Bryant v. Thomas

Filing 32

OPINION AND ORDER: Petitioner's actual innocence claim is not barred by the applicable statute of limitations. A constitutional claim of ineffective assistance of counsel has been established. A writ of habeas corpus will issue. Respondent is di rected to release Petitioner within 45 days of the date of this opinion, unless the state declares its intention, within those 45 days, to retry Petitioner on the charges against him.The Clerk of Court is respectfully requested to close this case, and as further set forth in this order. (Signed by Judge Robert W. Sweet on 8/3/2017) (ap)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

-------------------------------------x
DAVID BRYANT,
Petitioner,
-against-

16 Civ. 1330
OPINION AND
ORDER

JUSTIN THOMAS, SUPERINTENDENT,
MARCY CORRECTIONAL FACILITY,
Respondent.

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A P P E A R A N C E S:

I

I

ii
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II'

1

Attorneys for Petitioner
W. JAMES COUSINS, P.C.
3 Strawberry Ridge Road
Ridgefield, CT 06877
By:
W. James Cousins, Esq.
PAUL CASTELEIRO, ESQ.
200 Washington Street, 5th Floor
Hoboken, NJ 07030
By: Paul Casteleiro

Attorney for Respondent
THE BRONX DISTRICT ATTORNEY'S OFFICE
198 East 161st Street
Bronx, NY 10451
By:
Noah J. Chamoy, Esq.

I

Sweet, D.J.

I

Petitioner David Bryant ("Bryant" or the "Petitioner") has
petitioned for a writ of habeas corpus seeking to vaca te his
October 25, 1976, criminal conviction (the "Petiti on ," Dkt. 1).
The Petition raises issues concerning the statute of limitati on
bars set forth in the Antiterrorism and Effective Death Penalty
Act of 1996, 28 U.S.C.

§

2244

("AEDPA"), the requirements of a

claim of actual innocence, and the establishment of a
constitutional claim of ineffective counsel in v i olation of the
Sixth Amendment. The difficulties presented to this Court by
these always significant and sensitive issues are heightened by
the chronology , the Petitioner's confession at the time of his
arrest, and the knowledge today of potentially exculpatory
serological evidence on which Petitioner now relies.

For the reasons set forth below, it is concluded that
Petitioner is entitled to the relief he seeks.

1

Prior Proceedings

a. Pre - Trial Proceedings

On or about April 23 , 1975 , Petitioner was indicted in
Bronx County , New York , of three counts of murder in the second
degree, two counts of rape in the first degree, two counts of
sodomy in the first degree , sexual abuse in the first degree ,
and criminal possession of a weapon in the fourth degree .

(See

Declaration of Noah J . Chamoy dated May 23, 2016 ("Chamoy
Deel . "), Ex . 1 , Dkt. 10 . )

On February 4 and 5 , 1976 , a pre - trial hearing pursuant to
People v. Huntley , 15 N. Y.2d 72 (1965) , was conducted before the
Bronx County Supreme Court with regard to whether to suppress
Petitioner ' s confessions to law enforcement. On June 2, 1976 ,
the court , at Petitioner ' s request, reopened the hearing for
additional testimony in light of People v . Dunaway , 38 N. Y. 2 d
812 (1975). On June 25 , 1976 , the court denied Petitioner's
motion to suppress .

(See Chamoy Deel ., Ex. 2 . )

2

b. Trial Proceedings

Petitioner's trial took p la ce from July 21 to August 2 ,
1976.

(A . 457-1184 . 1 ) Evidence presented at trial by the

prosecution and Petitioner included the following testimony.

John Robinson ("Robinson " ) testified that he was with
Petitioner on March 28, 1975, starting at around 1:00 p.m., when
they had played basketball. Afterward, Robinson stated they had
gone to pick up some bricks to bring to Robinson's house.
Robinson estimated he was with the Petitioner for about two
hours that afternoon. Robinson then stated he saw Petitioner
again at about 6:00 p.m., walking alone across 169th Street and
Wassing Avenue , though they did not talk at that time. After
that, Robinson did not see Petitioner the rest of the evening.
(See A.515-16 . ) According to Robinson , the last time he saw
Petitioner, Petitioner was wearing the same clothes he had had
worn while playing basketball, light color pants and a
sweatshirt with writing on it.

(See A.519.)

Cita tions to "A." and then a page number refer to the
Appendix compiled by the Respondent during the appeal of
Petitioner's New York State 440.10 motion and submitted by
Respondent for the instant petition.
1

3

John Friedman ("Friedman") testified that that same day,
between 4 : 00 and 5:00 p . m. on 166th Street and Findley Avenue ,
he saw Petitioner. Friedman stated that he spoke to Petitioner
for "about 20 minutes." (A . 505-06 , A. 508.) According to
Friedman, while speaking to Petitioner , Friedman observed that
Petitioner had a knife in a leather holster on his belt.

(See

A.505-06, A . 508-11, A . 513-14.)

Ricky Frazier ("Frazier"), a friend of Petitioner's,
testified he saw Petitioner and Friedman together on 167th
Street and Findley Avenue around 3:30 p.m. but that the two were
arguing. Frazier stated he had to separate them by grabbing
Petitioner around the waist; Frazier noted that he did not see
or, while grabbing Petitioner, feel a knife on Petitioner's belt
at that time.

(See A . 520-21.)

Frazier testified that, after separating Friedman and
Petitioner, Petitioner and he went to Frazier's girlfriend's
house. Petitioner remained there until around 4:00 or 4:15 p.m.
and then left.

(See A. 520-21.) According to Frazier , Petitioner

was wearing white pants, a sweatshirt with writing on it, a gray
coat, and sneakers. Frazier said he did not observe Petitioner
in possession of a knife.

(See A.521-22, A.528 , A . 849 . )

4

Billy Tylor ("Tylor") , a then-ten-year-old neighbor of
Petitioner 's, testified that he saw Petitioner twice on March
28 . 2 First, sometime prior to dinner, Tylor saw Petitioner ask
Karen Smith ("Smith") for some candy, to which she replied no.
Second , sometime after eating dinner that evening, Tylor
returned downstairs to see Bryant and Smith in front of the
building .

(See A.536-38.) Tylor stated that Petitioner was

wearing white pants and a grayish sweatshirt. At some point
thereafter , Tylor saw Smith go across the street to a corner
store and, at some point after that, saw Petit i oner go around
the corner as well. After waiting for some time, during which
time Smith did not return , Tylor went back inside to his
apartment.

(See A. 539-41.)

At about 7 : 00 p.m. that evening , Smith's mother, Christine
Smith ("C. Smith"), called home from work. C. Smith 's son
informed her that Smith was not home. At approximately 10:10
p.m., upon returning home from work , C . Smith discovered that
C~

her daughter was still not home.

2

Smith called a neighbor and

At trial the last name was spelled "Tylor," though in
affidavits submitted since, the name has been spelled "Tyler."
(See Charney Deel., Ex. 27; Petition, Ex. 4 at 2 n.2.) Gi ven that
the parties continue to spell the name Tylor, for consistency
and the avoidance of confusion , Tylor will continue to be used .
5

had her sons go search for Smith. Still unable to locate Smith
by around midnight , C . Smith reported that Smith was missing to
the police.

(See A.480-82 . )

At around 11 p.m., Michelle Lapsley ("Lapsley") ,
Petitioner's ex-girlfriend, testified that she spoke with
Petitioner. Petitioner and Lapsley spoke for about fifteen
minutes, during which time Petitioner sounded nervous and told
Lapsley that he "did something" with a girl, but did not
elaborate further.

(A. 645 . )

At approximately 1:45 a .m. on the morning of March 29 ,
after l earning of Smith's disappearance, Police Officer John
Robinson ("Robinson") went towards the roof at 1285 Washington
Avenue and stopped at the stair landing of the sixteenth floor.
Robins o n testified that the floor was dark and the lightbulb in
the fixture on the l anding was loose; when tightened, the light
still did not work. As Robinson approached the top of the
landing, he observed Smith 's body on the landing, at which point
she was wearing only socks and panties. A pair of sneakers,
several articles of clothing, a white blood-stained garment, and
a "Nestles $ 10 0 ,00 0 Bar" wrapper were also found near the body.
Blood was on the wall of the landing, extending three or four

6

feet high .

(See A. 491 - 96, A.499 - 501 , A.663 , A . 666-67 , A . 815 - 16.)

Police officers testified that tests of the area also found
blood on the stair ' s step landing . The landing wall was not
tested for the presence of blood but was dusted for
fingerprints , as was the landing door ; partial prints were
obtained from the wall .

(See A. 662 - 63 . ) The partial prints did

not have enough characteristics to make an identification .

(See

A.670 - 72.)

Dr. Josette Montas (" Montas") performed Smith ' s autopsy on
March 29 , 1975 . Montas testified that Smith was stabbed 10
times. Some of the wounds were defensive in nature and located
along Smith's left arm; two wounds were inflicted on Smith ' s
neck , one was on the back of Smith ' s thigh, and four were into
Smith ' s chest . One of the chest wounds penetrated Smith ' s chest
cavity and pierced her heart.

