Liberta v. Kelly, CIV-85-830C.
| Decision Date | 21 April 1987 |
| Docket Number | No. CIV-85-830C.,CIV-85-830C. |
| Citation | 657 F. Supp. 1260 |
| Parties | Mario R. LIBERTA, Petitioner, v. Walter R. KELLY, Superintendent, Attica Correctional Facility, Respondent. |
| Court | U.S. District Court — Western District of New York |
State University of New York at Buffalo, Faculty of Law and Jurisprudence (R. Nils Olsen, of counsel), Buffalo, N.Y., for petitioner.
Richard J. Arcara, Dist. Atty. of Erie County (John J. DeFranks, Jo W. Faber, Asst. Dist. Attys., of counsel), Buffalo, N.Y., for respondent.
Elizabeth Holtzman, Dist. Atty. of Kings County (Peter A. Weinstein, First Deputy Bureau Chief, Appeals Bureau, of counsel), Brooklyn, N.Y., amicus curiae.
The petitioner was convicted of forcible sodomy and rape of his estranged wife, Denise Liberta, in the presence of their two-year-old son while they were living apart under a "Temporary Order of Protection."1 On appeal, this conviction was affirmed by both the Appellate Division, Fourth Department, People v. Liberta, 100 A.D.2d 741, 473 N.Y.S.2d 636 (4th Dept. 1984), and the New York Court of Appeals, People v. Liberta, 64 N.Y.2d 152, 485 N.Y. S.2d 207, 474 N.E.2d 567 (1984).
In its opinion, the New York Court of Appeals determined that a marital exemption under the rape and sodomy laws constitutes an unconstitutional violation of the Equal Protection Clauses of the United States Constitution. It therefore struck the exemption from sections 130.35 and 130.50 of the New York Penal Law. The court further held that section 130.35 of the Penal Law violated equal protection because it exempted females from criminal liability for forcible rape, and as a result, the gender exemption was also struck from that section of the statute. Notwithstanding the above, the New York Court of Appeals affirmed the petitioner's conviction based on the reasoning that petitioner was not similarly situated to those persons who were not within the scope of the statutes as they existed prior to the court's decision. See supra, footnote 1.
Following this decision, petitioner applied for a writ of certiorari to the United States Supreme Court, which was ultimately denied. Liberta v. New York, 471 U.S. 1020, 105 S.Ct. 2029, 85 L.Ed.2d 310 (1985). Petitioner then filed an application for a writ of habeas corpus with this court (Item 1).
Petitioner's current petition makes essentially three claims. He says that 1) the forcible rape and sodomy statutes, as written and under which he was indicted and convicted, violate equal protection; 2) the New York Court of Appeals applied two new judicially created statutes against petitioner ex post facto when it affirmed his conviction and, therefore, violated his due process and equal protection rights; and 3) the prosecutor did not prove its case beyond a reasonable doubt at trial and, therefore, denied petitioner due process. Each of these arguments will be addressed separately below.
In challenging the constitutionality of his conviction, petitioner asserts that the statutes as written were unconstitutional and violated his right to equal protection. I disagree and find that the statute, as it was applied to petitioner, was not unconstitutional and did not violate his equal protection rights. Those portions of the statutes that were determined by the New York Court of Appeals to be unconstitutional and consequently were stricken did not affect this petitioner in any way. Because the court determined that the applicable statutes were unconstitutionally underinclusive, it eliminated the marital and sex-based exemptions and retained the remaining constitutional portions. In declining the grant of certiorari, the Supreme Court impliedly recognized the right of the state court to enlarge the class of persons subject to criminal penalty as a remedy of a statute's unconstitutional underinclusiveness. It is clear that the petitioner himself was not directly affected by this expansion and, therefore, it cannot now be said that his rights were violated as a result. The New York Court of Appeals affirmed the petitioner's conviction below based upon this reasoning. People v. Liberta, 64 N.Y.2d at 171-73, 485 N.Y.S.2d at 218-20, 474 N.E.2d at 578-79.
This issue is closely related to petitioner's first claim. I find that it cannot be said that there was an ex post facto application of law to petitioner below because the acts committed by him were not criminalized for the first time by the New York Court of Appeals' 1984 decision but were proscribed when he committed them and remained criminal thereafter. As such, I find that petitioner had fair notice at the time of his conduct that it was criminal and, therefore, find that he suffered no violation of his due process rights. Further, I find that plaintiff's equal protection rights were not violated because, as was stated above, he was not similarly situated to those persons who were not within the scope of the statutes as they existed prior to the Court of Appeals' decision.
Finally, petitioner argues that proof of forcible compulsion, as well as evidence supporting a finding that he and the victim were living apart was inadequate for a conviction.
I find the testimony presented at trial was ample to prove forcible compulsion. At the time of petitioner's arrest, "forcible compulsion" was statutorily defined, under section 130.00(8) of the New York...
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Liberta v. Kelly
...as originally drafted violated the federal equal protection clause. Chief Judge Curtin rejected both contentions. Liberta v. Kelly, 657 F.Supp. 1260 (W.D.N.Y.1987). We Mario Liberta and Denise Liberta were married on March 19, 1978. Soon after the birth of their only child, Michael, Mario b......
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