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LIBERTA v. KELLY

No. 185, Docket 87-2199.

839 F.2d 77 (1988)

Mario R. LIBERTA, Petitioner-Appellant, v. Walter R. KELLY, Superintendent, Attica Correctional Facility, Respondent-Appellee.

United States Court of Appeals, Second Circuit.

Decided February 9, 1988.

Attorney(s) appearing for the Case

R. Nils Olsen, Jr., Buffalo, N.Y., for petitioner-appellant.

Jo W. Faber, Asst. Dist. Atty. for Erie County, Buffalo, N.Y. (Richard J. Arcara, Dist. Atty. for Erie County, Buffalo, N.Y., John J. DeFranks, Asst. Dist. Atty., of counsel), for respondent-appellee.

Before CARDAMONE, WINTER and MINER, Circuit Judges.

WINTER, Circuit Judge:

A jury in the Supreme Court of New York for Erie County convicted Mario R. Liberta of forcibly raping and sodomizing his estranged wife in violation of N.Y. Penal Law §§ 130.35(1) and 130.50(1) (McKinney 1987). The rape statute, N.Y. Penal Law § 130.35, provided that only men could be convicted of rape. In addition, although both the rape and sodomy statutes exempted from criminal liability individuals committing forcible sexual...

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