(See A.737-40, A.746-47 , A. 797-

99.) Smith ' s body had " a few [four] scratches we call abrasions
of the skin .

over the back measur i ng each a half inch . "

(A.741 . ) Montas stated that all of the stab wounds contributed
to Smith ' s death , but the one wound to the right side of the
chest "went deeper in the lung and heart would be a good
contributing factor . "

(A . 740 . ) Montas also testified that Smith

had "fresh" lacerations of her rectum and vagina , which Montas

7

believed were consistent with being caused by the insertion of a
penis .

(See A . 741 - 43.)

Police Officer Richard Clark ("Clark" ), whose police patrol
beat included the housing complex in which Petitioner lived,
testified that , sometime on March 29 after Smith ' s body had been
found , Clark spoke with Detective Peter Chapman ("Chapman") , who
had arrived at the crime scene around 3 :45 a.m .. Clark told
Chapman that he had, at times in the past , seen Petitioner on
the same steps where Smith ' s body had been found.

(See A. 806 - 11 ,

A. 817 . )

Denise Friedman ("D. Friedman"), Friedman's then - sixteen year - old daughter and Petitioner ' s then-girlfriend, testified
that she spoke with Petitioner twice over those days . The first
time was the evening of March 28 sometime between 7 and 7 : 30
p.m. , when Petitioner told her that he was going out.

(A . 888 . )

The second time was on March 29 around 7 a.m ., when she briefly
called Petitioner after having breakfast. During that
conversation , Petitioner told D. Friedman that he just did
something to a girl , although Petitioner did not elaborate and
D. Friedman did not inquire further.

8

(See A . 886-88 . )

As to D. Friedman ' s second conversation , Willie Craig
("Craig") , Petitioner's stepfather testified differently . Craig
testified that there were no phone calls at Petitioner ' s
apartment the morning of March 29, a fact he stated he would
have known because the only phone was kept in his bedroom and
there were no line extensions .

(See A. 969-71.)

Around 8 : 30 a . m. on March 29, after speaking with Clark,
Chapman and a few other police officers went to Petitioner's
apartment. Upon arriving, the police found Petitioner in his
underwear and a tee - shirt; the officers requested that
Petitioner get dressed in the same clothes he had worn the
evening before, at which point Petitioner put on a gray coat , a
gray sweatshirt with "Lehman College " written on it, white
pants, and sneakers. Police asked if Petitioner would accompany
them to the South Bronx Housing Precinct to assist in their
investigation of Smith ' s death. Petitioner agreed. The police
read Petitioner his Miranda rights and escorted him to the
precinct .

(See A.549, A.574 , A. 818-20, A.827 , A.919-20.)

Upon arriving at the precinct, Petitioner was led by
Chapman to the precinct's "Processing Room" and read his Miranda
rights again, which Petitioner waived.

9

(A.821-22.)

Petitioner

remained at the precinct over the course of the day, during
which he was first interrogated by several officers , including
Chapman , Officer Adrian Smith ("A. Smith"), and Officer Antonio
Jimenez ("Jimenez " ) .

(See A. 560; A. 821.)

Petitioner initially

and repeatedly maintained his innocence; he also denied knowing
Smith or , even after seeing a picture of her,

knowing her.

(See

A.560; A.623 - 24.) At this time, Petitioner described the events
of March 28 as follows: from around 2:30 p.m. until around 7
p.m., Petitioner was with friends; from around 7 p.m. until
around 10 p.m., Petitioner was outside by himself; and from 10
p .m. until around 2 : 30 a.m., Petitioner went home, ate a pork
chop sandwich, watched television, and went to bed.
7 4.)

(See A . 571-

3

Around 7:15 p.m. the evening of March 29 , Detective
Sergeant William Brent ("Brent" ) testified that he arrived at
Petitioner 's interrogation room. Testimony differed as to what
happened next. Petitioner testified that, at this point, Brent
and other officers described to Petitioner details of the crime ,
physically assaulted Petitioner by grabbing him, throwing him
onto the floor, and kicking him, and ultimately forcing him to

3

Police later searched trash cans around Petitioner's
building and were unable to locate any pork chop bones. (See
A . 611.)
10

confess.

(See A.921-23.) Brent testified differently, stating

that, after a discuss ion with the Petitioner about "what had
occurred " during the c rime, Brent asked Petitioner to cooperate,
at which point Brent read Petitioner his Miranda rights again,
which Petitioner waived.

(See A. 679 - 80 .)

Petitioner then confessed. Specifically, Petitioner
confessed that he saw Smith in the lobb y of their building and
that he knew her by sight, but not by name. After getting int o
the e levator together, Petitioner asked Smith if she wanted to
have sex, to which she replied she did not know. Petitioner told
Smith not to be afraid, and he led her upstairs to the landing
on the sixteenth floor .

(See A.680-81.) Ther e , Petitioner

confessed that he unscrewed the lightbulb, took off Smith's
clothes , " dropped [his] pants," and had intercourse with h er .
(A.681 . ) Petitioner stated he did not "remember" sodomizing her
and, afterward, got hot and nervous, began to "shake all over,"
and then grabbed and shook Smith.

(A . 681 - 82 .) Petitioner stated

that he then " came to" on a park bench outside with a knife.
(A . 682 . )

Assistant District Attorney Edward Haynes

("Ha ynes")

testified that he arrived at the precinct around 9 p.m. and

11

questioned Petitioner. Petitioner confessed twice more to
Haynes, with largely the same details, except Petitioner then
confessed that he recalled feeling a knife in his pocket after
having sex with Smith , that he ejaculated near but not in Smith ,
that he threw Smith against the wall after intercourse, and that
Petitioner disposed of the knife in a trash can after "coming
to" in a park sometime after his encounter with Smith .

(See

A . 837 - 38; 842 - 67 . ) While confessing to Haynes, Petitioner was
unable to describe the clothes that Smith was wearing.

(A.846.)

Petitioner also claimed he was wearing the same pants at that
time that he was wearing while he was with Smith the previous
evening ,

(A . 847), stated that he did not pull back up Smith's

underwear after intercourse,

(A . 8 66) , and denied calling D.

Robinson at any point afterward,

(A . 854 .)

Petitioner testified in his own defense . In his testimony,
Petitioner stated that on March 28, he wore white pants, a white
sweatshirt, blue sneakers, and a jacket. At trial, Petitioner's
testimony as to his activities on March 28 mirrored that which
he told Chapman , A. Smith, and Jimenez when Petitioner first
arrived at the police precinct. Petitioner testified that he did
not own a knife. He also stated he knew Smith and had thrown
glass at her about a year before, but that he was not guilty of

12

the alleged crimes and only confessed after being physically
assaulted.

(See A. 919-30 . ) Petitioner also admitted that he had

asked Frazier in a letter to provide Petitioner a false alibi
for between 7 and 9 p .m. the evening of March 28.

(See A. 935-

37 . )

The prosecution also submitted serological evidence
collected from the crime scene , which was testified to by Dr.
Alexander Wiener ("Wiener"), the prosecution ' s expert
serologist. Wiener testified that he examined Smith's vaginal
and rectal areas and did not find evidence of semen . After
examining Smith's blood- stained underwear, Wiener stated that
"there probably is human semen on this garment together with
blood ." (A . 721; see also A.718-22 . ) Wiener noted that part of
the stained underwear area "gave a strong reaction in the acid
phosphate [sic] test," which he said was "a presumptive test for
semen" and that he was able to identify the head of "at least
one" sperm cell in the sample. 4 (A.721 . ) The acid phosphatase

4

Acid phosphatase is an enzyme found in all human tissue and
is in very high levels in semen. Semen is comprised of two
parts: a liquid part , which contains acid phosphatase , and a
solid part, which contains cells . A strong, positive test for
acid phosphatase usually indicates the presence of semen, but it
is additionally necessary to identify sperm to conclusively
prove semen is present. (See A.1452 -5 3 . )
13

test i n Smith ' s vagina , mouth , and rectum came back with a weak
reaction .

(A.729 - 30 . )

Wiener testified that he had tested Smith ' s blood type and
determined she had type 0 blood . Wiener did not conduct any
tests to determine whether Smith was a secretor or a non secretor . 5 Wiener found the sample from the underwear reacted for
type 0 blood , but he was unab l e to determine whether the typing
was from the blood or semen collected on the underwear .

(See

A.722; A . 1632 . ) Wiener also tested Petitioner's gray coat for
blood and found a spot on the coat that he was "almost surely"
blood , though Wiener was unable to determine whether the blood
was from a human or, for example , from meat.

(See A.722-23 ;

A.725.) Aside from the coat blood stain, Wiener found "no stains
resembling blood " on any of Petitioner ' s clothes .

