Kelsey v. Lewin
| Docket Number | 9:21-CV-348 (MAD/ATB) |
| Decision Date | 27 March 2023 |
| Parties | MICHAEL N. KELSEY, Petitioner, v. DONNA LEWIN, Hudson Correctional Facility Superintendent, Respondent. |
| Court | U.S. District Court — Northern District of New York |
MICHAEL N. KELSEY, Petitioner, pro se.
PAUL B. LYONS, AAG, for Respondent.
REPORT-RECOMMENDATION
This matter has been referred to me for Report and Recommendation by the Honorable Mae A. D'Agostino, United States District Judge, pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. Local Rule 72.3(c).
Petitioner while incarcerated at Hudson Correctional Facility,[1] filed this petition pursuant to 28 U.S.C § 2254, challenging a May 12, 2016 judgment of conviction after a St. Lawrence County Court jury found him guilty of Sexual Abuse in the First Degree, Attempted Sexual Abuse in the First Degree, Forcible Touching, and two counts of Endangering the Welfare of a Child. (Petition (“Pet.”) at 1) (Dkt. No. 1).
Petitioner was sentenced to serve seven years imprisonment followed by ten years of post-release supervision.
On August 24, 2016, petitioner filed a post-trial motion to vacate the judgment of conviction pursuant to N.Y. Crim. Proc. Law (“CPL”) § 330.30. (State Court Record (“SR”) 31-107).[2] The trial court denied petitioner's motion on October 18, 2016. (SR 108-10).
On direct appeal to the Appellate Division, Third Department (“Appellate Division”), petitioner filed a counseled brief as well as a pro se reply brief. (SR 332550, 840-79). The Appellate Division unanimously affirmed the judgment of conviction on July 3, 2019. People v. Kelsey, 174 A.D.3d 962 (3d Dep't 2019) (SR 884-90). Petitioner filed pro se papers applying for leave to appeal to the Court of Appeals, which request was denied on October 15, 2019. People v. Kelsey, 34 N.Y.3d 982 (2019) (SR 996-97).
Petitioner filed a pro se coram nobis motion in the Appellate Division on August 4, 2019, which was denied on January 23, 2020. (SR 998-1005, 1011-12). Petitioner applied for leave to appeal to the Court of Appeals (SR 1013-21), and the Court of Appeals denied leave on December 28, 2020. People v. Kelsey, 36 N.Y.3d 973 (2020) (SR1024-25). Petitioner filed a pro se petition for a writ of certiorari with the United States Supreme Court . (SR1026-89). The Court denied the writ on May 3, 2021. Kelsey v. New York, No. 20-7308, 2021 WL 1725238 .
On February 24, 2020, petitioner filed a motion to vacate the conviction pursuant to CPL § 440.10. (SR 1090-92). Judge Catena issued a Decision and Order on June 9, 2020, denying the motion in its entirety. (SR 1714-17). Petitioner applied to the Appellate Division for leave to appeal, and his application was denied on March 11, 2021. (SR 1719-55, 1759-60).
Petitioner filed a pro se state habeas petition pursuant to CPLR Article 70 on November 23, 2020. (SR 1761-1817). The Columbia County Supreme Court denied the petition on March 16, 2021, and petitioner appealed this decision to the Appellate Division on April 11, 2021. (SR 1820-28, 1829-33). The Appellate Division denied petitioner's appeal on March 10, 2022, People ex rel. Kelsey v. Lewin, 203 A.D.3d 1366 (3d Dep't 2022), and upon leave to the Court of Appeals, the Court dismissed petitioner's appeal sua sponte on June 14, 2022, “on the ground that [petitioner] has been released[.]” People ex rel. Kelsey v. Lewin, 38 N.Y.3d 1054 (2022). Petitioner's motion for reconsideration was denied on September 13, 2022. People ex rel. Kelsey v. Lewin, 38 N.Y.3d 1166 (2022).[3]
In his extensive federal habeas corpus application filed on March 24, 2021, petitioner raises a host of arguments as grounds for relief. (See Pet., generally). Respondent filed a response to the petition, together with the pertinent state court records and a memorandum of law. (Dkt. Nos. 27, 28, 29, 32). For the following reasons, this court agrees with respondent and will recommend denying the petition.
Respondent has included a detailed description of the facts and procedural history of this case. (Resp. MOL at 2-31) (Dkt. No. 27). This court will summarize the relevant facts as set forth in the state court record for clarity, and will discuss specific facts as necessary in the analysis of petitioner's claims.
