Olivares v. Ercole

• Decision Date: 27 September 2013
• Docket Number: Case No. 09–CV–4091 (KMK)(GAY).
• Citation: 975 F.Supp.2d 345
• Parties: Gabriel OLIVARES, Petitioner, v. Robert ERCOLE, Respondent.
• Court: U.S. District Court — Southern District of New York

975 F.Supp.2d 345

Gabriel OLIVARES, Petitioner,

v.Robert ERCOLE, Respondent.

Case No. 09–CV–4091 (KMK)(GAY).

United States District Court,

S.D. New York.

Sept. 27, 2013.

Gabriel Olivares, Elmira, NY, pro se.

ORDER ADOPTING REPORT & RECOMMENDATION

KENNETH M. KARAS, District Judge:

Petitioner Gabriel Olivares was convicted in Orange County Court in the State of New York, following a jury trial, of one count each of rape in the first degree, sodomy in the first degree, and intimidating a victim or witness in the third degree. People v. Olivares, 34 A.D.3d 602, 824 N.Y.S.2d 172, 173 (App.Div.2006). Petitioner was sentenced to 25–year determinatesentences for both the rape conviction and the sodomy conviction—with the two 25–year terms to run concurrently—and a 1–and–one–third years to 4–years indeterminate sentence on the intimidation conviction, to run consecutive to the 25–year term. (Sentencing Tr. 15.) The conviction and sentence were affirmed by the Second Department on direct appeal, see Olivares, 824 N.Y.S.2d at 173, and leave to appeal to the New York Court of Appeals was denied, see People v. Olivares, 9 N.Y.3d 879, 842 N.Y.S.2d 791, 874 N.E.2d 758 (2007) (table).

Proceeding pro se, Petitioner filed a petition for habeas corpus in this Court. The matter was referred to Magistrate Judge Yanthis, who recommended denying the Petition in full. (Dkt. No. 15.) Petitioner submitted objections to Magistrate Judge Yanthis's Report and Recommendation (“R & R”); the objections consists entirely of a plea to this Court that he is innocent of the crimes of which he has been convicted. The Court has considered the objections and the entire record, and, for the reasons below, concludes that the R & R should be adopted and the Petition should be denied.

I. Background

A. Facts

Petitioner's rape convictions arise from events that took place on June 12, 2003. (Resp. Mem. at 3.) That afternoon, Petitioner, then 27 years-old, was drinking alcohol with a male roommate of his named Magdalino Leiva, when Maria Stocco, one of their two female roommates, arrived home. ( Id.) Their fourth roommate, Marta Posada—the eventual rape victim—was the last to arrive home that day. ( Id.) Posada was between 55 and 57 years-old at the time. ( Id. at 305.)

According to Stocco's testimony, at around 6:00 pm, Petitioner started to call for Posada in a “harsh and demanding voice.” (Trial Tr. 286.) Petitioner began shouting at Posada while she was in the bathroom, and then, when Posada came out, Petitioner grabbed her by the arm. ( Id. at 287.) Posada escaped into her bedroom and then her bathroom, but Petitioner went into the bathroom and pulled her out into the apartment while Petitioner hit her. ( Id. at 290.) Posada was wearing nothing but a bathrobe. ( Id.)

Petitioner then dragged Posada around the apartment, threw her under the shower, splashed water on her face, until—eventually—he threw Posada, now naked, onto the bed in his bedroom. ( Id. at 290–92.) Stocco testified that she witnessed much of this: although Petitioner had locked Stocco in her own bedroom for a short time, he let Stocco out, and Stocco was in Petitioner's bedroom when she saw Petitioner, now also naked, throw himself on top of Posada on his bed. ( Id. at 293.) Petitioner forcibly had vaginal sex with Posada, and then he threw Posada onto her stomach and forcibly had anal sex with her. ( Id.) Stocco heard Posada scream “Please don't do it. Please don't do it,” just before Petitioner began sodomizing Posada. ( Id. at 294.)

Posada emerged from this, in Stocco's description, “unconscious, crying, but not realizing what had happened to her.” ( Id. at 295.) But Petitioner was not finished with his violent attack. Rather, he again took Posada into his bedroom, immobilized her on the bed, and forced her to have vaginal sex with him. ( Id. at 296.) Finally, Petitioner left the room to have a drink with the male roommate and “laugh[ ] for what he had done to” Posada. ( Id. at 297.)

Posada also testified, and her testimony is similar except that Posada did not recall some of the specifics because she testified that she became unconscious once Petitioner climbed on top of her and began penetratingher for the first time. ( Id. at 379.) After the beginning of that first attack, she next remembered waking up in his bed, and seeing Stocco in the room. ( Id. at 380.) She next remembers being forced into Petitioner's bedroom to be raped again. ( Id. at 381.) Posada testified that she “slightly” remembered the final act of rape, with Petitioner on top of her, asphyxiating her and beating her up. ( Id. at 381.)