5

(A . 724 . )

A secretor is a person whose blood type , or antigens , can
be detected in her body fluids, such as semen or saliva . A nonsecretor ' s antigens cannot be detected. A body fluid can be
tested to determine if a donor is a secretor or a non-secretor .
(A . 1466 - 67; A.1631 - 32 . ) If a person is a secretor and has blood
type A, an "A" antigen is detectible; if blood type B, an "B"
antigen is detectible; if blood type 0, only an "H" antigen is
detectible. In other words , all blood types have the "H"
antigen, but blood type 0 has on l y the "H " antigen. (See A.146566.) Approximately 80% of the popu l ation are secretors and 20%
non - secretors . (See A.14 66-67 . )
14

During Wiener's cross -e xamination, Petitioner's trial
counsel , Paul Auerbach ("Auerbach " ) , asked to see the reports
Wiener referred to on direct examination. Upon receipt of the
reports, Auerbach requested "a minute" to re v iew them. Shortly
thereafter , Auerbach asked Dr. Wiener two questions with regard
to Wiener's blood typing analysis: if it was "c orrect that the
blood types are A, B and O" and, as a follow-up,

if "there [is]

a blood type called 'H'?" (A.726-27.) Auerbach otherwise
examined Wiener on Wiener's analysis of the sperm on the sample
collected, analysis on the blood sample from Petitioner 's
jacket, and analysis of the swabs taken from Smith's body.

(See

A. 7 2 5-31.)

On October 25 , 1976, Petitioner was found guilty on all
counts, though the sexual abuse and criminal possession of a
weapons charges were later dismissed by the state court.

(See

A.11 55 - 56; 1170; 118 2 . ) Petitioner was sentenced to three
indeterminate terms of imprisonment from 25 years to life for
the murder counts and four indeterminate terms of imprisonment
from 8 1/3 to 25 years on the sexual assault charges. All
sentences were to run concurrent l y except for one sentence
imposed for first-degree sodomy, which was to run consecutively
to the murder sentence.

(See A . 1170-8 3 . )

15

c. Post-Trial Proceedings

On July 10, 1979, on appeal, the New York First Department
affirmed Petitioner's conviction in a three to two decision.
People v. Bryant, 71 A.D.2d 564

(1st Dep't 1979). On August 16,

1979, the First Department granted leave to appeal to the New
York Court of Appeals,

(Chamoy Deel.

at~

11), which, on June

24, 19 80 , unanimously affirmed Petitioner's conviction and,
inter alia, upheld the lower court's finding that Petitioner's
confess i on was not involuntarily obta ined, People v. Bryant, 50
N.Y.2d 949 , 950 (1980) . On November 3 , 1980, the United States
Supreme Court denied Petitioner's petition for a writ of
certiorari . Bryant v. New York, 449 U.S. 958

(1980) .

On August 12, 2005 , Petitioner, acting pro se, filed a
Freedom of Information Law ("FOIL") request, pursuant to New
York Public Officers Law§ 84 et seq., with the Office of the
District Attorney , Bronx County ("Bronx DA"). The Bronx DA
located an incomplete appeals folder containing only
Respondent's Brief on appeal in the First Department and
Petitioner's Brief and Appendix in the Court of Appeals, both of
which Petitioner received on July 10, 2006. Petitioner filed
similar FOIL requests with the New York City Police Department

16

("NYPD") and, on May 31, 2017 , filed a c ivil action seeking an
order directing the NYPD to provide Petitioner with access to
records pertaining to the Smith investigation. (See Chamoy Deel.,
Ex. 6; id.

at~~

16-17.)

In July 2008, Petitioner and the NYPD entered into a
Stipulation of Settlement, providing Petitioner with certain
paperwork from the NYPD file,

including several photographs, a

one-page request for Laboratory Examination dated April 1, 1975,
and a one-page memorandum dated July 2 3, 197 6.
at~

(See Chamoy Deel.

18.) Around this time, Petitioner also received a copy of

his pretrial hearing and trial transcripts.

(See id.

~

at 19.)

Around February 2009, Petitioner's current counsel
contacted the Bronx DA and requested assistance in locating
certain serological evidence relating to Petitioner's case.
Multiple request were made to the New York Office of Chief
Medical Examiner ("OCME") and the NYPD. At that time, both
offices were unable to locate property associated with
Petitioner's case.

(See Chamoy Deel. at

~

2 0. )

Around June 2010, Petitioner's counsel requested that the
Bronx DA produce Petitioner so he could have saliva samples

17

analyzed for blood

typing and secretor status comparison. In

July 2010, an independent laboratory conducted ABO blood typing
and secretor status testing of Petitioner's sample and provided
its results both to the Petitioner and Bronx DA.
Deel.

at~

(See Chamoy

21 . ) Petitioner was determined t o have a B blood type

and to be a secretor.

(Chamoy Deel., Ex. 8 at Ex.

6. )

On April 12, 2011, Petitioner moved in Bronx County Supreme
Court pursuant to N.Y. Criminal Procedure Law ("NYCPL")
§

440.10(1) (h) to vacate his judgment of conviction on the

grounds that (1) the recently-obtained blood-typing evidence
establishes his actual innocence and (2) he received the
ineffective assistance of trial counsel due to counsel's alleged
failure in 1975 to investigate and determine Petitioner's blood
type and secretor status and to consult with a serologist. In a
supplemental motion, dated October 3, 2011, Petitioner
maintained, as he had on direct appeal, that any statements
obtained from him following his arrest were coerced and false.
(See Chamoy Deel.

at~

22.)

On August 13 and 14, 2012, a post-conviction Section
440.10(1) (h) hearing was ordered concerning the serology
evidence and held at the Bronx County Supreme Court. Petitioner

18

called one expert witness, Dr. Robert Shaler ("Shaler"), a
retired Director of the Forensic Biology Laboratory at OCME.
Respondent called one expert witness, Marie Samples
the Assistant Director at the same OCME lab.
at~

( "Samples"),

(See Chamoy Deel.

23; A.1431-671.) After reviewing Wiener's bench notes 6 and

testimony, Shaler testified that the finding of a sperm head and
the strong reaction to acid phosphatase in Smith's underwear
suggested there was a significant amount of semen present to
type the blood type of the semen donor; because of Smith's young
age and the unlikelihood of significant vaginal secretions in
combination with the high probability of her being a secretor,
Shaler concluded the serological evidence excludes Petitioner.
(See A.1651-54.) Samples rejected the assumptions that Smith was
a secretor and that there was enough antigen in the fluid
analyzed to determine the blood type of the semen donor; Samples
conc luded that the new serological evidence was inconclusive and
had no weight.

(See A.1566-71, A.1615.)

On December 17, 2012, the Bronx County Supreme Co urt issued
an interim decision that ordered the hearing reopened to hear
from Petitioner's trial counsel, Auerbach, to determine whether

6

Bench notes are "contemporaneous markings of a laboratory
technician indicating the results that are obtained dur ing
testing." (A.1448.)
19

counsel's failure to determine Petitioner 's blood type and
secretor status, consult with a serologist, and adequately
prepare to meet the People's serological evidence constituted
ineffective assistance of counsel.

(See Chamoy Deel., Ex. 20 .)

On January 10, 2013 , the reopened Section 440.10 hearing was
conducted , and Auerbach was examined by counsel.

(See A. 173 7-

71.) At the hearing, Auerbach could not recall anything about
Petitioner's trial from memory or the number of homicide cases
he had conducted. After reading the trial transcript, Auerbach
stated that there was no strategic reasons for not having
Petitioner's blood type determined or for his decision not to
consult with a serologist.

(See A.1748, 1750, 1752-53, 1755.)

Auerbach testified that serology was not on his "radar" at the
time .

(A. 1752 . )

On April 11, 2013 , the Bronx County Supreme Court granted
Petitioner's Section 440.10 motion to vacate the judgment of
conviction upon a finding of ineffective assistance of trial
counse l. People v. Bryant, 41 Misc.3d 554

(Sup. Ct. Bx. 20 1 3) .

The court stated that, "In light of finding that trial counsel
was ineffective, it is not necessary to decide [Petitioner's]
claim of actual innocence." Bryant, 41 Misc.3d at 571. The Bronx
DA appealed on January 15, 2014.

20

(Chamoy Deel. at ':II 28 . )

On June 19, 2014 , the New York First Department
"unanimously modified, on the law," the order granting
Petitioner's Section 440.10 motion to vacate his judgment of
conviction by denying "that portion of the motion seeking
vacatur on ineffective assistance of counsel grounds" and
"remand[ing] to determine the remaining branch of [Petitioner's]
motion" not already considered. People v . Bryant, 118 A.D.3d 576
(1st Dep't 2014).

On June 26 , 2014 , Petitioner applied for a certificate
granting leave to appeal from the New York Court of Appeals on
the grounds that he received ineffective assistance of trial
counsel .

(Chamoy Deel., Ex. 26.) On August 21, 2014 , the New

York Court of Appeals, denied Petitioner's application for leave
to appeal. People v . Bryant, 23 N.Y.3d 1060 (2014).

On September 24 , 2014 , Petitioner moved to vacate the
judgment of conviction on the grounds of actual innocence,
principally based on an affidavit from Billy Tylor which
recanted Tylor's earlier testimony, an affidavit from Dr. Saul
Kassin (" Kassin " ) , a social psychologist who Petitioner sought
to admit as an expert on police interrogation techniques, and

21

the serological evidence.

