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Torres v. Maldonado

United States District Court, D. Connecticut

November 14, 2017

MICHAEL A. TORRES
v.
WARDEN MALDONADO

         PRISONER

          RULING ON PETITION FOR WRIT OF HABEAS CORPUS

          Michael P. Shea United States District Judge

         The petitioner, Michael Torres, is currently confined at Osborn Correctional Institution. In this habeas corpus action filed pursuant to 28 U.S.C. § 2254, the petitioner challenges his 2004 conviction for sexual assault in the first degree and risk of injury to a minor.

         I. Procedural Background

         Following a jury trial in July 2004, the petitioner was convicted of sexual assault in the first degree and risk of injury to a minor. He was sentenced to a thirty-year term of imprisonment, execution suspended after twenty-one years. Pet., Doc. No. 1, at 2.

         On direct appeal, the petitioner argued that he was denied a fair trial because the court improperly instructed the jury regarding the penetration element of sexual assault in the first degree and the date of the offense. The Connecticut Appellate Court affirmed the conviction and the Connecticut Supreme Court denied certification to appeal. State v. Michael T., 97 Conn.App. 478, 905 A.2d 670, cert. denied, 280 Conn. 927, 909 A.2d 524 (2006).

         In January 2005, the petitioner filed a state habeas action on the ground that trial counsel was ineffective and he was actually innocent of the charge. He included six examples of ineffective assistance, alleging that trial counsel failed to (1) present an expert in the pretrial stage of the case regarding the petitioner's propensity, or lack of propensity, to engage in sexual abuse of a child; (2) present an expert at trial on the issue of the reliability of the victim's disclosure; (3) present an expert at the pretrial stage concerning the disease trichomonas; (4) present an expert at trial concerning the disease trichomonas; (5) adequately investigate the case; and (6) engage in effective pretrial discovery. Torres v. Warden, No. CV05-4000278-S, 2008 WL 2426600, at *10 (Conn. Super. Ct. May 28, 2008). The habeas court found that trial counsel was ineffective in failing to present expert testimony on issues of the reliability of the victim's disclosures and the disease trichomonas. Id. at *13.

         The respondent appealed. The petitioner did not file a cross-appeal regarding the other four examples of ineffective assistance on which his petition was denied. The Connecticut Appellate Court affirmed the judgment of the habeas court regarding trial counsel's failure to present an expert to rebut the state's inculpatory medical evidence. Michael T. v. Commissioner of Correction, 122 Conn.App. 416, 417-18, 999 A.2d 818, 819 (2010). The Connecticut Supreme Court reversed on the issue of expert testimony regarding trichomonas and remanded the case to the Appellate Court to consider the issue of expert testimony on the suggestibility of the victim and the reliability of her recollections. Michael T. v. Commissioner of Correction, 307 Conn. 84, 103-04, 52 A.3d 655, 667 (2012). On remand, the Connecticut Appellate Court held that trial counsel's failure to present expert testimony on the reliability of the victim's disclosures constituted ineffective assistance. Michael T. v. Commissioner of Correction, 144 Conn.App. 45, 47, 71 A.3d 660, 662 (2013). Again, the Connecticut Supreme Court reversed. Michael T. v. Commissioner of Correction, 319 Conn. 623, 624-26, 126 A.3d 558, 559-60 (2015).

         II. The Federal Petition

         The petitioner challenges his conviction on four grounds. In the first two grounds, the petitioner asserted claims of improper jury instructions. He argued that the trial judge erred when he explained the penetration element of the crime sexual assault in the first degree and in charging the jury regarding the date of the offense. In the third ground, the petitioner asserted the same six examples of ineffective assistance of trial counsel asserted in his state habeas petition. In the fourth ground, the petitioner argued that the Connecticut Supreme Court relied on factual inaccuracies in its opinion.

         The respondent filed a motion to dismiss the petition because the petitioner did not exhaust his state court remedies with regard to all grounds for relief. In response, the petitioner stated that he wishes to proceed only on the exhausted claims, specifically, his claims for denial of a fair trial because the trial court improperly instructed the jury regarding the penetration element of sexual assault in the first degree and the date of the offense, and his claim for ineffective assistance of counsel based on trial counsel's failure to present expert testimony on the issue of the reliability of the victim's disclosures and on the disease trichomonas. The Court then denied the motion to dismiss and directed the respondent to address the merits of the petitioner's claims.

         III. Factual Background

         The Connecticut Appellate Court determined that, based on the evidence presented at trial, the jury reasonably could have found the following facts.

