Greco v. Duncan, 98-CV-6339 (CJS) (W.D.N.Y. 10/4/2002)

• Decision Date: 04 October 2002
• Docket Number: 98-CV-6339 (CJS).
• Parties: GINO GRECO, Petitioner, v. GEORGE B. DUNCAN, Superintendent, Great Meadow Correctional Facility, Respondent.
• Court: U.S. District Court — Western District of New York

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GINO GRECO, Petitioner, v. GEORGE B. DUNCAN, Superintendent, Great Meadow Correctional Facility, Respondent.

98-CV-6339 (CJS).

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

October 4, 2002.

Gino Greco, pro se, Comstock, New York, for Petitioner.

Donna A. Milling, Esq., Assistant District Attorney Buffalo, New York, for Respondent.

DECISION AND ORDER

CHARLES J. SIRAGUSA, District Judge.

INTRODUCTION

Petitioner Gino Greco, proceeding pro se, seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, vacating his state court convictions for sodomy in the first degree, sexual abuse in the first degree, and criminal possession of a weapon in the third degree (N.Y. Penal Law §§ 130.50(1), 130.65(1), and 265.02(1)). For the reasons that follow, petitioner's application is denied and dismissed.

HABEAS CORPUS STANDARD

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996,("AEDPA"), a federal court can grant habeas corpus relief only if the State court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).

BACKGROUND

Between November 14, 1989 and April 21, 1990, in the City of Buffalo, several females including a young girl were sexually assaulted. On November 14, 1989, the young girl, Cherita M., then 12 years of age, was alone at her godmother's house when a man entered the house, put a knife to her throat, and forced her to go with him to the backyard. She described the man as a white male in his 30's, 5'4" or 5'5" tall, with short hair and a mustache, wearing a dark blue hooded sweat jacket. The man forced her to perform oral sex, and told her to swallow his ejaculate. During the assault, the man fondled her breasts and said things such as, "Do you like my cock?," and, "Would you like to get fucked?" After he ejaculated, the man told her, "You are really good." The man then asked her various questions about what she intended to do after he left.

Eventually, the man fled on foot. On December 10, 1989, Lynette S. was attempting to hitch hike when a man approached her on foot and told her that he would give her a ride. She described the man as "about 26 or 27" years old, approximately 5'6" or 5'7" tall, with a light brown thick mustache, wearing a dark blue hooded sweatshirt and dark tan jeans. The man led her into a driveway, then put a knife to her throat, and asked her how much money she had. The man then forced her to perform oral sex three times, told her to tell him that she "liked it," and told her that she "did it real good."

During the assault the man fondled her breasts. The man then fled on foot. On December 13, 1989, Anne H. was getting into her car when a man got in on the passenger side and said, "I just need a ride." She described the man as appearing to be Italian, in his 20's, approximately 5'8" to 5'9" tall, with a thin mustache, wearing a hooded sweatshirt and green army pants. The man smelled of alcohol and cigarettes.