(See Chamoy Deel. at

~

32 ; see also

Petition, Ex. 4.) On Februar y 11, 2015, the Bronx County Supreme
Court denied Petitioner's motion.

(See Petition, Ex . 4.)

On March 16, 2015, Petitioner applied for leave to appeal
from that denial in the First Department , which was denied on
July 28 , 2015 . See People v. Bryant, Motion No. M-1104, 2015
N. Y. Slip Op . 80122 (U)

(1st Dep' t

2015) ;

(Chamoy Deel. at

~~

34 -

35) .

The instant petition was submitted on February 18 , 2016 ,
(Dkt. 1 ) , and was heard and marked fully submitted on February
16, 2017 .

Applicable Standard

Section 2254 of the AEDPA provides a federal remedy for
state prisoners if their continued custody is in violation of
federal law. 28 U.S.C
U.S. 560, 571 (1981)

§

2254(a); see Chandler v. Flor ida,

449

("This Court has no supervisory authority

over state courts, and, in reviewing a state court judgment, we
are confined to evaluating it in relation to the Federal
Constitution ." ). Errors of state law are not cognizable on

22

federal habeas review. Estelle v. McGuire , 502 U.S. 62 , 71-72
(1991) . Petitioners bear the burden of proving violations of
federal law by a preponderance of the evidence. See Epps v .
Poole , 687 F.3d 46, 50 (2d Cir. 2012).

A state court 's adjudication as to whether a defendant's
constitutional rights have been violated may be overturned only
if it either:
( 1) resulted in a decision that was contrary to, or
clearly
involved
an
unreasonable
application
of,
established Federal law, as determined by the Supreme
Court of the United States; or
(2)
resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.

8 U.S.C.

§

22 54(d) (1)-(2) ; see Williams v . Taylor, 529 U. S. 362 ,

375-76 (2000).

With respect to the "contrary to" clause, the writ may
issue in two circumstances : first,

if the state court decision

"applies a rule that contradicts the governing [Supreme Court]
law"; and second , if the state court decision addresses a set of
facts "materially indistinguishable" from a relevant Supreme
Court case and arrives at a result different to that reached by
the Court . Lockyer v . Andrade, 538 U.S. 63, 73 (2003)

23

(quoting

Williams, 529 U.S. at 405-06). The "clearly established Federal
law" refers to Supreme Court holdings, as opposed to the dicta,
as of the time of the relevant state court decision. See
Williams, 529 U.S. at 412. A state court decision involves an
"unreasonable application" of Supreme Court precedent when the
state court either "identifies the correct governing legal rule"
from the Supreme Court's cases but "unreasonably applies it to
the facts" of the case, or "unreasonably extends a legal
principle from [the Court's] precedent to a new context where it
should not apply or unreasonably refuses to extend that
principle to a new context where it should apply." Id. at 407.

Under the "unreasonable application" clause, "a federal
habeas court may not issue the writ simply because that court
concludes in its independent judgment that the state-court
decision applied clearly established federal law erroneously or
incorrectly." Id. at 411. "Rather, it is the habeas applicant's
burden to show that the state court applied [Supreme Court
precedent] to the facts of his case in an objectively
unreasonable manner." Woodford v. Visciotti, 537 U.S. 19, 25
(2002). Determinations of factual issues made by a state court
must be presumed correct unless the petitioner can show by clear

24

and convincing evidence that such presumption should not apply .
See 28 U.S. C . § 2254 (e) (1) .

In addition, the Supreme Court 's jurisprudence on the
"unreasonable application" clause of§ 2254(d) (1) makes " clear
that whether a state court 's decision was unreasonable must be
in light of the record the court had before i t ." Holland v .
Jackson, 542 U.S. 649 , 652

(2004) . "If a claim has been

adjudicated on the merits by a state court, a federal habeas
Petitioner must overcome the limitati on of§ 2254(d) (1 ) on the
record that was before that state court ." Cullen v. Pinholster,
563 U.S. 170, 184 (201 1 ).

The AEDPA imposes a 1-year statute of limitations on all
applications for a writ of habeas corpus brought by a person in
custody pursuant to the judgment of a state court . 28 U. S.C.
§ 2244(d) (l); Holland v . Florida, 560 U.S. 631,

634

(2010). The

one-year period of limitati on to seek a writ of habeas corpus is
the latest of :

(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the
time for seeking such review;
(B) the date on wh i ch the impediment to filing
application created by State action in violation
the Constitution or laws of the United States
25

an
of
is

removed, if the applicant was prevented from filing by
such State action;
(C)
the
date
on which
the
constitutional
right
asserted was
initially recognized by the Supreme
Court, if the right has been newly recognized by the
Supreme Court and made retroactively applicable to
cases on collateral review; or
( D) the date on which the factual predicate of the
claim
presented could have been discovered
through the exercise of due diligence.

28

u.s.c.

§

2244 (d) (1) .

The AEDPA limitations period is not jurisdicti o nal and can
be tolled equitably in appropriate cases. See Holland, 560 U.S.
at 645; Smith v . McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) .
Equitable tolling requires a petitioner to show that (1) he has
been pursuing his rights diligently and (2) some extraordinary
circumstance stood in his way and prevented timely filing.
Holland, 560 U.S. at 649. Similarly, a prisoner can ci r cumvent
the AEDPA limitations period if he or she makes "a credible
showing of actual innocence." McQuiggin v . Pe rk ins, 133 S.Ct.
19 24 , 1931 (2013).

26

Petitioner's Statute Of Limitations Under The AEDPA Has Expired

As a threshold matter , Petitioner's habeas claim must first
survive the statute of limitation as provided by the AEDPA , as
described above . Petitioner contends that his petition is timely
under Section 2244 (d) (1) (D) because he filed his claim within
one - year of discovering the "factual predicate " of his claim,
specifically the laboratory notes and serologica l testing
performed on the sample found on Smith ' s underwear .
14-15.)

(Petition at

Petitioner contends that , even with "due diligence , " he

could not have been discovered and analyzed these information
any sooner than he did in combination with the help of his
current counsel, in part because of Petitioner ' s low I.Q. level.
(See id.)

Petitioner ' s argument is unavailing . 7

Section 2244 (d) (1) (D) "resets the limitations peri od ' s
beginning date , moving it from the time when the conviction
7

The remaining prongs of Section 2244 (d) ( 1) are inapplicable
to Petitioner's case . Sections 2244 (d) (1) (B) and (C) are
inapplicable because Petitioner is not claiming that some state
action impeded him from seeking habeas relief or that his is an
issue invo lving retroactive application of a constitutional
right later recognized by the Supreme Court. Section
2244 (d) (1) (A) is inapplicable because , even though Petitioner
was convicted prior to the effective date of the AEDPA and
received a one - year grace period to file his habeas petition ,
that period expired on April 24 , 1997 . See Carey v . Saffold , 536
U.S. 214 , 217 (2002) .
27

became final . . . to the later date on which the particular
claim accrued." Ocasio v. Lee, No . 14 Civ . 6097
456468, at *3 (S.D . N. Y. Feb. 2 , 2017)

(JMF ) , 2017 WL

(citation omitted). "The

determination of the date on which the factual predicate for a
habeas claim is first discoverable is a 'fact-specific' inquiry
which requires a district court to analyze the factual bases of
each claim and to determine when the facts underlying the claim
were known, or could with due diligence have been discovered. "
Rivas v . Fischer , 687 F.3d 514 , 534

(2d Cir . 2012) . To determine

if facts could have been discovered through the exercise of due
diligence , a district court needs to evaluate "when a duly
diligent person in [the] petitioner's circumstances would have
discovered" those facts. Wims v. United States , 225 F.3d 186,
190 (2d Cir . 2000) . Evidence is not newly discovered simply
because a petitioner did not possess it until recently; if
evidence could have been obtained earlier , "the date when the
evidence was actually obtained has no effect on the AEDPA
limitations period ." Duamutef v . Mazzuca , No . 01 Civ. 2553 (WHP)
(GWG), 2002 WL 413812 , at *9 (S.D.N.Y. Mar. 15, 2002)
Sorce v. Artuz , 73 F. Supp . 2d 292 , 298

(citing

(E . D. N.Y. 1999)).

Petitioner filed state post - collateral relief seeking to
vacate his judgment on April 8 , 2011, which became final when

28

his leave to appeal was denied on July 28 , 2015.
~~

(Chamoy Deel.

22 , 35 . ) Petitioner filed his habeas claim on February 28 ,

2016 .

(See Petition at 16.) Assuming the underlying state

collateral action was proper, such action would toll
Petitioner's limitations period. See 28 U.S.C.

§

2244(d) (2) . The

question presented here is whether, with due diligence,
Petitioner could have discovered the serological evidence upon
which his petition relies one year prior to his instant habeas
petition, which was filed on February 18, 2016 . Working
backwards timewise and excluding tolled time places the cutoff
date at November 19, 2010 .

