Alston v. Donnelly

• Decision Date: 21 November 2006
• Docket Number: No. 02-CV-6179(VEB).,02-CV-6179(VEB).
• Citation: 461 F.Supp.2d 112
• Parties: Bernard D. ALSTON, Petitioner, v. Edward DONNELLY, Superintendent, Respondent.
• Court: U.S. District Court — Western District of New York

461 F.Supp.2d 112

Bernard D. ALSTON, Petitioner, v. Edward DONNELLY, Superintendent, Respondent.

No. 02-CV-6179(VEB).

United States District Court, W.D. New York.

November 21, 2006.

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Bernard D. Alston, Alden, NY, pro se.

DECISION AND ORDER

BIANCHINI, United States Magistrate Judge.

INTRODUCTION

Petitioner, Bernard D. Alston ("Alston"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on one count of first degree rape (N.Y. Penal Law § 130.35(1)). The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

By Monroe County Indictment No. 6457/98, Alston was charged with first degree burglary and six sexual offenses (three counts of sodomy and three counts of first degree rape) against Cassandra Dean ("Dean"). The charges stemmed from an incident that occurred at Dean's house at 180 Webster Avenue on December 12, 1997. Count two charged sodomy under N.Y. Penal Law § 130.50(1) — namely, that Alston engaged in "deviate sexual intercourse ... by forcible compulsion, to wit: contact between the mouth and the penis[.]" Respondent's Exhibit ("Resp't Ex.") E at 46. Both counts four and six also charged sodomy under N.Y. Penal Law § 130.50(1) but under a slightly different theory — namely, that Alston engaged in "deviate sexual intercourse ... by forcible compulsion, to wit: contact between the mouth and the anus[.]" Resp't Ex. E at 47-48. Counts three, five, and seven charged Alston with first degree rape pursuant to N.Y. Penal Law § 130.35(1) under the same theory — that he "engaged in sexual intercourse with Cassandra Lee Dean, by forcible compulsion." Id.

Alston's jury trial was held in Monroe County Court (Egan, J.) in February 1999. Alston testified at trial despite an adverse Sandoval¹ ruling that allowed the prosecutor to question him about a 1990 conviction for possessing a stolen credit card. Dean, the victim, testified to four separate, nonconsensual, alternating acts sex — oral sodomy, sexual intercourse, anal sodomy, and sexual intercourse. Alston, on the other hand, testified that he had one act of consensual sexual intercourse with Dean that night.

Dean testified that on the night of December 11, 1997, she had been partying at her sister's house at 751 North Goodman Street and had consumed more than a six-pack of beer. T.182, 200-01.² According to Dean, she arrived home at approximately 4:30 a.m. in the morning of December 12th, at which point she laid down on the couch and watched television and dozed for a short time before hearing a knock on the door. T.184-86. The visitor was Norma Jean Colbert ("Colbert") who was a friend of Dean's. T.187.³

While they were chatting, Alston approached on his bicycle and greeted Colbert⁴, who introduced him to Dean. Dean testified that she had never met Alston before. A few minutes later, Dean invited them both inside and they all chatted. T.191-92. After about thirty minutes, Colbert announced that she was ready to go. However, Alston did not get up to leave until Dean told him that he had to go, too. At that point, Colbert and Alston left. Dean locked the door and returned to the couch. T.194-96.

A short time later, Dean heard another knock. She testified that as she unlocked the door, the person outside pushed it open and forced his way inside the house. T.197. It was Alston, brandishing a knife. According to Dean, she tried to fight him off with the cast that she had on her right arm, but to no avail. Alston stated, "You are going to give me that pussy." T.198. Alston snatched off her blouse, grabbed her by the hair, and dragged her into the spare bedroom. T.200. Dean related that Alston slammed her down onto a floor vent, causing her mouth to start bleeding. She said that Alston kissed her on the mouth and spat the blood out. T.203.

Dean testified that Alston "showed [her] the knife more" and told her to "get on [her] knees[.]" T.204. He then placed his penis into her mouth for a "[n]ot even five seconds." Id. Alston then announced, "[T]ake your clothes off, bitch. I want some pussy." Id. Dean took her clothes off, and Alston then put his penis into her vagina, while "calling [her] names, whores and bitches ... and stuff like that." Id. Alton then stated, "[T]urn your ass around," and he put "his penis in [her] behind." T.205. Dean testified that his penis actually penetrated her anus and that she was in pain. On cross-examination, when asked if there was any bleeding, Dean replied affirmatively. T.302. Alston then removed his penis from her anus and put it back into her vagina, saying "[F]uck me back, fuck me back." Id. At that point, Dean testified, Alston ejaculated into her vagina, and laid on top of her for a few seconds. He then told her that she "better not get up" or he "was going to kill [her]." Alston then ran out the door. T.206.⁵ Dean testified that the knife was not always displayed; that sometimes he put the knife into his pocket and would threaten to take it back out by "doing [her] rough." Id.