In the immediate aftermath of the attack, neither Posada nor Stocco went to a hospital or the police. Both testified this was out of “fear,” because they were afraid of additional violence from Petitioner.¹ ( Id. at 298 (Stocco); 382 (Posada).) But soon after the attack, both Posada and Stocco moved out of the apartment. ( Id. at 299 (Stocco); 384 (Posada).)

In September 2003, approximately three months later, Petitioner went to Stocco's apartment, where he violently attacked her. ( Id. at 301.) He grabbed her neck, pushed her, told her he would kill her, and lit her hair on fire until she allowed him into the apartment. ( Id. at 301–02.) According to Stocco, he told her that he “would let go [of her], but that [the violence] would not end there if [Stocco] didn't stop speaking about what had happened with [Posada].” ( Id. at 302.) After witnessing this attack, the owners of the apartment in which Stocco was staying took Stocco to the police station, where she reported the events of June 12, 2003 and after. ( Id. at 303.) Posada then also spoke to the police in early September 2003, and, when she went to the police, she saw that Stocco was “red, and her hair was burned.” ( Id. at 385.)

Several other witnesses corroborated various aspects of the story that Stocco and Posada told. Most notably, the husband and wife who employed Posada testified that during the second week of June 2003, Posada came to work “frightened, distraught, crying,” and she had visible bruising. ( Id. at 407.) The family then began receiving late night phone calls from a Spanish speaker who continued to ask for Posada and who identified himself as “Gabriel.” ( Id. at 413.) A taxi driver who regularly drove Posada to work also testified that she saw “marks of beatings” on Posada's arms and face around June 2003, and also that Posada seemed afraid and told the driver that Posada had been beaten up. ( Id. at 418–20.) The prosecution did not introduce any forensic evidence of the rape, and there was no photographic evidence of Posada's injuries.

The defense told a different story. Petitioner testified that, on June 12th, 2003, Posada was “having an attack,” and Petitioner became “a little upset so [he] smacked—[he] slapped [Posada] in the face twice so she should calm down a little.” ( Id. at 486.) He then put her in the shower to “try to fix” her supposed “drunkenness.” ( Id.) He testified that he never raped her nor had consensual sex with her that night. ( Id.) Petitioner also testified that he and Posada had been in a romantic relationship and had slept together before June 12. ( Id.)

Regarding the later beating and intimidation of Stocco in September 2003, Petitioner testified that he did have an encounter with Stocco that day at her apartment. ( Id. at 492.) But, in Petitioner's version, the two had a discussion where Petitioner attempted to “clear up a situation,” which, according to Petitioner, related to Stocco's calling Posada's family in Colombia and telling them that Petitioner had beaten Posada and “[a] whole bunch of things.” ( Id. at 492.) Petitioner stated that he then “stood up and grabbed [Stocco] by the neck,” but he testified that he did so “[l]ightly, practically”; in other words, he “wasn't squeezing.” ( Id.) Petitioner testified that he did tell Stocco not to get Petitioner in trouble, but he contended that he never said that Stocco should not get the police involved. ( Id.)

Several other witnesses also testified for the defense. Leiva, the male roommate, testified that he saw Petitioner smack Posada on the face and Petitioner holding her limp body, but he did not see Petitioner actually rape her. ( Id. at 436.) He also testified that Petitioner and Posada had occasionally slept together and that, after June 12, 2003, Leiva did not see any bruises on Posada's body. ( Id. at 431–38.) Three additional witnesses who had encountered the two before June 12, 2003 and who were friends with Petitioner testified that they understood Petitioner and Posada to have been romantically involved before the night of the rape. ( Id. at 439–62.)

B. Prior Proceedings

After deliberating for more than a day, the jury convicted Petitioner of the above mentioned counts. ( Id. at 634–35.) Petitioner was sentenced to 25–year determinate sentences for the rape conviction and the sodomy conviction—with the two 25–year terms to run concurrently—and a 1–and–one–third years to 4–years indeterminate sentence on the intimidation conviction, to run concurrent to the 25–year term.² (Sentencing Tr. 15.) At sentencing, Petitioner did not say anything to the court, and his lawyer stated that Petitioner maintained his innocence. ( Id. at 5–8.) Knowing an appeal would be coming, the trial court stated that he found the testimony of Stocco and Posada “absolutely totally believable.” ( Id. at 12.) The judge continued:

I want the Appellate Division to know I'm saying this, because they're only reading a record. I sat here and watched these two women testify.... The record should be real clear, maybe these women didn't come forth because I don't know that they were legally in this country.... And then, I mean, I believe when, in fact, there was a threat again that came up, the record is real clear these women left that apartment within a few days of this incident and tried to avoid all contact with this defendant....