As described above, Petitioner 's trial occurred in 1976,
during which the prosecution presented serological evidence
against Petitioner, including laboratory reports upon which
Petitioner relies today; it was testified to by one of the
prosecution's witnesses, who was also cross - examined by
Petitioner's counsel . Wiener's final serological reports were
admitted into evidence as a trial exhibit for the prosecution.
(See A.718 - 34 . ) As such, even prior to his conviction ,
Petitioner was aware that serological evidence existed and was
relevant to his convict i on . Nevertheless, Petitioner took no
further action with regard to seeking out additional information

29

about the serology records, including his own blood type, until
July 2005, when he filed a FOIL request.

(See Chamoy Deel., Ex.

6.) That is an almost thirty-year time gap during which a
diligent defendant would have done something to investigate the
serological evidence further. Petitioner's failure to do so is
the opposite of establ ishing due diligence. See Landrum v.
Mitchell, 625 F.3d 905 , 924

(6th Cir. 2010)

(finding

petitioner's newly submitted affidavit was based on "factual
predicate" known at time petitioner's post-conviction appeal
because it attacked evidence presented at initial trial).

Even assuming Petitioner is in fact limited by a l ow I.Q.the exact limitations of which are not conclusively established
by the record 8-it is of no moment in finding Petitioner's c laim
untimely. Due diligence is an "objective test" that considers
the "conditi ons of [petitioner's] confinement." Wims, 225 F.3d
at 190-91 & n.4. It is not for a district court to consider

8

Petitioner has put forward evidence of an in-patient
evaluat i on conducted in 1975 to determine whether Petitioner was
competent to stand trial that concluded that Petitioner's full
scale I. Q. was 7 1. (See Chamoy Deel., Ex. 2 at 8 .) Respondent
notes that the same report also stated that Petitioner's
"motivat i on with respect to the tests was limited" and that
Petitioner "tried to manipulate the examiner to his own
advantage." (Id.) The state court accepted that Petitione r's
I.Q . was 71 but nevertheless still found that his confession was
voluntary and could not be suppressed. (See id. at 10, 17.)
30

subjective factors like a "petitioner's intelligence, education,
language skills, or mental stability.u Reyes v. Mance, No. 09
Civ. 2066 (CM), 2010 WL 1737806, at *6 n.5
2010)

(S.D.N.Y. Apr. 23,

(quoting Gonzalez-Ramos v. United States, No. 0 5 Civ. 3974

(LAP), 2007 WL 1288634, at *7

(S.D.N.Y. May 2, 2007)). What

matters is "when the prisoner knows

(or through diligence could

discover) the important facts, not when the prisoner recognizes
their legal significance.u Id.

(citation omitted).

As noted above, Petitioner knew that serological evidence
was collected and used by the prosecution to convict him back in
1976. Petitioner's intelligence is a non-considerable factor;
rather, what matters is the lack of demonstrated diligen c e in or
impediments to securing further information for Petitioner's use
in attacking his conviction earlier than his 2005 FOIL request.
Accordingly, under the strictures of Section 2244(d) (1) (D), that
avenue for habeas relief is closed to Petitioner.

31

Petitioner's "Actual Innocence" Claim Permits Equitable Tolling
Of His Habeas Claim

Petitioner has put forward an alternative to justify
consideration of his otherwise untimely petition: a showing of
his actual innocence. Respondent argues that Petitioner's claim
of actual innocence was already rejected by a state court and
that Petitioner has failed to show, by clear and convincing
evidence, that the state court's finding was in error pursuant
to Section 2254(e) (1). Here, however, Petitioner's argument
succeeds.

"[H]abeas corpus is, at its core, an equitable remedy."
Schlup v. Delo, 513 U.S. 298, 319 (1995). Accordingly, the
Supreme Court has held that in "appropriate cases," principles
of comity and finality "must yield to the imperative of
correcting a fundamentally unjust incarceration." Engle v.
Isaac, 456 U.S. 107, 135 (1982). As such, the Supreme Court has
recognized that an assertion of actual innocence will ex c use a
federal habeas petitioner from a procedural bar or the
expiration of the one-year statute of limitations proscribed by
28 U.S.C. §2244(d) (1) if a presented actual innocence claim i s "
'credible' and 'compelling'

. allowing a petitioner to have

his otherwise time-barred claims heard by a federal court."

32

Rivas v. Fischer, 780 F.3d 529, 545 & n.25

(2d Cir. 2015)

(citing McQuiggin, 133 S.Ct. at 1928); see also Rivas,

687 F.3d

at 541.

"For the claim to be credible[,] it must be supported with
new reliable evidence-whether it be exculpatory scientific
evidence, trustworthy eyewitness accounts or critical physical
evidence-that was not presented at trial." House v. Bell, 547
U.S. 518, 521

(2006)

(quoting Schlup, 513 U.S. at 324). Provided

a petitioner has presented "s ome new reliable evidence," the
court may proceed to the "compelling" prong of the claim, at
which point the court's analysis "is not limited to [new
reliable] evidence" but must be based on "all the evidence, o ld
and new." House, 547 U.S. at 537
omitted) ; see also Rivas,

(inte rnal quotation marks

687 F.3d at 542. For the claim to be

"compelling," it must "demonstrate that more likely than not,

in

light of the new evidence, no reasonable juror would find him
guilty beyond a reasonable doubt-or, to remove the double
negative, that more likely than not any reasonable juror would
have reasonable doubt." House, 547 U.S. at 538; see McQuiggin,
133 S.Ct. at 1933 (reiterating standard); Rivas,

687 F.3d at 518

(emp loying the same). The actual inn ocence claim allows district
courts to consider evidence beyond what was presented at the

33

petitioner's trial-in the Court's words, "all the evidence,"
without regard to whether it would necessarily be admitted under
"rules of admissibility that would govern at trial-"to assess
how reasonable jurors would react to the overall, newly
supplemented record ." Schlup, 513 U.S. at 327-28, 330 . After
considering of all the evidence, the district court must make a
"probabilistic determination about what reasonable, properly
instructed jurors would do. Id. at 329 . While demanding ,
Petitioner's burden to shown actual innocence "does not require
absolute certainty about the petitioner's guilt or innocence."
House, 547 U.S. at 538 .

Before considering whether Petitioner's actual innocence
claim meets the "more li kely than not" standard articulated by
the Supreme Court , Respondent's contention as to the weight of
the state court 's ear li er finding and rejection of Petitioner's
actual innocence claim must be addressed. As described above,
the New York Supreme Court , on remand from the New York
Appellate Division, First Department, rejected Petitioner's
actual innocence argument in the process of denying Petitioner's
motion for a full hearing to determine the merits of that claim ,
holding that Petitioner "failed to make a prima facie showing of
innocence to warrant a hearing." (Petition , Ex. 4 at 17.) The

34

state court's opinion also repeatedly noted that different
pieces of evidence presented by Petitioner did not demonstrate
"clear and convincing evidence" to support his claim of actual
innocence.

(See Petition, Ex. 4 at 14-16.) Respondent argues

this decision i s a finding of fact, entitling it to deference
under AEDPA . Petitioner argues that because the state court
stated that Petitioner needed to show actual innocence by a
"clear and convincing " standard, the in correct standard under
McQuiggin, that court 's decision should be entitled to n o
deference.

Neither position fully addresses the present issue. First,
alth o ugh the precise interplay between Sections 2254(e) (1) and
2254(d) (2) has not been clearly articulated by the Supreme
Court, the Court has indicated that "[Section] 22 54(e) (1)
'pertains on ly t o state-court determinations of factual issues,
rather than decisions
[Section] 225 4 (d) (2)

[i.e., adjudications][,]' while
' contains the unreasonable requirement and

applies to the granting o f habeas relief
Leconey, No. 10 Civ. 6397

" Ebrahim v .

(MAT) , 2012 WL 6155655 , at *20

(W.D.N.Y . Dec. 11, 20 12)

(quoting Miller-El v. Cockrell , 537

U.S. 322 , 3 41-42

(alterations in origina l ); see also

(2003))

Wood v. Allen , 558 U.S. 290 , 300 (2010)

35

(observing that the

Supreme Court has "explicitly left open the question whether
§

2254(e) (1) applies in every case presenting a challenge under

§

2254(d) (2)" but denying habeas claim because state court's

factual determination that counsel "made a strategic decision
not to pursue or present evidence" was not unreasonable under
Section 2254(d) (2)) . "AEDPA does not require [a] petitioner to
prove that a decision is objectively unreasonable by clear and
convincing evidence ." Miller-El, 537 U.S. at 341 -4 2 .

The confusion here seems to stem, in part, from overlapping
standards of actual innocence between the state court proceeding
and Petitioner's instant petition. In denying Petitioner's
motion for an actual innocence hearing, the state court
considered whether Petitioner's factual showing had met the
legal threshold under New York law to sustain a freestanding
claim of actual innocence.

