United States District Court, D. Connecticut
MICHAEL A. TORRES
RULING ON PETITION FOR WRIT OF HABEAS CORPUS
Michael P. Shea United States District Judge
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.
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.
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).
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.
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).
The Federal Petition
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.
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.
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
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
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
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).
Standard of Review
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).
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;
(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