Mario R. Liberta v. Walter R. Kelly, Superintendent, Attica Correctional Facility

The district court denied petitioner’s writ of habeas corpus. I vote to affirm that denial on the following grounds. The New York Court of Appeals held that the marital exemption to the rape and sodomy statutes and the gender-specificity of the rape statute each violates both the federal and state equal protection clauses. That court’s remedy for what it held to be unconstitutionally underinclusive statutes was to broaden the scope of the statute. Affirmance of Liberta’s conviction, the New York court continued, under the newly expanded statute does not run afoul of *84defendant's due process…