(See Chamoy Deel., Ex . 4 at 11); see

also People v . Hamilton, 115 A.D.3d 12, 26-27

(2014)

(holding

that a "freestanding claim of actual innocence may be addressed
pursuant to CPL 440 .1 0(1) (h)" if a defendant can show actual
innocence by "clear and convincing" standard) . Freestanding
claims of actual innocence have not been defined at the federal
level yet; rather, as noted above, claims of actual innocence
act as gateways to permit petitioners to argue constitutional

36

violations in opposition to established claims of untimeliness.
See Hamilton, 115 A.D.3d at 21-22

("The Federal courts have not

resolved whether a prisoner may be entitled to habeas corpus
relief based upon a freestanding claim of actual innocence.")
Thus, Petitioner is incorrect in stating that the state court's
applied the wrong standard in finding that Petitioner failed to
make a prima facie showing to merit a hearing on his actual
innocence claim-that was the right standard. See, e.g., People
v. Griffin, 120 A.D.3d 1 257 , 991 N.Y.S.2d 896 (2nd Dep't 2014)
(citations omitted). However, it was the right standard for a
different question. Furthermore, it does not address the matters
of deference as stated under the AEDPA: namely, which portions
of the state court 's decision are findings of fact, and
therefore entitled to clear and convincing deference under
Section 2254(e) (1), and which are decisions, and therefore
entitled to a different level of deference under Section
2254(d) .

Upon examinati on of the state court's opinion, the
f ollowing distinctions can be drawn. First, the state court's
conclusion that Petitioner "failed to make a prima facie showing
of actual innocence to warrant a hearing" is an adjudication of
that court, and therefore does not fall under the "clear and

37

convincing " deference standard of Section 2254(e) (1). See Duncan
v. Lee, No. 12 Civ . 2909 (SAS) , 2015 WL 4103647, at *6 (S .D. N.Y.
July 7 , 2015)

(noting that state appellate court had found

petitioner's claim of actual innocence "unsupported by the
record" but still analyzing the evidence under the "more likely
than not" standard); Cordero v . Rivera,
(S.D .N.Y. 2009)

677 F. Supp. 2d 684 , 690

(noting that a state court 's finding that a

witness was "utterly incredible and unworthy of belief" was a
factual determination that deserved a presumption of correctness
rather than its decision that the testimony did not establish
innocence). By contrast , the state court observed that the New
York Court of Appeals had already sustained an earlier finding
that Petitioner voluntarily agreed to accompany the police to
the police station and that Petitioner 's confession was not the
product of coercion; these are findings of fact entitled to
deference under Section 2254 (e) (1) .

(See Petition, Ex. 4 at 15-

16; see People v. Bryant, 80 N.Y.2d 949,

950

(1980) . )

The state court made two statements that fal l outs i de
2254(e) (1) deference, however. The state court opinion stated
that Petitioner had not established by clear and convincing
evidence that "enough B-antigen was present to allow for
testing" from the underwear sample,

38

(Petition , Ex. 4 at 15), and

that Tylor's recantation was "highly questionable" and, in
combination with Petitioner's other statements from March 28 and
29 , 1975, did not amount to clear and convincing evidence to
support a claim of actual innocence,

(id. at 16-17). These two

conclusions were made in the context o f the court observing that
each did not amount to "clear and convincing evidence" in
support of Petitioner's freestanding actual innocence claim.
(See id. at 15, 17.) These are legal conclusions not entitled to
deference under Section 2254(e) (1). To the extent that such
statements could be construed as findings of fact and deserving
of deference, it would be irrele vant to the present inquiry,
because the proper burden of proof for the instant petition is
lower than the state court considered. See Addington v . Texas,
441 U.S. 418, 425

(1979)

("We probably can assume no more than

that the difference between a preponderance of the evidence and
proof beyond a reasonable doubt probably is better understood
than either of them in relati on to the intermediate standard of
clear and convincing evidence."); Duke Laborat ories v . United
States, 222 F. Supp. 400, 406 (2d Cir. 1963)

("To establish by a

preponderance of the evidence means very simply to prove that
something is more likely than not so."); United States v.
Polizzi, 545 F. Supp. 2d 270 , 278

39

(E.D.N.Y. 2008)

(noting that

"clear and convincing evidence" is "higher than 'mor e probable
than not,' but not as high as 'be yond a reasonable doubt'").

Turning to Petitioner 's actual innocence claim , Petitioner
has put forward the following new pieces of evidence, in
addition to evidence previously presented: additional
serological evidence with regard to Petitioner's blood type and
two affidavits, one submitted by Kassin and one submitted by
now -adul t Tylor.

Petitioner's new serological evidence alone is sufficient
to meet the credibility prong. As described above, at the time
of Petitioner's trial, the sample tested from Smith's underwear
had 0 type blood and only H antigen was present. When Petitioner
had his blood type tested in 2010, it was determined that he had
B type blood and was a secreter. This is the kind of
"exculpatory scientific evidence" that was not present at trial
and which amounts to "s ome new reliable evidence" upon which it
is permissible to move onto considering whether the new
evidence, when taken together with all available ev i dence , is
compe lling. Rivas , 687 F.3d at 541-42; see Ramirez v . Prelesnik,
No . 08 Civ. 424
24 , 2009)

(RJJ) , 2009 WL 465622, at *2

(W.D. Mich.

Feb.

(noting that new, exonerating DNA evidence could

40

amount to credible evidence supporting an actual inno cence
claim).

To find Petitioner's evidence "compelling," all the
evidence, old and new, when taken together, must sh ow, "more
likely than not that no reasonable juror would have convicted"
Petitioner; this is a "heavy burden," but "not so heavy as to
demand that petitioner show for certain" that he was innocent.
Garcia v. Portuondo, 334 F. Supp. 2d 446, 455 (S.D.N.Y. 2004).
Petitioner had met this burden.

Petitioner has presented new serological evidence: his
blood type. In response to this, both Petitioner and Respondent
have also presented new testimonial evidence from two different
experts, Shaler and Samples. The testimony of these doctors was
taken as part of Petitioner's post-conviction Section 440.10
hearing, already described in part above.

The two e xperts disagreed about the significance of
Petitioner's blood type. Shaler testified that, based on
Wiener's notes and testimony, there was significant semen
present on Smith's underwear to determine the bl o od type of the
semen donor. Specifically, Shaler pointed to the presence of a

41

sperm head and the strong reaction of the acid phosphatase test,
both of which Wiener had identified, as indications that semen
was present in the sample.

(See A.1459-60, A.1471-72.) Shaler

also noted that Wiener's reports from the time did not in clude
any observations of cells or bacteria corresponding to vaginal
secretion or blood, supporting the conc lusion that the acid
phosphatase reaction was only from semen.

(See A.728, A.1460-62;

A.1514.) As such, Shaler concluded that the difference between
Petitioner's blood type and the blood type found on Smith's
underwear, the evidence about which indicated only semen was
present, excluded Petitioner as the perpetrator of the crime.
(See A.1471.)

Samples disagreed with Shaler's conclusions. Samples
testified that a high acid phosphatase reading did not indicate
that there is a sufficient amount of sperm present in a sample
to evaluate the sperm's blood-typing antigen.

(See A.1571.)

In

Petitioner's case, Samples stated, only observing a single sperm
head was the "bare minimum" necessary to say that semen was
present in a sample.

(A.1572.) Sample also testified that the

absence of records indicating Wiener observed cells or bacteria
related to vaginal secretion in the sample held no weight, since
if Wiener were only looking f or sperm, he would not have

42

normally written down "everything." (A.1574, A.15 83 - 84 .)
Furthermore, Samples noted that it was unknown whether Smith was
a secretor or not, raising the question of who left the 0
antigen on the underwear sample.

(See A.1592-93.) The experts

agreed on two points, however: that only having a high acid
phosphatase reading does not necessarily indi cate th e presence
of high sperm levels,

(see A.1459, A.1570), and that if there

was sufficient seminal material present in the underwear sample
to detect antigens, Petitioner would be excluded,

(see A.1471-

72, A.15 95) .

While it is clear that the parties' experts disagree,
ultimately the question of the serological evidence turns on
whether Smith's assailant had a low sperm count or the sample
collected from Smith's underwear had insufficient semen to make
a blood type evaluation. Neither of these have been concl usi ve ly
proven by the evidence put forward by Petitioner, but neither
have they been conclusive disproven by Respondent. Moreover,
using the evidence , Samples' analysis is largely based on
assumptions as to what has not been shown, while Shaler's
analysis is based on what has been shown, and it is Respondent
who ultimately had the burden of proof at trial. The prosecution
showed no evidence that Petitioner had a l ow sperm count, and

43

Petitioner's evidence, as laid out by Shaler, is compelling
proof to support the conclusion that there was sufficient semen
to make a proper blood type evaluation, an evaluation that would
exclude Petitioner and his B blood type. While by itself such
evidence is not sufficient to find compell ing evidence of actual
innocence, it is a powerful first step towards a preponderance
showing when combined with evidence described below.