The man then forced her to drive, and told her not to look at him. The man put a sharp instrument to her neck, then forced her to sit on the floor on the passenger side of the car. He then asked her if she had any money, then took $40 from her. The attacker then forced her to perform oral sex twice, while he asked her if she "liked it." He also fondled her breasts. He then asked her questions about what she was going to do after he left, and asked her if she wanted him to "fuck" her. The man then fled on foot. On December 15, 1989, Danielle G. was getting into her car when a man approached her, said, "All I need is a ride," grabbed her throat, forced her to sit on the floor of the passenger side of the car and told her not to look at him. She described the man as being in his "30's, 40's maybe," with "brownish blond" hair and a scratchy voice. The man smoked cigarettes and smelled of alcohol. The man forced her to perform oral sex and told her that she would "like it." Afterward, he said, "you liked it, didn't you?" The man also asked her if she wanted to have intercourse. The man then fled on foot. On January 7, 1990, Karen S. went into a Tops supermarket for a few minutes. She returned to her car and was driving away when a man climbed to the front of the car from the back of her station wagon. She described the man as approximately 5'7" or 5'8" tall, in his late twenties, wearing a hooded sweatshirt pulled tightly around his face. The man put a knife to her throat and said, "I just want a ride." She told the man she was pregnant and begged him not to hurt her, and he again said, "I just want a ride." He also asked her if she had any money. The man called her "girl." Eventually he made her stop the car, and get down onto the floor of the passenger's side, and told her, "Don't look at me." The man then drove the car to a location and stopped. He forced her to perform oral sex, and told her to swallow his ejaculate and act like she "liked it." He also fondled her breasts, and asked her if she wanted him to "fuck her." The man smoked Winston cigarettes, and she noted that he wore Fruit of the Loom underwear and a gold-tone wristwatch. On March 8, 1990, Kelly B. was parking her car, when a man opened her door, put a knife to her throat, and said, "I need a ride." The man called her "girl," told her not to look at him, and made her get on the floor on the passenger's side. She described the man as approximately 5'10" tall, "Italian looking," with short dark brown hair and a mustache. She could not remember what clothes he wore. He then drove to a location and forced her to perform oral sex, telling her to swallow his ejaculate. During the assault, he fondled her breasts, and asked her if she "liked it" and if she wanted him to "fuck" her. The attacker then fled on foot. On April 21, 1990, Kimberly K. was parking her car when a man opened her car door, put a knife to her throat, and told her, "I just want a ride." She described the man as appearing to be in his 20's, approximately 5'10" tall, Italian or Puerto Rican, with dark brown hair and a mustache. He wore a white windbreaker jacket smoke cigarettes and smelled of alcohol. He forced her to sit on the floor of the passenger side of the vehicle and told her to keep her face down and not look up. He also asked her if she had any money. He told her to perform oral sex, but she refused and hit him. He grabbed her and forced her to perform oral sex, but she continued to fight. He then put his knife to her eye and threatened to stab her eye. She continued to resist and the attacker eventually ejaculated on her clothing. He exited the car but left behind a white comb with a "fat handle" and a royal blue ski mask. He returned a few moments later and took the comb and ski mask.

Petitioner Gino Greco became a suspect shortly after the last of these assaults occurred. Lieutenant Paul Reinig, who at the time was in charge of the Sex Offense Squad of the Buffalo Police Department, indicated that petitioner, along with ten or twelve other men living in the area, had been arrested for sodomy and generally fit the description of the attacker. At that time, petitioner was 29 years old, 5'6" tall, with brown hair and a mustache. Lieutenant Reinig further recognized petitioner as having been a suspect in a series of robberies in North Buffalo where victims were approached in their cars by a man wearing a hood. Moreover, one of the sexual assaults began in the same Tops Supermarket parking lot where petitioner had previously committed a robbery. Petitioner had also been paroled from prison in October 1989, shortly before the sexual assaults began, after serving five years for two counts of attempted robbery in the first degree.

Members of the Buffalo Police Department interviewed petitioner on June 19, 1990. After being given his Miranda warnings, petitioner said, "I think I know what this is about. My parole officer[s] . . . told me when they arrested me I would never do anything to a woman [sic]," and he stated, "I would never do anything to a woman." During the interview, petitioner was made aware of the specific dates of the assaults. Petitioner indicated that he did not drive, and relied on the bus for transportation. Petitioner indicated that he smoked Marlboro cigarettes and used only matches, not a lighter. When asked to described his work clothing, petitioner described various jackets, but did not mention owning a blue hooded sweatshirt, and denied owning a white windbreaker. He further denied owning a white comb. When the interviewing officers asked petitioner if they could take his photograph, he said yes, but only if he could shave first. After shaving and consulting his attorney, however, he declined to be photographed.

That same day, June 19, 1990, the People applied for a search warrant for 449 Englewood, Apartment 1, Town of Tonawanda, the apartment in which petitioner had been staying with his sister. An assistant district attorney executed an affidavit in support of the search warrant application which indicated, inter alia, the following: 1) the descriptions given by the victims generally described petitioner, who was 29 years old, 5'6" tall, with brown hair and a mustache; 2) petitioner had an extensive criminal history, including convictions for robbery in the second degree and attempted robbery in the first degree; 3) petitioner had been arrested for consensual sodomy with a prostitute, and had pled guilty to a reduced charge of trespassing; 3) in committing the crimes of attempted robbery to which he pled guilty in 1984, petitioner had used a weapon to force his victims into their cars; 3) petitioner had been released from prison on October 10, 1989, shortly before the series of sexual assaults began; 4) petitioner had been in jail, on a charge of unauthorized use of a motor vehicle, between March 24, 1990 a...