Howard v. McGinnis, 03-CV-6059 (VEB).

Citation632 F.Supp.2d 253
Decision Date13 July 2009
Docket NumberNo. 03-CV-6059 (VEB).,03-CV-6059 (VEB).
PartiesQuanaparker HOWARD, Petitioner, v. Michael McGINNIS, Superintendent, Southport Correctional Facility, Respondent.
CourtUnited States District Courts. 2nd Circuit. United States District Court of Western District of New York
632 F.Supp.2d 253
Quanaparker HOWARD, Petitioner,
Michael McGINNIS, Superintendent, Southport Correctional Facility, Respondent.
No. 03-CV-6059 (VEB).
United States District Court, W.D. New York.
July 13, 2009.

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Quanaparker Howard, Sonyea, NY, pro se.

Donna A. Milling, J. Michael Marion, Erie County District Attorney's Office, Buffalo, NY, for Respondent.


VICTOR E. BIANCHINI, United States Magistrate Judge.

I. Introduction

Pro se petitioner Quanaparker Howard ("Howard" or "petitioner") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Court, following a jury trial, on two counts first degree assault, one count of second degree assault, one count of first degree unlawful imprisonment, and one count of endangering the welfare of a child. The parties have consented to disposition of this matter by a

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magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

II. Factual Background and Procedural History

A. Overview

On August 11, 1998, Buffalo Police Officer Anthony Marshall, went to 313 Hempstead in Buffalo, to investigate a report of child abuse that had been made to Child Protective Services. T.185.1 That apartment was rented by Tiffany McCann ("McCann"), who was petitioner's girlfriend. T.204. Through the open doorway, the officer saw an emaciated child, Mikel McCann, who appeared to be about three or four years old. T.183,85. Officer Marshall entered the house and discovered, in an upstairs bedroom whose door had been taped shut from the outside, T.186. Officer Marshall removed the tape and entered the room where he found a nine-year-old boy, Keith McCann. The room was essentially empty save for a bed without any sheets on it and a red plastic baseball bat lying on the bed. T.192. Keith was naked and tied up in the closet with electrical cord, with his hands outstretched in a "crucifix" position: One arm was tied to the bedframe, and the bedframe was secured to the radiator with coaxial cable and speaker wire; and his other arm was tied to the metal clothes-pole in the closet with electrical cord. T.187. Keith's hands were covered with socks, and electrical cord was wrapped around his wrists over the socks. His legs were tightly tied together with electrical cord wrapped all the way from his knees up to his waist. Id. There was a pillowcase over his head, secured by a sock around his neck. Id. He appeared to have been "whipped and beaten"—his body was covered with marks and cuts, from his head to his feet; some of the wounds were old and some were fresh. The officer observed that Keith appeared to "have a split across his penis," which was reddened, swollen and raw. T.196, 199, 301-05.

At first, Officer Marshall did not think the boy was alive because he was not moving. T.187. When he and removed the pillowcase from the boy's head, the officer saw that there was electrical duct tape wrapped all the way around Keith's face from his nose down to his chin. T.188-89. Underneath the tape, a sock had been wadded and stuffed into the child's mouth and was soaked with saliva. T.189, 191. The officer untied Keith and brought him over to the bed where he untied the cord and peeled off the electrical tape. When Officer Marshall asked the boy who did this to him, Keith said that "his mom." T.195.

Keith was taken to the emergency room at Children's Hospital where he was treated for his injuries. At the hospital, Keith also stated, "Quan (i.e., petitioner) beat me with a red plastic baseball bat."

McCann was arrested that night when she arrived home from work a short time after the police arrived. Petitioner was arrested on two days later as he was driving his vehicle by McCann's apartment. T.205. He waived his rights and gave a statement to the police admitting his knowledge of, and participation in, the abuse of McCann's son. Following at the pre-trial suppression hearing, the statement was held to be voluntary and admissible. Prior to his joint trial with McCann, Howard's statement was redacted to remove references to McCann. In the part that was read into the record, petitioner admitted to hitting Keith on several occasions.

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B. The Trial

1. The Prosecution's Case

At trial, Keith testified to an escalating pattern of abuse at the hands of his mother and then subsequently by both his mother and petitioner, whom he called "Quan." See T.100 et seq. In the summer of 1997, McCann "started whooping [him]" with an extension cord and a belt when she would learn that he had misbehaved at school or he "would bring home a bad report" or would eat food that was off-limits to him. T.102, 131, 141. Keith stated that petitioner did hit him, but "in the first beginning [sic] Quan wouldn't whoop [him]." T.102-03. Sometimes he would be wearing clothes but other times his mother beat him while he was naked. Id.