At the time of the underlying crime, the victim was four years old and lived with her mother, her older brothers and the [petitioner]. On May 14, 2002, the victim's mother gave birth to the [petitioner's] son. At the end of May, 2002, the victim complained to her mother that her “butt” hurt. Because the child's vagina was irritated and red, her mother took the victim to a pediatric clinic where she was a known patient. Elaine Ingram, a public health nurse at the clinic, noticed a brown, green, yellow, foul smelling stain in the victim's underwear. A wet mount culture of the child's vaginal area tested positive for trichomonas, a sexually transmitted disease. Trichomonas is a protozoa that lives in the urinary tract or prostate of males and in the vagina or urinary tract of females.
Ingram suspected that the victim had been sexually abused and therefore reported the incident to the department of children and families (department). Cynthia Pfeifer, an investigative social worker with the department, was assigned to the case. According to Pfeifer, the victim told her that no one had ever touched her private parts. Pfeifer requested that everyone in the family be tested for trichomonas. The victim's mother tested positive for the disease, but the other members of the victim's family did not. In June, 2002, the [petitioner] left the victim's household. Pfeifer telephoned the [petitioner] and asked that he come to see her on July 29, 2002. When she saw the [petitioner], Pfeifer arranged for him to be tested for trichomonas, but he did not keep the appointment. In August, 2002, Tawanda Ebron, a treatment worker with the department, was assigned to the case. She repeatedly attempted to contact the [petitioner] by leaving telephone messages for him, but she never talked with him.
When the victim was in kindergarten, her mother gave permission for the child to attend a “good touch-bad touch” presentation. A day or two after the presentation, the victim's mother discussed the presentation with the child, who revealed that the [petitioner] had touched her. The victim cried when she told her mother what the [petitioner] had done to her. According to the victim, the incident happened in her mother's bedroom while the mother was at a store. At trial, the victim testified that the [petitioner] “put his thing in my privates.” She demonstrated to the jury with anatomically correct dolls what had transpired between her and the [petitioner], including the removal of certain garments. The victim told the jury that because the [petitioner] did that to her, she had to go to a doctor. The victim acknowledged that at school, she had learned about good touching and bad touching and feeling safe and not feeling safe. According to the victim, what the [petitioner] had done to her was a bad touch. On cross-examination, the victim responded affirmatively when defense counsel asked her if the [petitioner's] “thing” went inside her body.
Janet Murphy, a pediatric nurse practitioner, is affiliated with the child sexual abuse evaluation program at Yale-New Haven Hospital. She examined the victim in 2002. Murphy's physical examination of the victim's genital area was normal, and the victim said “no” when asked if anything had happened to her. Murphy explained that, typically, a child of the victim's age cannot explain to a professional how the sexual abuse occurred. Furthermore, it is not uncommon for the results of the examination of the genitalia to be normal, even for children who are able to provide specific information about things having been put inside different parts of their bodies. The state placed into evidence two exhibits depicting a generic sketch of the female genitalia, which Murphy explained to the jury. With the aid of the exhibits, Murphy testified as to how the genital area of a young girl may be penetrated without affecting or touching the hymen.
Lisa Melillo-Bush, a school psychologist and forensic interviewer, testified about children's delayed disclosure of sexual abuse. According to Melillo-Bush, a four year old is not expected to have knowledge of sexual activity, and a child would not know that she had been abused until she learned what abuse was. Melillo-Bush also testified that conceptually, children have difficulty relating time and space.
The [petitioner], who was thirty years old at the time of trial, was the only defense witness. He testified that he did not put his penis in the victim's vagina or ever attempt to do so. He also testified that he never put the victim in the position she demonstrated with the anatomically correct dolls and that he did not sexually abuse her.

State v. Michael T., 97 Conn.App. 478, 480-82, 905 A.2d 670, 672-73 (2006) (footnotes omitted).

         IV. Standard of Review

         The federal court will entertain a petition for writ of habeas corpus challenging a state court conviction only if the petitioner claims that his custody violates the Constitution or federal laws. 28 U.S.C. § 2254(a).

         The federal court cannot grant a petition for a writ of habeas corpus filed by a person in state custody with regard to any claim that was rejected on the merits by the state court unless the adjudication of the claim in state court either:

(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). The federal law 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.), cert. denied, 537 U.S. 909 (2002). Clearly established federal law is found in holdings, not dicta, of the Supreme Court at the time of the state court decision. White v. Woodall, 572 U.S.__, __, 134 S.Ct. 1697, 1702 (2014). Second Circuit law that does not have a counterpart in Supreme Court jurisprudence cannot provide a basis for federal habeas relief. See Renico v. Lett,559 U.S. 766, 778 (2010) (holding that court of appeals erred in relying on its own decision in a federal habeas ...


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