As soon as Alston left, Dean ran to her sister's house where she called 911 at 5:45 a.m. T.211-12. She was taken to the emergency room where she was treated, a rape kit was prepared,⁶ and she was then released. T.212. The physician's assistant testified that Dean was "emotionally upset, tearful, but not hysterical" and that her behavior was consistent with that of other sexual assault victims. T.316-17. The only sign of physical trauma was the lacerated lip; the" physician's assistant testified, however, that a report of a person being anally penetrated did not necessarily yield any type of physical trauma. T.322.

Officer Koehn of the Rochester Police Department testified that when Alston voluntarily waived his rights and gave the following written statement which was introduced into evidence at trial:

I, Bernard Alston, am twenty-nine years of age, and reside at 825 North Goodman Street. Officer Koehn has explained to me that I have the right to remain silent; I do not have to say anything if I do not want to; anything I say can be used against me in a court of law; I have a right to talk to a lawyer before I answer any questions and to have a lawyer with me during questioning, if I so desire; if I can't pay for a lawyer, one will be provided for me before any questioning, if I wish; and that if I do agree to talk about this matter without a lawyer present, I can stop talking at any time. I have read the statement of my rights or have had this entire statement read to me. I willingly make the following statement: About a week ago at night, I remember because it was night, I had two forty ounce beers and was drunk. I was also high on cocaine. Also, I had been with someone who gave me a hit of cocaine. I was walking, I remember it was Webster Avenue, and I ran into a girl I know named Norma [Colbert]. Me and Norma's mom used to work together. Me and Norma went into a house on Webster Avenue. It was a brown house. There was a girl there who I recognized from a while ago. I know she's a prostitute, and I think she cheated me once before. By that, I mean, that we had smoked some drugs together before with the idea that we would have sex, and after we smoked she would leave and not have sex. Me and Norma and this girl went to get drugs, and this girl said when we get back, we will do something. I understood her to mean that we were going to have sex. After we smoked, Norma left. Then this girl put me out of the house. By that, I mean, she started opening the door and asking me to leave. I thought, she ain't [sic] going to do this to me again. I left and walked a couple of blocks. Then I came back. This girl opened up the door and let me in. I went into the house and thought we'd have sex. I tried to talk her into it and thought if I got her into the position for it, she would want to. You could say that I forced her. I kind of pulled on her and tugged on her. I took off some of her clothes and she took off her pants. Then we had straight sex. Afterwards, I left. Officer Koehn told me that this girl's name was Cassandra Dean or Sandy. I did find out later, afterward, this girl's son was a guy I know named Lamont because I had an altercation over the incident. I know I shouldn't have forced Sandy to have sex, that it was dead ass wrong, but I was drunk and wasn't thinking clearly. My job is very important to me and I want to return to it. I am trying to get my life together and I need my job. My boss is counting on me to be to work. My kid is counting on me too. I'm sorry that this happened and like another chance to maybe get into another rehab program. I gave this statement to Officer Koehn. He didn't threaten me or make promises to me.

T.482.

Alston testified that on the night of the incident, he was walking down Webster Avenue when he saw Colbert, standing in the doorway of 180 Webster Avenue, talking to Dean. T.528. Alston said that he walked up to Colbert and asked her for a light, and that he was then invited into the house. Alston asked whether they "kn[e]w where any dope was[?]" Colbert responded affirmatively, and the three of them left to go purchase thugs. As they were walking, Alston asked Colbert if Dean was "dating," which is term used to "ask a prostitute ... do you want to have sex for money or so forth." T.529. Colbert replied affirmatively and said, "[W]e can go back to Sandy's house[.]" Id.

Alston purchased two dime bags of crack cocaine and then they all proceeded back to Dean's house. On the way, Alston asked Dean if she was "dating" and Dean replied equivocally, asking "Why?" T.530. Once back at the house, Alston took out a dime-bag and split it three ways; they all smoked, drank beer and talked. T.530-31. Alston testified that he had a conversation of a sexual nature with the women; Colbert told...