Liberta v. Kelly

Citation839 F.2d 77
Decision Date09 February 1988
Docket NumberNo. 185,D,185
PartiesMario R. LIBERTA, Petitioner-Appellant, v. Walter R. KELLY, Superintendent, Attica Correctional Facility, Respondent-Appellee. ocket 87-2199.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

R. Nils Olsen, Jr., Buffalo, N.Y., for petitioner-appellant.

Jo W. Faber, Asst. Dist. Atty. for Erie County, Buffalo, N.Y. (Richard J. Arcara, Dist. Atty. for Erie County, Buffalo, N.Y., John J. DeFranks, Asst. Dist. Atty., of counsel), for respondent-appellee.

Before CARDAMONE, WINTER and MINER, Circuit Judges.

WINTER, Circuit Judge:

A jury in the Supreme Court of New York for Erie County convicted Mario R. Liberta of forcibly raping and sodomizing his estranged wife in violation of N.Y. Penal Law Secs. 130.35(1) and 130.50(1) (McKinney 1987). The rape statute, N.Y. Penal Law Sec. 130.35, provided that only men could be convicted of rape. In addition, although both the rape and sodomy statutes exempted from criminal liability individuals committing forcible sexual acts upon their spouses, Liberta was considered unmarried under the statutes because he had been ordered by a family court to live apart from his wife. On direct appeal, Liberta argued that the evidence against him was insufficient to support the convictions and that, in any event, New York's rape and sodomy statutes violated the New York and federal equal protection clauses. The New York Court of Appeals held that the statutes were unconstitutional as originally drafted but nevertheless affirmed Liberta's conviction by excising the gender and marital exemptions instead of invalidating the statutes in their entirety. People v. Liberta, 64 N.Y.2d 152, 474 N.E.2d 567, 485 N.Y.S.2d 207 (1984), cert. denied, 471 U.S. 1020, 105 S.Ct. 2029, 85 L.Ed.2d 310 (1985).

Liberta subsequently filed a petition for a writ of habeas corpus in the Western District of New York. He argued once again that the evidence against him was insufficient and that his convictions violated the due process clause of the fourteenth amendment because they had been obtained under what were essentially newly created statutes. In addition, Liberta contended that the rape and sodomy statutes as originally drafted violated the federal equal protection clause. Chief Judge Curtin rejected both contentions. Liberta v. Kelly, 657 F.Supp. 1260 (W.D.N.Y.1987). We affirm.

BACKGROUND

Mario Liberta and Denise Liberta were married on March 19, 1978. Soon after the birth of their only child, Michael, Mario began to beat Denise. Consequently, after about one year of marriage, Denise obtained a judicial order ordering Mario to stay away from her. The couple continued to live together sporadically, although Denise obtained at least two other protective orders from a family court. The second of these protective orders, dated September 4, 1980, again required Mario to live apart from Denise but allowed him to visit Michael on weekends. After missing his visit on the previous Saturday, Mario persuaded Denise to allow him to visit Michael on Tuesday, March 24, 1981, by promising her that a friend of his would attend. Mario and his friend Joe Meli then brought Denise and Michael to the Mohawk Motor Inn, where Mario was living. Meli left the motel, however, while Mario, Denise and Michael went to Mario's room. Denise testified After a jury trial, Mario Liberta was convicted of rape and sodomy. The rape statute under which he was convicted, N.Y. Penal Law Sec. 130.35, provides that "[a] male is guilty of rape in the first degree when he engages in sexual intercourse with a female ... [b]y forcible compulsion" (emphasis added); a "female" under the statute is defined as "any female person who is not married to the actor." N.Y. Penal Law Sec. 130.00(4) (McKinney 1987) (emphasis added). The sodomy statute, N.Y Penal Law Sec. 130.50, provides that "[a] person is guilty of sodomy in the first degree when he engages in deviate sexual intercourse with another person ... [b]y forcible compulsion"; "deviate sexual intercourse" is defined as "sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and penis, or the mouth and the vulva." N.Y. Penal Law Sec. 130.00(2) (emphasis added). Thus, as the New York Court of Appeals explained, "due to the 'not married' language in the definitions of 'female' and 'deviate sexual intercourse,' there is a 'marital exemption' for both forcible rape and forcible sodomy." People v. Liberta, 64 N.Y.2d at 159, 474 N.E.2d at 570, 485 N.Y.S.2d at 210. This exemption, however, does not apply to every legally married couple. In particular, a husband and wife are not considered to be married if, at the time of the sexual assault, they "are living apart ... pursuant to a valid and effective ... order issued by a court of competent jurisdiction which by its terms or in its effect requires such living apart." N.Y. Penal Law Sec. 130.00(4)(b)(i).

that once they entered the room, Mario forced Denise to perform oral sex upon him as their son watched. Mario then raped Denise.