Eventually, in the summer of 1998, his mother started tying him up in the basement, her bedroom, or his bedroom, using a telephone cord or a speaker cord. T.103. He would be naked and McCann would bind his hands and feet and then "whoop" him with "[t]he bat" on his legs and his back. T.104, 106. Keith testified that Quan also hit him with the baseball bat and when he was tied up in the basement, petitioner "had whoop [sic][him] with the extension cord," as well. T.105; see also T.143-44. He was not given anything to eat, and when he had to go to the bathroom he "had to go on [him]self." T.106-07. Keith stated that with regard to this first incident, he was tied up "[a] long time"—he "was standing up overnight" and "in the morning [petitioner] untied the ropes" and Keith went back to his room. T.147-48.

Keith also described the incident that culminated in the police discovering him on August 11, 1998. ("I was tied up again, but I wasn't—I wasn't going to get loose until five days, but that's when the police came, found me.... It was only two [nights] because that night the police found me."). Again, he was naked, deprived of food, and told to urinate on himself. At first, Keith was bound in his mother's bedroom in the same manner as he had been in the basement, with electrical cords and cables. T.107. On direct, his testimony was that his mother tied him up, and he thought that petitioner participated in tying his wrists together. T.150, 151. He estimated that he was tied up in his mother's room for "[a] while," that is, "more than a day[.]" T.109. McCann hit him with an extension cord and "[t]hat plastic bat." She also threw a plastic hairbrush at his head "cause [he] was moving around" and his arms "came down." T.111, 161. McCann told him "[t]o put them back up." T.111. After the brush hit his head, it "hit the wall real hard and it cracked," and his mother was not happy about it. T.110.

After a while, his mother moved him out of her room in the afternoon because she had to go to work, and tied him up again in his bedroom. T.112-15, 154-55. He was still naked. His mother then "stuffed" a sock "all the way down [his] mouth." T.116. "Quan had came [sic] home" and "bought some ... black tape" which he put "around [Keith's] mouth." T.116, 157-58. McCann then pulled a pillowcase over the boy's head. T.117. Keith testified that he knew that "Quan had hit [him]" and his mother had hit him, "but when the pillow case was over [his] head [he] wasn't sure" who was hitting him. T.118. His mother and petitioner beat him with the bat and the extension cord "[a] lot" both before and after the pillowcase was put on his head; he was "not sure how many times." T.118. He would twist to try to get away from the blows which landed all over his body—to his back, his legs, his arms, and his stomach. T.119. Keith pointed out a scar on his wrist from being tied up, and scars on his left upper arm from being hit

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with the extension cord by his mother and petitioner. T.120-21, 123-25. He also testified that he has scars on his legs from where he was whipped with the extension cord. T.127.

When Keith arrived at the hospital, the examining doctor found "a lot of soft tissue injuries," as well as a swollen lip and a swollen right hand; crush marks on both wrists, resulting from a constriction or strangulation of the wrist; numerous cuts on his chest, back, and buttocks; a swollen penis with some blood at the end of it; and air under the skin on the right chest and shoulder. T.401-05. The x-ray showed a 10% collapsed lung (pneumothorax), and the CAT scan showed injuries to his internal organs: his liver had a lot of fluid in it (periportal edema), which is usually caused by a blunt injury. T.403. The duodenum, which connects the stomach to the small intestine, was bruised (hematoma), again suggestive of a blunt injury. Id. His liver function blood tests were indicative of injury; he had blood in his urine, again suggestive of blunt force injury to the kidneys. T.404, 407. The levels of CPC enzyme in his muscles was very high; usually it is about 200 and Keith's was 12,000. This indicates "lots of injuries to the muscles" by "[b]lunt forces or crushing forces." T.404. The internal injuries occurred within the past two to four days; most of the lacerations and bruises on his body were recent as well. T.405. Keith weighed only 53 pounds, which put him in the 10th percentile on children's growth charts. T.409.

On cross-examination, the doctor conceded that when the child arrived at the emergency room, none of his injuries appeared to be life-threatening. T.444-45. The doctor testified that had Keith been left unattended and not permitted to have food or water "for a continued amount of time, his dehydration would have gotten worse," and eventually he would have died from dehydration. T.410, 415. The issue of the dehydration was "probably the most pertinent," in the...

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