Love v. Martuscello
| Decision Date | 10 June 2022 |
| Docket Number | 17-CV-6244L |
| Parties | JOHN L. LOVE, Petitioner, v. DANIEL F. MARTUSCELLO, Respondent. |
| Court | U.S. District Court — Western District of New York |
JOHN L. LOVE, Petitioner,
v.
DANIEL F. MARTUSCELLO, Respondent.
No. 17-CV-6244L
United States District Court, W.D. New York
June 10, 2022
DECISION AND ORDER
David G. Larimer, United States District Judge
INTRODUCTION
Petitioner John L. Love, a prisoner in respondent's custody, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. # 1). Love also has filed renewed motion to amend (Dkt. # 42), which includes requests for appointment of pro bono counsel and an evidentiary hearing. For the following reasons, the motion to amend is denied, the requests for appointment of counsel and an evidentiary hearing are denied, and the petition is dismissed.
BACKGROUND
I. The State Court Criminal Proceedings
A. The Indictment and Trial
A Monroe County grand jury returned an indictment charging that on November 21, 2010, Love engaged in sexual intercourse with his daughter, Z.A., by forcible compulsion in violation of N.Y. Penal Law (“P.L.”) § 130.35(1); and that on November 21, 2010, being 21 years of age or
more, he engaged in sexual intercourse with Z.A., who was less than 17 years of age, in violation of P.L. § 130.25(2).
1. The People's Case
Z.A., a high school student born in 1994, testified that Petitioner is her father but they rarely spoke and never lived together. They reconnected on social media in the fall of 2010, and saw each other a couple of times. On the evening of November 20, 2010, Petitioner picked her up so she could spend the night at the house on Briggs Street he shared with his mother, Willie Mae Love. (T. 224-28, 230-32).[1] That evening, Z.A. and her grandmother watched television for a while. After Willie Mae fell asleep, Z.A. went into Love's bedroom and played a game on his cell phone while he watched television. Eventually, Z.A. fell asleep while sitting on the floor. (T.232-34).
A bit later, Z.A. awoke to find herself in bed with a shirtless Love, who was pulling off her leggings and kissing her. She turned away and repeatedly told him to stop but he covered her mouth with his hand and told her to be quiet. He positioned his body in between Z.A.'s legs, and she felt his penis inside of her vagina. Z.A. tried to push him off but she could not. He asked if she wanted him to stop. Z.A. said yes, but he continued to penetrate her. Eventually, he stopped and got up. He said he was sorry, knelt on the floor, and started praying. (T.236-39, 269-71).
Z.A. immediately got dressed and left the house. Love followed her in his car, begging her to get in, but she refused. About five blocks away, Z.A. found a payphone and called 911, telling the 911 operator that she had just been “raped by [her] dad” at his house on Briggs Street. Throughout the seven-minute call, a recording of which was admitted into evidence as People's Exhibit 1, Z.A. sobbed hysterically, urging the 911 operator to “hurry” and send the police. She
told the operator that Love was on “on the corner, ” and screamed, “I'm not getting in the car!” (Dkt. # 13-1 at 4). Z.A. and the 911 operator both identified the 911 recording played at trial as a full and complete recording of the call and identified their own voices as the ones on the recording. (T. 239-41, 218-22).
Once police and paramedics responded, Z.A. was taken by ambulance to the hospital, where she underwent a forensic examination about two hours later by Sexual Assault Nurse Examiner Debra Crasti. (T. 239-40, 274-76, 340). The nurse testified that Z.A. told her “that while she was asleep, ” “her father tried to have sex with her, and that he kissed her, and that she had a headache, and she had pain in her vagina.” The examination took longer than usual because Z.A. was very emotional and was crying and shaking. (T. 332-33, 337, 340-51).
After the victim's medical records were admitted into evidence, Nurse Crasti testified about the indicators of physical trauma she observed when she conducted a pelvic examination of the victim. In her contemporaneous notes, Nurse Crasti recorded injuries that included vaginal irritation and a torn hymen. Additionally, she recalled seeing that Z.A.'s posterior fourchette had a tear but did not mark it on her notes at the time. During her direct examination, Nurse Crasti marked the diagram of Z.A.'s genital area with the injuries she observed, including the torn posterior fourchette. On cross-examination, Nurse Crasti explained that she had made a “mental note” of the tear in the posterior fourchette at the time of the examination but had not marked in her notes at the time. Based on her recollection at trial, she marked the torn posterior fourchette on the diagram in court. (T. 354-55). Nurse Crasti also documented bleeding in Z.A.'s cervix and reddening of her vagina, labia majora, clitoris, labia minora, anal folds, and urethra. The redness was not a normal finding but was consistent with trauma or nonaccidental injury. Nurse Crasti testified that the tears in Z.A.'s hymen and posterior fourchette and the bleeding in her cervix were
consistent with recent, forcible penetration of her vagina. The types of injuries observed on Z.A. would likely have healed within a day. (See T. 347-51, 354-55, SR. 154, 202).