The Appellate Division of the Supreme Court of New York, Fourth Department, affirmed Liberta's conviction, People v. Liberta, 100 A.D.2d 741, 473 N.Y.S.2d 636 (1984), and the New York Court of Appeals granted leave to appeal. The Court of Appeals held that both the exemption of women from criminal liability for rape and the marital exemption contained in the rape and sodomy statutes violated the equal protection clauses of both the federal, U.S. Const. amend. XIV, Sec. 1, and New York, N.Y. Const. art. I, Sec. 11, constitutions. The Court of Appeals found that "there is no rational basis for distinguishing between marital rape and nonmarital rape," and that "[t]he various rationales which have been asserted in defense of the exemption are either based upon archaic notions about the consent and property rights incident to marriage or are simply unable to withstand even the slightest scrutiny." 64 N.Y.2d at 163, 474 N.E.2d at 573, 485 N.Y.S.2d at 213. The court also held that the fact that N.Y. Penal Law Sec. 130.35 proscribed only rapes committed by men rendered that provision unconstitutional. The court concluded that the State of New York had failed to meet its burden of providing an " 'exceedingly persuasive justification' " for the gender-based classification contained in Section 130.35. Id. at 170, 474 N.E.2d at 577, 485 N.Y.S.2d at 217 (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 3336, 73 L.Ed.2d 1090 (1982)).

The Court of Appeals nevertheless affirmed Liberta's convictions. Observing that "the unconstitutionality of one part of a criminal statute does not necessarily render the entire statute void," id., at 64 N.Y.2d at 170-71, 474 N.E.2d at 578, 485 N.Y.S.2d at 218, the court elected to "strik[e] the marital exemption from sections 130.35 and 130.50 of the Penal Law and the gender exemption from section 130.35 of the Penal Law, so that it is now the law of this State that any person who engages in sexual intercourse or deviate sexual intercourse with any other person by forcible compulsion is guilty of either rape in the first degree or sodomy in the first degree." Id. at 172, 474 N.E.2d at 578-79, 485 N.Y.S.2d at 218-19. The court concluded that Liberta's convictions could be affirmed "[b]ecause the statutes under which the defendant was convicted are not being struck down." Id., 474 N.E.2d at 579, 485 N.Y.S.2d at 219. The court held that its decision did not deprive Liberta of due process, because "his conduct was covered by Neither can it be said that by the affirmance of his conviction the defendant is deprived of a constitutionally protected right to equal protection. The remedy chosen by our opinion is to extend the coverage of the provisions for forcible rape and sodomy to all those to whom these provisions can constitutionally be applied. While this remedy does treat the defendant differently than, for example, a married man who, while living with his wife, raped her prior to this decision, the distinction is rational inasmuch as it is justified by the limitations imposed on our remedy by the notice requirements of the due process clause (US Const, 14th Amdt), and the prohibition against ex post facto laws (US Const, art. I, Sec. 10). Thus, for purposes of choosing the proper remedy, the defendant is simply not similarly situated to those persons who were not within the scope of the statutes as they existed prior to our decision.

                the statutes as they existed at the time of his attack on Denise."    Id. at 173, 474 N.E.2d at 579, 485 N.Y.S.2d at 219.  Moreover, the court stated that the affirmance did not deny Liberta equal protection
                

To reverse the defendant's conviction would mean that all those persons now awaiting trial for forcible rape or sodomy would be entitled to dismissal of the indictment. Indeed if we were to reverse no person arrested for forcible rape or sodomy prior to the date of this decision could be prosecuted for that offense, and every person already convicted of forcible rape or sodomy who raised the equal protection challenge would be entitled to have the conviction vacated. As the equal protection clause does not require us to reach such a result, we decline to do so.

Id., 474 N.E.2d at 579-80, 485 N.Y.S.2d at 219-20. After the Supreme Court denied his petition for a writ of certiorari, Liberta v. New York, 471 U.S. 1020, 105 S.Ct. 2029, 85 L.Ed.2d 310 (1985), Liberta filed the petition for a writ of habeas corpus that is the subject of this appeal.

DISCUSSION

Liberta once again challenges the constitutional sufficiency of the evidence against him. 1 He contends that forcible compulsion, an element of both rape and sodomy under New York law, was not proven. He also claims that the prosecution did not adduce sufficient evidence supporting a finding that he and his wife were living apart "purs...

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