Petitioner has also put forward an affidavit by Kassin , in
which describes risk factors in police interrogations and
resultant instances of false confessions. Specifically, Kassin 's
affidavit identifies several factors that would have made
Petitioner vulnerable and likely to falsely confess to the
police , including that: Petitioner was eighteen at the time of
interrogation, a young age; Petitioner was evaluated as having
an I.Q. of 71 ; the interrogation lasted over half a day without
any identified interruptions; the interrogating officers did not
permit Petitioner to leave the interrogation room ; and
Petitioner's confession had factual errors from what the police
had determined occurred from crime scene evidence. In sum,
Kassin's affidavit observes that 25% of confessions he has
reviewed involving DNA evidence exonerations are false.
A.1277 - 84 . )

44

(See

For the purpose of an actual innocence claim , such evidence
is able to be considered , regardless of whether foundation has
been established . See Schlup, 513 U.S. at 328

(a court is "not

bound by the rules of admissibility that would govern at trial)
Kassin's observations raise questions about Petitioner 's guilt.
For example , a reasonable juror would wonder why Petitioner only
confessed when Brent arrived, and quite suddenly, even after
several hours of professing innocence. While Kassin's affidavit
does not amount to clear and convincing evidence sufficient to
reject the state court 's previous finding that Petitioner's
confession was voluntary, see 28 U.S.C.

§

2254(e) (1),

voluntariness does not equate with truthfulness, and Kassin's
affidavit raises the specter of falsity as to the content of
Petitioner's confession . Furthermore, given that the state court
on appea l

found Petitioner's guilt was "established" on the

basis of Petitioner's confession ,

(Petition , Ex. 4 at 16), to

undermine Petitioner's confession in turn undermines the
likelihood a reasonable juror would find Petitioner guilty
beyond a reasonable doubt.

Lastly, Petitioner has presented a new affidavit by Tylor
in which Tylor recants portions of his testimony from

45

Petitioner's original trial. Specifically, Tylor's affidavit
states that, unlike his original testimony, on the evening of
March 28 he and Smith were standing out his building. Petitioner
had walked by the two of them and had asked Smith for some
candy; she had declined Petitioner's request. Petitioner then
went around the corner. Smith never went around the corner to
the convenience store and Petitioner "never followed her." At
least half an hour later, Tylor and Smith went inside the
building, at which point Tylor states that Smith took the
elevator upstairs and Petitioner was not in the area.
Chamoy Deel., Ex. 27

at~~

(See

10-14.)

When evaluating witness recantations, they "must be looked
upon with the utmost suspicion." Haouari v. United States, 510
F.3d 350, 353 (2d Cir. 2007). However, a court may still
consider such testimony "in light of the substance of other
evidence, considering the potential motives to be untruthful
that the witness may possess, corroboration or the lack thereof,
internal consistency, and the inferences or assumptions that
crediting particular testimony would require." Lopez, 915 F.
Supp. 2d at 405 (quoting Castillo v. Ercole, No. 07 Civ. 11256
(LAP)

(GWG), 2009 WL 1492182, at *6 (S.D.N.Y. May 27, 2009))

46

(accepting recanted statement in consideration of actual
innocence claim) .

Tylor only recanted his testimony several decades after
Petitioner's original trial, and his justification is that he
did not know that Petitioner was still alive until reading news
about Petitioner's case in the newspaper.

(See id.

at~

4.) The

reasoning of Tylor's recent emergence is admittedly suspect, but
that does not sufficiently discredit the statements themselves;
put another way, the delay does not undermine Tylor's motivation
to be truthful on the matter today, particularly since Tylor,
now an adult, represented under oath that he was the one who
reached out to Petitioner's counsel.

(See id.

at~

5.) Tylor's

testimony, while not overwhelming persuasive, does poke a
meaningful hole in the prosecution's evidence by eliminating the
principle eyewi tness to see Petitioner and Smith together
evening of Smith's death.

Respondent notes that there is still much evidence in
support of Petitioner's guilt. In addition t o rejecting the
significance of the new serological evidence and Tyl or 's
recantation, Respondent points to Petitioner's confession, the
testimony about Petitioner's statements to Lapsley and D.

47

Friedman, the presence of blood on Petitioner's jacket, and that
Clark had knowledge of Petitioner having been caught in the past
at the location of Smith's murder with similarly-aged young
girls. Admittedly, each of these pieces of evidence, if accepted
as true, inculpates Petitioner. But much of that same evidence
is either tenuous or support countervailing arguments.
Petitioner's confession contains many significant incorrect
statements of fact,

such as what Petitioner claims he did with

Smith's body after the attack versus how the body was found by
police the following day, and bizarrely omits critical facts
about the evening of March 28, such as whether Petitioner
sodomized Smith or what Petitioner did during his "black-out"
following the attack. Testimonial evidence from Petitioner's
stepfather suggested that no phone call with D. Friedman
occurred. No blood evidence ever came close to placing
Petitioner at the bloody crime scene, a striking fact given the
evidence strongly indicated that Petitioner's clothes on March
28 were those he wore the following day, per the police's
instructions.

The combination of Petitioner's new evidence does not
amount to absolute confidence that Petitioner is innocent. But
that is not the standard Petitioner needs to meet to warrant

48

consideration of his constitutional claim. Rather, Petitioner
needs to show that, with the evidence presented; it is more
probable than not that "reasonable , properly instructed jurors"
would not believe him guilty beyond a reasonab l e doubt. Schlup,
513 U. S . at 329. Here, the serological evidence in combination
with other presented evidence establishes a credible and
compell i ng claim of actua l innocence , and faced with such it is
more likely than not that a reasonable juror would have
reasonable doubt about Petitioner's gui l t. See Letemps v . Sec ' y ,
Florida Dep ' t of Corr. , 114 F . Supp. 3d 1 216 , 1226 (M.D. Fla .
2015)

(finding "sufficient doubt" raised to support actual

innocence claim after new serolog i cal and eyewitness evidence
presented) . Petitioner's preponderance showing of reasonable
doubt established, the merits of Petitioner ' s constitut i onal
claim will be considered , even in the face of his untimely
petition. Rivas , 687 F.3d at 518.

The State Court Decision That Petitioner Received Effective
Assistance Of Counsel Was An Unreasonable Application Of
Strick1and v. Washington

Petitioner contends that he received ineffective ass i stance
of counsel in violation of the Sixth and Fourteenth Amendments
because his trial counsel failed to consult a serology expert
and to test Petitioner ' s blood type and secretor status. The New

49

York State First Department has previously found that
Petitioner's trial counsel's actions did not amount to
ineffective assistance of counsel. See People v. Bryant, 118
A.D.3d 576, 988 N.Y.S.2d 175 (1st Dep't 2014). As Petitioner
disputes the state court's application of law, Petitioner can
prevail only if he can establish that the state court's
determination was "was contrary to, or involved an unreasonable
application of" Strickland v. Washington. 28 U.S.C.
§

2254 (d) (1).

Under Strickland, a petitioner must satisfy a two-part test
to establish that his Sixth Amendment right to effective
assistance of counsel has been violated. A petitioner must show
(1) that counsel's representation fell below an objective
standard of reasonableness; and (2) that the deficient
performance of counsel prejudiced the defense. See Henry v.
Poole, 409 F.3d 48, 63

(2d Cir. 2005)

(quoting Strickland, 466

U.S. at 687-88).

For Strickland's first prong, objective reasonableness, a
court "must indulge a strong presumption that counsel's conduct
falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption

50

that, under the circumstances , the challenged action might be
considered sound trial strategy." Strickland, 466 U.S. at 689
(citation and internal quotation marks omitted); see also United
States v . Best, 219 F.3d 192, 201 (2d Cir. 2001)

("Actions or

omissions [by counsel] that might be considered sound trial
strategy do not constitute ineffective assistance."). A
strategic decision is a "conscious, reasonably informed decision
made by an attorney with an eye to benefitting his client ." Cox
v. Donnelly, 387 F.3d 193, 198 (2d Cir. 2004).

As to Strickland's second prong, prejudice, a petitioner
must demonstrate that there is a "r easonab le probability that,
but for counsel's unprofessional errors , the result of the
proceeding would have been different." Strickland, 466 U.S. at
694. To satisfy the reasonable probability test, "a defendant
need not show that counsel's deficient conduct more likely than
not altered the outcome of the case. " Henry, 409 F.3d at 63
(emphas is in original)

(c iti ng Strickland, 4 66 U.S. at 693) .

"The level of prejud i ce that [a petitioner] need demonstrate
lies between prejudice that had some conceivable effect and
prejudice that more likely than not altered the outcome in the
case ." Li ndstadt v. Keane , 239 F.3d 191, 204

(2d Cir . 2001)

(internal quotation marks omitt ed). "The result of a proceeding

51

can be rendered unreliable, and hence the proceeding itself
unfair, even if the errors of counsel cannot be shown by a
preponderance of the evidence to have determined the outcome."
Henry, 409 F.3d at 64

(emphasis in original)

(citing Strickland,

466 U.S. at 694).

The Court has noted that under Section 2254 ( d) ( 1) , "an
unreasonable applicable of federal law is different from an
incorrect application of federal law." Harrington v. Richter,
562 U.S. 86, 101 (2011)

(citation omitted)

(emphasis in

original). "A state court's determination that a claim lacks
merit precludes federal habeas relief so long as 'fairminded
jurists could disagree' on the correctness of the state court's
decision." Id.

