compulsion is "the state of mind produced in the victim by the defendant's conduct, because the sine qua non for criminal liability for sex offenses under [New York] Penal Law is lack of consent, resulting from either forcible compulsion or incapacity to consent." People v. Thompson, 534 N.Y.S.2d 132, 134 (1988); see also People v. Davis, 799 N.Y.S.2d 324, 325-26 (3d Dep't 2005) ("Focusing on the evidence establishing the state of mind of the victim caused by defendant's conduct, that is, not what the defendant would or could have done but rather what the victim observing the defendant's conduct, feared he would or might do if the victim did not comply with his demands . . . , we consider, among other factors, the victim's age, the size and strength of the victim and defendant and the nature of their relationship.") (internal citations, quotation marks, and punctuation omitted); People v. Smith, 756 N.Y.S.2d 290, 292 (3d Dep't 2003) (finding that forcible compulsion was established although the victim admitted that she refrained from struggling or crying out during the incident, where she testified it was because she was afraid of the defendant because he was much larger than she). The testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction. See U.S. v. Danzey, 594 F.2d 905, 916 (2d Cir. 1979) (per curiam). That is so even if the witness's testimony is not entirely consistent. See Hogan v. West, 448 F. Supp. 2d 496, 514 (W.D.N.Y. 2006).

According to J.S., Petitioner forced her to have anal sex twice and to felate him once on February 15, 2008. (Dkt. No. 342, 344-45.) Petitioner did not dispute that he engaged in anal sex with J.S. on February 15, 2008, claiming that it was consensual. (Dkt. No. 16-3 at 547.) J.S. testified that the first time Petitioner forced her to have anal sex, he put her on her stomach and held her wrists. (Dkt. No. at 342, 345.) J.S., who was alone in the trailer with Petitioner, tried not to say anything because she was afraid for her life because Petitioner, who by his own admission was a "good-size[d] man" significantly stronger than J.S., had already yelled and screamed at her, hit her in the head, and kicked her in the back and ribs, and she did not want to make things worse. Id. at 341-42, 550-51. When Petitioner told J.S. to felate him, she did it because she did not want him to hit her any more. Id. at 344. The second time he forced J.S. to have anal sex, Petitioner threw J.S. on the bed, placed her on her back and put her legs up so that her knees were by her head when he had anal sex with her. Id. at 445. J.S. testified that she said and did nothing because she was afraid Petitioner would start beating her again. Id. at 346.

As the Appellate Division concluded, People v. Clairmont, 906 N.Y.S.2d at 372, J.S.'s testimony was strongly supported by her taped telephone conversation with Petitioner the following day in which Petitioner repeatedly apologized for the acts about which J.S. testified. (Dkt. No. 16-3 at 549-50, 564-71.) The testimony of the paramedic in the ambulance and the nurse and doctor who had examined J.S. at Saratoga Hospital likewise supported J.S.'s account of the physical and sexual assault. Id. at 465-73, 488-89, 511-12.

The Court finds that a rational finder of fact viewing the evidence presented at trial in the light most favorable to the prosecution, could have found beyond a reasonable doubt that Petitioner acted with forcible compulsion in sexually assaulting J.S. The Court therefore concludes that the Appellate Division's rejection of Petitioner's legal insufficiency of the evidence argument was not contrary to, or an unreasonable application of, Jackson.

VII. Conclusion

Based upon the foregoing, the Court recommends that Petitioner's Petition for a writ of habeas corpus (Dkt. No. 1) be denied and dismissed.

WHEREFORE, based upon the foregoing, it is hereby

RECOMMENDED, that the Petition for a writ of habeas corpus (Dkt. No. 1) be DENIED and DISMISSED. The Court finds that Petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2) (2006) ("A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right."); see also Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). Therefore, the Court recommends that no certificate of appealability issue with respect to any of Petitioner's claims; and it is hereby

ORDERED, that the Clerk's Office provide Petitioner with copies of all unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health & Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: August 5, 2015

Syracuse, New York

/s/_________

Thérèse Wiley Dancks

United States Magistrate Judge


Summaries of

Clairmont v. Smith

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
Aug 5, 2015
9:12-CV-01022 (GTS/TWD) (N.D.N.Y. Aug. 5, 2015)
Case details for

Clairmont v. Smith

Case Details

Full title:JAMES R. CLAIRMONT, Petitioner, v. J.T. SMITH, Respondent.

Court:UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Date published: Aug 5, 2015

Citations

9:12-CV-01022 (GTS/TWD) (N.D.N.Y. Aug. 5, 2015)