Dunham v. Travis

• Decision Date: 17 December 2002
• Docket Number: Docket No. 01-2779.
• Citation: 313 F.3d 724
• Parties: Craig DUNHAM, Petitioner-Appellee, v. Brion TRAVIS, Chair, New York State Parole Board, Respondent-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

313 F.3d 724

Craig DUNHAM, Petitioner-Appellee, v. Brion TRAVIS, Chair, New York State Parole Board, Respondent-Appellant.

Docket No. 01-2779.

United States Court of Appeals, Second Circuit.

Argued: September 18, 2002.

Decided: December 17, 2002.

Andrea G. Hirsch, New York, NY, for Petitioner-Appellee.

Robin Lamont, assistant district attorney, (Joseph Latino, assistant district attorney on the brief) for Jeanine Pirro, District Attorney of Westchester County, Westchester County District Attorney's Office, White Plains, NY, for Respondent-Appellant.

Before McLAUGHLIN and CABRANES, Circuit Judges, and LYNCH, District Judge.^*

McLAUGHLIN, Circuit Judge.

Brion Travis, on behalf of the New York State Parole Board appeals from the district court's grant of Craig Dunham's petition for writ of habeas corpus. We conclude that the district court erred in granting the writ of habeas corpus. Dunham's trial counsel was not constitutionally ineffective.

BACKGROUND

In 1996, petitioner, Craig Dunham, was convicted in the Westchester County Court of rape in the first degree and sexual abuse in the first degree. Dunham was sentenced to concurrent terms of incarceration of two to six years and one to three years' imprisonment, respectively. Dunham ultimately served four years, and is now on parole.

The victim was a woman named Georgetta Desio. Desio suffers from lupus, which is characterized by aching bones fatigue and swelling of the joints. Due to her illness, Desio regularly took a host of medications, including various tranquilizers, steroids, and pain relievers. Because of her illness and the medications, Desio often had difficulty moving when she awakened.

In 1993, Desio began a close relationship with Craig Dunham and his wife, Denise, who lived in the same apartment building as Desio. Dunham was the superintendent of the building. Dunham and his wife often cared for Desio when she was ill. Desio and the Dunhams eventually exchanged apartment keys to facilitate this relationship. An intercom was also installed between Desio's bedroom and the Dunhams' apartment.

On the morning of April 3, 1995, Desio called 911 and declared to the police that Dunham had raped her. The 911 call was recorded and later admitted into evidence at Dunham's trial. Desio was taken to the hospital where a rape kit test revealed the presence of semen. Additional semen stains were found on Desio's bed sheet and panties. DNA testing indicated that the stains on both items were Dunham's semen.

Desio's First Statement to the Police

After leaving the hospital on the day of the attack, Desio went to the police station where she gave a signed statement. In that statement, Desio said that Dunham had entered her bedroom early that morning and offered her Motrin. He then jumped on top of her. According to Desio, after he was on top of her for several minutes Dunham inserted his penis in her vagina, but he was unable to fully penetrate her because she was wearing a tampon. Desio stated that she told Dunham several times to get off her and that she scratched his back, "hoping that his wife would see the marks." After Dunham ejaculated, he left Desio's apartment. Desio then wiped herself off with her panties and called 911. Finally, Desio said that Dunham had done this to her several times in the past.

Dunham was arrested later the same day. After his arrest, Dunham's back was examined and scratch marks were indeed found. Dunham told the police that he did not have intercourse with Desio that day. Dunham conceded, however, that he and Desio had engaged in intercourse previously but that "it wasn't really like regular sex."

Desio's Statement to the Grand Jury

A month later, the case was presented to a grand jury, where Desio provided sworn testimony. With respect to the April 3rd incident, Desio stated that she was "half asleep" when Dunham woke her early that morning. According to Desio, Dunham offered her three Motrin pills but she did not take them and she fell back to sleep.

Desio testified that the next thing she remembered was Dunham inside her. Subsequently, Desio said she was aware of Dunham on top of her before penetration. While Dunham was on top of her, Desio was "vaguely asleep" and knew "he was there" but she "didn't have the strength to move." Desio then repeated that she was jarred awake by Dunham's penis hitting her tampon. When asked what she was doing between the time Dunham was on top of her and when she realized that Dunham was inside of her, Desio stated that she was "sleeping off and on." She also told the grand jury that she had scratched Dunham's back while he was inside her.

