Appeal from a judgment entered December 9, 1987 in the Southern District of New York, Whitman Knapp, District Judge, denying appellant's petition for a writ of habeas corpus, appellant having been convicted of nineteen sex offenses against minors arising from his sexual abuse of five children at a day care center in the Bronx. Judgment vacated and case remanded with instructions to dismiss petition for failure to exhaust state remedies.
Timbers, Meskill and Kearse, Circuit Judges.
Appellant Reverend Nathaniel T. Grady appeals from a judgment entered December 9, 1987 in the Southern District of New York, Whitman Knapp, District Judge, denying his petition for a writ of habeas corpus. Appellant was convicted of nineteen sex offenses against minors arising out of his sexual abuse of several children at a day care center in the Bronx. On appeal, he claims, first, that pretrial identification of him by the children was obtained through suggestive practices and was unreliable; second, that in-court identification was conducted in a way that violated his due process rights; third, that the trial court deprived him of his right of confrontation by allowing the sworn testimony of some of the children; and, fourth, that the trial court denied him due process by allowing an expert to testify on the Child Sexual Abuse Syndrome. The government, in addition to answering these claims, asserts that the petition must be dismissed because appellant has failed to exhaust his state remedies.
We hold that appellant has failed to exhaust his state remedies with respect to two of the claims raised on appeal. Under Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982), we vacate the judgment of the district court and remand the case with instructions to dismiss the petition.
We summarize only those facts and prior proceedings believed necessary to an understanding of the issues raised on appeal.
On May 1, 1986, appellant, a Methodist minister who formerly served as a member of the Board of Directors of a church-run day care center in the Bronx, was convicted following a jury trial of several sex offenses involving children who were sexually abused at the center. Specifically, he was convicted on two counts of first degree rape, in violation of N.Y. Penal Law §§ 130.35(1) and (3) (McKinney 1987); 13 counts of first degree sodomy, in violation of N.Y. Penal Law §§ 130.50(1) and (3) (McKinney 1987); and four counts of first degree sexual abuse, in violation of N.Y. Penal Law §§ 130.65(1) and (3) (McKinney 1987).
During the pretrial investigation, four of the children identified appellant's photograph in procedures that appellant later characterized as suggestive. At the trial in the Bronx County Supreme Court during the period November 7, 1985 to January 20, 1986, four of the five year old victims testified under oath; three made positive in-court identifications of appellant. The children's testimony was replete with contradictions and recantations. This, according to the district court, was attributable to their continued fear of appellant. An expert for the government, Eileen Treacy, testified regarding Child Sexual Abuse Syndrome ("CSAS"). This, she stated, could cause sexually abused children to suppress the memory of the abuse, refuse to discuss it, recant their accusation and, in a courtroom setting, evade a defendant who was present in the courtroom and deny that he was the abuser.
After conviction, appellant was sentenced to concurrent indeterminate terms of imprisonment of (1) from three to nine years on two counts of rape and two counts of sodomy against Tiffanie B.; (2) from three to nine years on two counts of sodomy against Harold O.; (3) from three to nine years on two counts of sodomy against James J.; (4) from three to nine years on four counts of sodomy against Marc G.; and (5) from two and a third to seven years on four counts of sexual abuse against Emmanuel L. The court ordered all sentences pertaining to each child to run consecutively. Pursuant to this sentence, appellant remains incarcerated.
Appellant appealed to the Appellate Division, First Department, which affirmed without opinion. 125 A.D.2d 1011, 508 N.Y.S.2d 359 (1st Dep't 1986). Leave to appeal to the New York Court of Appeals was denied. 69 N.Y.2d 880, 515 N.Y.S.2d 1028, 507 N.E.2d 1098 (1987). Appellant then filed the instant petition seeking federal habeas relief. The government responded that appellant had failed to exhaust state remedies with respect to two claims in the petition. The court, in an order dated October 13, 1987, held that appellant had exhausted state remedies and directed the government to respond to the petition on the merits. In an opinion dated December 4, 1987, the court subsequently denied appellant's petition. This appeal followed.
For the reasons stated below, we vacate the judgment and remand the case with instructions to dismiss the petition for failure to exhaust state remedies.
In Rose v. Lundy, supra, 455 U.S. at 522, the Supreme Court held that "a district court must dismiss habeas petitions containing both unexhausted and exhausted claims. To exhaust a claim, the petitioner must have presented the claim in the state court in a way "likely to alert the court to the claim's federal nature." Daye v. Attorney General, 696 F.2d 186, 192 ...