Meanwhile, as part of his investigation, Rochester Police Department Officer Adam Johnston went to 33 Briggs Street, where Love answered the door. When asked if he knew why the police were there, Love responded, “Because I inappropriately touched my daughter.” Officer Johnston then drove Love to the police station where he completed a prisoner data form for Love indicating that Love had a muscular build, was about 5'3” tall, and weighed about 190 pounds. (T. 277-82).
After being issued Miranda warnings and waiving his rights, Love gave oral and written statements to Rochester Police Department Investigator Mario Correia. When asked why he thought he was at the police station, Love told Investigator Correia, “I guess I touched her, or I was told I touched her inappropriately.” In his oral and written statements, Love said that he had been out drinking with friends that evening and that when he got home, Z.A. had fallen asleep in his bedroom. Love claimed that he also fell asleep but was later woken up by Z.A. crying. Love said that when he asked Z.A. what was wrong, she told him not to touch her anymore but would not explain further. According to Love, he told Z.A. that if he touched her inappropriately, he was sorry. Love said that though he had been drinking, he was lucid and knew he did not have sex with his daughter. (T. 300-08, People's Exhibit 3, SR. 41-43).
2. The Defense Case
The defense called Willie Mae, who testified that she lived with her son, did not work, and was supported financially by Love. Willie Mae claimed that Love had gone out for most of the evening with some friends while she and Z.A. spent the evening watching the television shows “Cops” and “America's Most Wanted.” Z.A. was wearing leggings and a tank top. According to
Willie Mae, she eventually got annoyed with the noise of the video game Z.A. was playing on her phone and told her to go to a different room.
Love later woke Willie Mae and asked her to go look for Z.A. When she caught up to Z.A. at the payphone on Chili Avenue. Z.A. was wearing a different outfit-pink hoody, pink jeans, and sneakers. Willie Mae tried to coax Z.A. into her car, but Z.A. refused. Both Z.A. and Willie Mae were crying. Willie Mae stayed with Z.A. until the police arrived. (T. 371-74, 383-85).
3. The Verdict and Sentence
The jury returned a guilty verdict on both counts of the indictment. (T. 471). The trial court imposed an aggregate determinate term of fifteen years in prison to be followed by five years of post-release supervision. (S. 11). Love claimed that Z.A. had let someone into the house who actually committed the rape. (S. 8.)
B. Direct Appeal
Represented by new counsel on appeal, Love argued that (1) the verdict was against the weight of the credible evidence; (2) the trial court erred in admitting the 911 call recording; and (3) the prosecutor made remarks during opening and closing arguments that improperly shifted the burden of proof and vouched for Z.A.'s credibility. (SR. 1-30). The conviction was affirmed on direct appeal. People v. Love, 134 A.D.3d 1569, 1570 (4th Dept. 2015), leave denied, 27 N.Y.3d 967 (2016); (SR. 178-79).
C. The Motions to Vacate
On August 29, 2014, while his direct appeal was still pending, Petitioner filed a pro se motion to vacate the conviction pursuant to New York Criminal Procedure Law (“C.P.L.”) § 440.10, arguing that trial counsel was ineffective on several grounds. On the advice of appellate counsel, Love withdrew the § 440 motion. (SR. 205). After his direct appeal was completed, he
resubmitted his C.P.L. § 440.10 motion (SR. 206-17), incorporating his previous motion's arguments. (SR. 212). The Monroe County Court (Ciaccio, J.) denied the motion in a written order dated August 5, 2016. The Appellate Division denied leave to appeal on September 7, 2016.
During the pendency of this habeas proceeding, Love filed another pro se C.P.L. § 440.10 motion on September 21, 2020, asserting that he is actually innocent; that the prosecutor forged documents and tampered with evidence and suborned perjury from a police witness; and trial counsel committed a host of errors. (SSR. 1-57).[2] The Monroe County Court (Dollinger, J.) denied the motion on April 9, 2021. (SSR. 73-77). The Appellate Division denied leave to appeal. (SSR. 185).
II. The Federal Habeas Proceeding
A. The Original Petition
The petition raised the following for grounds for habeas relief: (1) the verdict was against the weight of the credible evidence; (2) the trial court erroneously admitted the recording of the 911 call; (3) the prosecutor committed misconduct during opening and closing arguments; and (4) trial counsel was...
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