Desio also testified to the grand jury about two earlier incidents where Dunham sexually assaulted her. Desio alleged that Dunham had raped her in late March 1995 — just a few days before the April 3rd incident. Desio called the police after this incident but declined to press charges. Desio also testified that Dunham had sexually abused her in December 1994.

The grand jury charged Dunham with first-degree sodomy and sexual abuse (for the December 1994 incident) and with first-degree rape and sexual abuse (for the two later incidents). On all counts, the state proceeded under alternative theories of (1) forcible rape, see N.Y. Penal Law § 130.35(1), and (2) sexual intercourse with a female who is incapable of consenting by reason of being physically helpless ("physical helplessness" rape), see N.Y. Penal Law § 130.35(2).

Dunham's counsel submitted an omnibus motion seeking, inter alia, to have the Westchester County Court (Leavitt, J.) inspect the grand jury minutes to determine whether the evidence was legally sufficient to support the charges. The court inspected the grand jury minutes and denied the motion. Thereafter, Dunham waived a jury and proceeded to a bench trial.

The Trial

At trial, Desio testified that, before going to bed on April 2nd, she inserted a tampon in her vagina. Also, Desio stated that, as was her routine, she removed her panties and placed them under her pillow before falling asleep.

Desio testified that on April 3rd, she was awakened by Dunham's penis hitting her tampon. She stated that the pain had "jogged" her awake and that she scratched Dunham's back while he was inside her. She stated that after Dunham ejaculated, he left her apartment. Desio testified that after Dunham left, she placed her panties between her legs to preserve his semen. She then called 911.

Dunham's defense counsel cross-examined Desio extensively, bringing out internal inconsistencies in her trial testimony and revealing her abuse of cocaine and alcohol. It came out that Desio twice had been admitted to the hospital for psychiatric treatment and once had attempted suicide.

Although defense counsel questioned Desio as to whether she was awake before Dunham penetrated her on April 3rd, counsel never impeached Desio with either her statement to the police or her grand jury testimony. Desio insisted at trial that she had not seen, heard or felt Dunham on April 3rd before his penis hit her tampon and woke her up.

The trial judge acquitted Dunham of the counts relating to the March 1995 and December 1994 incidents. As to these two incidents, the court stated that, "[w]hile Ms. Desio appeared to be sincere, and not deliberately untruthful, in her attempts to relate the December and March incidents, her psychological, medical and emotional problems during this period were so severe as to cast doubt upon the reliability of her recollections of [the] events." Citing a lack of physical evidence, the trial court found reasonable doubt as to the first two incidents.

Regarding the April 3rd incident, however, the trial judge found that the scratches on Dunham's back and the forensic evidence showing the presence of his semen on Desio's panties and bed sheets corroborated Desio's account. Thus, with respect to the April 3rd incident the judge found Dunham guilty of rape in the first degree and sexual abuse in the first degree. The district court stated that because the "sexual contact occurred while Ms. Desio was asleep and [was] completed before she awakened," the rape conviction was necessarily based on Desio's "physical helplessness" rather than forcible compulsion.

In August 1997, Dunham, now represented by new counsel, filed a motion under N.Y.Crim. Proc. Law § 440.10 to vacate the judgment, alleging that his trial counsel was ineffective for not having impeached Desio at trial with her statement to the police. Denying the motion, the same court (Leavitt, J.) stated that the allegations were insufficient to establish ineffectiveness and that, as no off-the-record facts were alleged, the issue should be raised on a direct appeal. See N.Y.Crim. Proc. Law § 440.10(2)(c) (requiring courts to deny a motion to vacate the judgment where "sufficient facts appear in the record" for the claim to have been raised and decided on direct appeal). Dunham first sought leave to appeal the denial of his § 440 motion. Leave to appeal was denied. He then took a direct appeal from his conviction.

On the direct appeal, Dunham alleged that the state had failed to prove that Desio was asleep at the time of penetration and that the trial court's judgment of conviction was against the weight of the evidence. Although he adverted to the § 440 motion on his appeal, Dunham raised no claim that his trial attorney was ineffective. The Appellate Division affirmed Dunham's conviction, finding the evidence "legally sufficient to establish the defendant's guilt beyond a reasonable doubt, including the element of physical helplessness." People v. Dunham, 258 A.D.2d 469, 682 N.Y.S.2d 919, 919 (2d Dep't 1999) (memorandum decision). The Court of Appeals denied Dunham leave to appeal.

In August 2000, Dunham filed an application for a writ of habeas corpus in the United States District Court for the Southern District of New York (Brieant, J.). Dunham alleged that his trial counsel...