Cummings v. Burge

• Decision Date: 23 September 2008
• Docket Number: No. 03-CV-6632L.,03-CV-6632L.
• Parties: Douglas T. CUMMINGS, Petitioner, v. John BURGE, Respondent.
• Court: U.S. District Court — Western District of New York

581 F.Supp.2d 436

Douglas T. CUMMINGS, Petitioner, v. John BURGE, Respondent.

No. 03-CV-6632L.

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

September 23, 2008.

COPYRIGHT MATERIAL OMITTED

Douglas T. Cummings, Ogdensburg, NY, pro se.

Frank A. Aloi, Frank A. Aloi, Esq., Rochester, NY, for Petitioner.

Alyson J. Gill, Office of New York State Attorney General, New York, NY, Gary M. Levine, New York State Office of the Attorney General, Rochester, NY, for Respondent.

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

Petitioner filed a petition for a writ of habeas corpus from a judgment entered against him in Wyoming County Court. The petitioner, Douglas T. Cummings ("Cummings"), was convicted after trial of rape in the first degree and was sentenced to a term of 10 ½ years imprisonment.

This Court referred the petition to United States Magistrate Judge Victor E. Bianchini, pursuant to 28 U.S.C. § 636(b). Pursuant to the order, Magistrate Judge Bianchini issued a thorough Report and Recommendation (Dkt. # 39) recommending that the Court deny Cummings' petition.

Cummings, now proceeding pro se, duly filed objections to the Magistrate Judge Bianchini's Report and Recommendation. I have reviewed the Magistrate Judge's Report and Recommendation, the objections filed by Cummings, and the record, and I accept and adopt the Report and Recommendation, in all respects. I see no reason to modify that Report and Recommendation and, therefore, Cummings' petition for habeas corpus relief is denied.

Magistrate Judge Bianchini discussed at length the pretrial proceedings, the trial and post-trial proceedings in his very thorough, 30-page Report and Recommendation. He sets out with great precision the relevant facts and rulings, and there is no need for me to repeat what he has set forth.

Magistrate Judge Bianchini considered all the claims raised, including claims of grand jury impropriety, lack of a speedy trial, and the alleged improper restriction of cross-examination of the victim.

I agree with Magistrate Judge Bianchini that there is no constitutional error as to any of these matters. Magistrate Judge Bianchini found no error. I also agree that none of the issues raised involve a federal constitutional violation.

The limitations concerning the cross-examination of the victim under New York's Rape Shield Law was an evidentiary matter and such rulings, even if erroneous, do not implicate a federal constitutional issue.

I also agree with Magistrate Judge Bianchini that Cummings' claim that his trial counsel was ineffective is without merit. Under the standards discussed by Magistrate Judge Bianchini, there is no basis here to second guess trial counsel's strategic decisions and under the well-established standards concerning ineffective assistance, there is no basis for relief here.

Cummings also challenges his sentence under the Eighth Amendment. As Magistrate Judge Bianchini discussed, the sentence imposed was well within the statutory limits and in view of the serious nature of the offense, rape in the first degree, Cummings has no claim that the Federal Constitution was violated based on his sentence in state court.

I have considered the other matters raised by Cummings and the thorough discussion of them by Magistrate Judge Bianchini, and I find no merit to the claims and no basis to conclude that any federal constitutional violation occurred. Cummings' trial was fair. His appeal to the Appellate Division, Fourth Department was denied and his conviction affirmed. His claims were fully considered there. In addition, he filed applications for collateral relief which have also been denied.

CONCLUSION

I accept and adopt the Report and Recommendation of United States Magistrate Judge Victor E. Bianchini in all respects. The petition of Douglas T. Cummings for a writ of habeas corpus is in all respects dismissed.

I decline to issue a certificate of appealability because Cummings has failed to make a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c).

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. INTRODUCTION

Douglas Cummings is incarcerated pursuant to a March 30, 2000 judgment of New York State, Wyoming County Court, convicting him of Rape in the First Degree, for which he was sentenced to a prison term of ten and one-half years. Represented by retained counsel Frank T Aloi, Esq., Cummings seeks a writ of habeas corpus pursuant to 28 U.S.C. 2254, alleging that this conviction was unconstitutionally obtained. Pursuant to an agreement with the Wyoming County District Attorney's Office, the New York State Attorney General's Office, Alyson Gill, Esq., of counsel, is representing respondent John Burge. Pursuant to 28 U.S.C. 636(b), this matter has been referred to the undersigned for the issuance of, inter alia, a report and recommendation regarding the disposition of Cummings' petition. For the reasons that follow, I recommend that the petition be denied.

II. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Pre-Trial Proceedings.

The conviction here at issue stems from an incident that occurred on November 29, 1997, at Wyoming County Community Hospital. Cummings, twenty-two yearsold at the time, was working with the hospital's maintenance staff, fulfilling his community service obligations as a result of a second-degree rape conviction. R. 185, 998, 1031.¹ B.S., seventeen years-old at the time, was volunteering at the Hospital as part of her high school studies in allied health. R. 877-79. The rape was alleged to have occurred in a stairwell where Cummings and B.S. had gone to talk.

On February 26, 1998, a Wyoming County Grand Jury returned a one-count indictment charging Cummings with first degree rape (New York Penal Law ("P.L.") § 130.35(1)). Prior to the case going to trial, B.S., who had retained an attorney, filed suit against the county and the hospital, alleging that they had failed to protect her from Cummings, whom they knew was a convicted rapist. Meanwhile, Cummings and his trial counsel pursued plea negotiations with the Wyoming County district attorney's office and had reached an agreement wherein Cummings would plea to a misdemeanor sexual offense, and receive a one-year sentence of time served. According to Cummings, after his family refused to pay the $300,000 demanded by B.S. to settle the civil case, B.S.'s civil attorney was permitted to intervene in the plea negotiations and veto the plea agreement. However, it appears that the district attorney did not want to try Cummings on the first degree rape charge, so B.S.'s civil attorney lobbied for the appointment of a special prosecutor to present the case to a second grand jury.

On April 15, 1999, Cummings moved for dismissal of the indictment in the interest of justice pursuant to C.P.L. § 210.40. R. 91-137. In their opposing papers, the People argued that fairness required the opportunity to present the case to another grand jury and that, to be fair, the jury must be allowed to choose between first degree rape and sexual misconduct, and be advised that one is a felony and one is a misdemeanor, and be informed of the differing lengths of sentences applicable to the two crimes. See R. 139. The defense did not contest the application.

The County Court (Dadd, J.) dismissed the indictment and granted leave to represent the case to another grand jury within 30 days. R. 146. A special prosecutor was appointed and four charges were read to the grand jury—first degree rape (a class B felony), sexual misconduct (a class A misdemeanor), first degree sexual abuse (a class D felony), and unlawful imprisonment (a class A misdemeanor). See R. 152-206; see also Respondent's Supplemental Memorandum of Law ("Resp't Supp. Mem.") at 3-6 (Docket No. 20). The jury returned an indictment approving all four counts.

Cummings was arraigned on May 28, 1999, on a three-count indictment charging him with first degree sexual abuse (P.L. § 130.651(1)); first degree rape (P.L. § 130.35(1)); and sexual misconduct (P.L. § 130.20(1)).

On September 27, 1999, the County Court required the People to elect between first degree rape and sexual misconduct. R. 333-38. Noting that the crimes had identical elements but differing punishments, the special prosecutor asserted that it would be "an injustice both to the People and the [petitioner]" to have to do so, and stated that he believed "the jury ought to be told the difference" and "given the opportunity to make that choice." R. 335. The trial judge disagreed and declined his request. The third count, charging sexual misconduct, accordingly was dismissed. R. 338. Thus, the case proceeded to trial on two charges—first degree rape, and first degree sexual abuse.

B. The Trial

Cummings was someone with whom B.S. had recently struck up a casual acquaintance. B.S. testified that they had talked on several occasions, and he had asked her out on dates; B.S. had turned him down, however, as she had a serious boyfriend at the time. R. 881-84. B.S. said that she still enjoyed talking with Cummings and saw no harm in pursuing a platonic friendship with him.

On November 29th, at Cummings' suggestion that they meet later in the day to talk, she agreed to meet him near the emergency waiting room at around noon. R. 882. Cummings suggested that B.S. accompany him into a stairwell that led to the roof of the hospital. R. 886. They proceeded up about four flights to a landing where they sat and talked for a while. R. 891, 893. Cummings then asked B.S. what she would do if he were to kiss her and she replied, "I don't know, I would not want to." R. 894, 1007. Moments later, B.S. recalled, Cummings suddenly grabbed her in a "bear hug" and began "forcefully" kissing her against her will. R. 895.

According to B.S., Cummings forced B.S. to open her mouth by pressing his tongue to her lips, and he pushed her head against the wall. R. 896-99. With his arms...