On June 30, 2015, petitioner was charged by a grand jury in a five-count indictment filed in St. Lawrence County. (SR 120-22). The first count was brought pursuant to New York Penal Law § 130.65(2), and charged petitioner with committing sexual abuse in the first degree for touching DC's[4] penis while DC was asleep. (SR 120). The second count was brought pursuant to New York Penal Law § 110.00/130.65(2), and charged petitioner with attempting to commit sexual abuse in the first degree for attempting to touch JD's penis while JD was asleep. (SR 120-21). The third count was brought pursuant to New York Penal Law § 130.52, and charged petitioner with forcible touching for touching DC's penis for the purpose of degrading or abusing DC, or for gratifying petitioner's sexual desire. (SR 121). The fourth and fifth counts were brought pursuant to New York Penal Law § 260.10(1), and charged petitioner with endangering the welfare of a child by knowingly acting in a manner likely to be injurious to the physical, mental, or moral welfare of both DC and JD. (SR 121-22).
Petitioner was arraigned on July 16, 2015, at which time he plead not guilty to the indictment. (Dkt. No. 32-1 at CM/ECF pp. 51-65). Petitioner was released under probation supervision. (Id. at CM/ECF p. 60). On April 12, 2016, he appeared for a court conference with retained defense counsel, Richard Portale.[5] (Dkt. No. 32-1 at CM/ECF pp. 6-10). At the conference, petitioner waived his right to a Huntley hearing as it related to the suppression of a controlled call between petitioner and JD's mother, which the government sought to introduce as evidence at trial. (Id.). The parties also discussed whether the government had satisfied its obligation to disclose all existing Brady material in their possession. (Id.). Last, defense counsel stated his understanding that the government did not, at that time, intend to make an application to introduce evidence of any prior bad acts under Molineux or Ventimiglia. (Id.).
A seven day jury trial was held in St. Lawrence County Court before the Honorable Felix J. Catena,[6] commencing on May 2, 2016. (Dkt. No. 32-1 at CM/ECF pp. 84-1439 (Trial (“T”) 1-807)). Prior to jury selection, Mr. Portale informed the court that petitioner, an attorney of the New York State bar in good standing, would be acting as “co-counsel” or “second chair,” and would be handling some of the witnesses. (T 10-12, 22). Petitioner then delivered his own opening statement. (T 237-75). In the middle of petitioner's opening statement, the court ruled that petitioner had “opened the door” for the prosecution to introduce, during their case-in-chief, evidence of petitioner's “prior bad acts.” (T 260-61).
The prosecution presented the following evidence from five witnesses at trial, including JD and DC. JD and DC were fifteen years old at the time of the relevant crimes, and sixteen years old at the time of trial. They were close friends, and both members of the local Boy Scouts Troop 95. (T 278-81, 315-16, 386-87, 420-21, 47173, 480, 501-02). JD and DC met petitioner through Troop 95, where petitioner was an Assistant Scout Master and leader of the “Venture Patrol”-a group of older and “higher skilled” scouts who went on “more advanced trips than the rest of the troop.” (T 28283, 286-87, 387, 377, 473-74, 479, 495-96). In August of 2014, JD was the “crew chief” of the Venture Patrol, and worked with petitioner to plan and lead trips. DC was the assistant crew chief. (T 285-86, 372-73, 473-74, 499-501). Prior to August 2014, JD and DC had a good relationship with the petitioner; however JD denied ever having a “romantic relationship” with petitioner. (T 284, 475, 494).
The Troop 95 Venture Patrol went on a 50-mile hike at Cranberry Lake in the Adirondacks from August 13 through August 20 2014. The Scouts were accompanied by two adults, petitioner and Scout Master Tom Ricci. They drove to the excursion in two cars-JD, DC, and TN, another Scout, rode in petitioner's car. (T 286-89, 377-78, 478-81). The Scouts arrived to Cranberry Lake on August 13th at approximately 11:00 p.m. Because it was raining, they decided to sleep in the cars. In petitioner's car, petitioner slept in the driver's seat; TN slept in the passenger seat; and JD slept in the back seat. (T 289-90, 378-79, 481-82). DC also slept in petitioner's car, on his back in the center console of the front seat, with his left foot in the driver's side foot compartment, his right foot in the passenger's side foot compartment, and his head lying on backpacks stacked in the rear. (T 290-91, 482-83). While they slept, petitioner's body was situated so that his legs were stretched out on the dashboard in a way that “pinned down” DC's left leg, to the extent that DC “couldn't pull [his] left leg out or move it that much.” (T 291-92). DC fell asleep around midnight but was awakened by petitioner's “hand touching [DC's] penis” over DC's shorts. (T 291-93, 368). DC testified that he shifted to “act like [he] was waking up,” but he did not want petitioner to know he was awake because he “didn't know what to do.” (T 293-95). Petitioner continued to touch DC's penis over his shorts, and also attempted to put his hand under the waistband of DC's shorts, but stopped when DC “shifted.” (Id.). DC testified that he tried to squirm, move, and roll away, but was unable to move at first because he was “pinned” by petitioner's legs. (T 295, 319, 369). Even...
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