(citing Yarborough v. Alvarado, 541 U.S. 652,

664

(2004)) .

In considering Petitioner's claim, the First Department
reviewed, amongst other things, the trial record and testimony
from Auerbach as to his approach to using of serological
evidence at the time of Petitioner's trial. The state court
concluded that trial counsel's "inability to recall his reasons
for not consulting a serologist or having [petitioner's] blood
type tested did not establish that such actions were not rooted

52

in strategic considerations." Bryant, 118 A.D.3d at 577.
Furthermore, the court reasoned that Auerbach's representation
was not constitutionally ineffective because "the serology
expert could not connect any of the physical evidence to
defendant, and counsel relied upon such testimony in arguing
defendant's innocence." Id. Both conclusions are unreasonable
under Strickland.

Looking to Strickland's first prong, the state court was
incorrect when it determined that trial counsel's actions did
not fall below objective reasonableness. Strickland, 466 U.S. at
687. First, contrary to the state court's conclusion, the facts
do not reasonably establish that Auerbach's decision were based
on strategy. Rather, Auerbach's testimony as to not consulting a
serologist is unequivocal: when asked if there was a reason he
did not order any tests, he replied, "No." (A.1750.)
Furthermore, Auerbach testified that he "never considered
retaining a serologist," (A.1752), and stated plainly that it
was not part of a "grand trial strategy." (A.1752-53.) The fact
that, when first approached about the instant matter, Auerbach
did not have an "independent recollection" of the case dating
back several decades,

(A.1755), does not detract from the

clarity of his post-reflection answers given under oath as to

53

his lack of serological strategy and the admission that using
serological evidence was not on his "radar" at the time of
Petitioner's trial.

(A.1752.) As such, Auerbach's failure to

learn about and analyze the serological evidence being put
forward by the prosecution was not part of a trial strategy.

Auerbach's failure to do so was objectively unreasonable.
Auerbach was aware that both Smith and the sample found on
Smith's underwear had tested positive for 0 blood types. He knew
that the prosecution was going to call a serological expert to
testify. In the face of this presentation, Auerbach did not know
what blood type Petitioner was and did not endeavor to determine
it, and there was no strategic reason not to do so. Had Auerbach
conducted a test to determine Petitioner's blood type and
discovered, hypothetically, that Petitioner's blood type was
type O blood and that he was a secretor, such results would not
have been admissible under New York court precedent at the time
given the O blood type's statistical commonality amongst the
population in the United States. 9 See People v. Robinson,

27

In the United States, the general population has the
following blood type distribution: 48 % of people have type 0
blood, 36 % have type A blood, 11 % have type B blood, and 5 % have
type AB blood. See AM. Ass'N OF BLOOD BANKS BLOOD FAQ,
http://www.aabb.org/tm/Pages/bloodfaq.aspx (last visited July
28, 2017). It is generally proper and within a district court's
discretion "to take judicial notice of articles and Web sites
54
9

N.Y.2d 8 64, 865, 265 N.E.2d 543, 543 (1970)

("Proof that

defendant had type 'A' blood and that the semen found in and on
the body of decedent was derived from a man with type 'A' blood
was of no probative value in the case against defendant in view
of the large proportion of the general population having blood
of this type and, therefore, should not have been admitted.")

10

Knowing that serological evidence would be presented at trial,
an objectively reasonable attorney would have, at minimum,
investigated that a line of defense that "posed no risk to
[Petitioner's] defense, but the potential benefit [of which] was
enormous." Duncan v. Ornoski, 528 F.3d 1222, 1236 (9th Cir.
published on the Internet." Patsy's Italian Restaurant, Inc. v.
Banas, 575 F. Supp. 2d 427, 443 n.18 (E.D.N.Y. 2008), aff'd, 658
F.3d 254 (2d Cir. 2011).
Respondent argues that Robinson's statement about the
admissibility of blood tests was dictum and, therefore, not
controlling authority at the time of Petitioner's trial. PostRobinson New York State decisions, including from the New York
Court of Appeals itself, indicate otherwise. See Matter of Abe
'!2:_, 56 N.Y.2d 288, 299 n.4 (1982) (citing Robinson as support
without much elaboration); People v. Macedonio, 42 N.Y.2d 944
(1977) (same); see also People v. Mountain, 66 N.Y.2d 197, 201
(1985) (overturning Robinson and referring to Robinson's
decision as a "rule"). Respondent's use of the New York Second
Department's holding in People v. Macedonio, 53 A.D.2d 809 (2d
Dep't), is unavailing, particularly in light of its later
reversal. The Court of Appeals overturned the decision of the
lower state court which had improperly affirmed the admission of
a defendant's type A blood as proof. See Macedonio, 42 N.Y.2d at
944. That a lower court's reading of a higher court's decision
that was later reversed does not indicate that the higher
court's opinion was not, and was not considered, binding
authority at the time; if anything, it indicates the opposite.
10

55

2008)

(finding Strickland violation for defense attorney's

failure to test client's blood type).

The potential benefit to Petitioner's case is, had
Petitioner's blood type been discovered not to be type 0 blood,
but rather, for example, the type B blood that Petitioner
actually is, such a fact would have severely undermined the
prosecution's case. Establishing different blood types would
have made it a "simple inference for the jury to draw (and an
easy argument for petitioner's counsel to make)" that petitioner
was not the perpetrator. Dorsey v. Kelly, No.

92 Civ. 8943

(LLS), 1997 WL 400211, at *5 (S.D.N.Y. July 16, 1997)

(granting

habeas petition for failing to get serological evidence
admitted), aff'd sub nom. Dorsey v. People, 164 F.3d 617

(2d

Cir. 1998). Given the circumstances, Auerbach's decision was not
one that a reasonable attorney would have made, and the state
court was incorrect in determining otherwise. Contra Harrington,
562 U.S. at 108 (accepting as reasonable strategy a defense
attorney's decision not to have his client's blood tested
because of risk that if "serological analysis or other forensic
evidence demonstrated that the blood came from [defendant]
alone,

[defendant's] story would be exposed as an invention")

56

Similar reasons undergird why Auerbach's unreas onable
choice meets Strickland's prejudice prong. Without consult ing a
serolog ist and appreciating the difference between Petitioner's
blood type and the blood type found on the underwear sample,
Auerbach 's cross - examination of Wiener, while in other respects
adequate, did not-and , moreover, could not-focus on antigens,
other than simply to ask Wiener whether blood types like A, B,
and 0 existed and whether there was a blood type called H.

(See

A.727.) Without knowing about the blood type difference ,
Auerbach did not discuss those differences or present its
significance to the jury. Had Auerbach investigated the
serological evidence further, he "would have understood [its]
importance" for Petitioner's defense, but his failure to do so
resulted in an inadequate cross-examination of the prosecution's
presentation of said evidence and inadequate defense of his
cl ient. Duncan, 528 F.3d at 1242.

While Petitioner's blood type evidence would not have been
conclusively exculpatory , it, neverthe less, would have been
significant. It would have made it substantively more difficult
for the prosecution to place Petitioner at the crime scene. It
would have forced the prosecution to have to argue that even
though the blood type between the sample and Petitioner

57

differed, heavily suggesting that Petitioner was not the
perpetrator and itself a "straightforward and powerful
argument," that such a fact should not matter because it is
possible there was not enough semen present to accurately test
for B blood types-a "more strained [argument]." Dorsey, 1997 WL
400211, at *5 . The rema ining evidence presented-Petitioner's
contes ted confess i on at the police station, the testimony that
Petitioner had in times past been on the sixteenth floor
landing, Petitioner's statements to female friends-was not so
"overwhelming that [Petitioner's] counse l's error does not
undermine confidence in the verdict ." Id., 1997 WL 400211, at
*9. It would have cast doubt on Petitioner's entire confession,
which at the time of trial Petitioner argued and testified was
coerced . It would have strongly supported the conclus i on that
the prosecution had not met its burden in proving Petitioner's
guilt.

Petitioner has established by a "reasonable probability"
that "absent the errors , the factfinder would have had a
reasonable doubt respecting guilt," which is "a probability
suffic ient to undermine confidence in the outcome." Strickland,
466 U.S. at 694 . It is the kind of "single, serious error" that
can support a claim of ineffective assistance of counsel.

58

Kimmelman v. Morrison, 477 U.S. 265, 383 (1986). It is the kind
that entitles Petitioner to relief under a writ of habeas
corpus.

59

..

.
Conclusion

Petitioner ' s actual innocence claim is not barred by the
applicable statute of limitations. A constitutional claim of
ineffective assistance of counsel has been established . A writ
of habeas corpus will issue.

Respondent is directed to release Petiti oner within 45 days
of the date of this opinion , unless the state declares its
intention , within those 45 days , to retry Petitioner on the
charges against him .

The Clerk of Court is respectfully requested to close this
case .

It is so ordered .

New York, NY
August ~ , 2017

U.S.D.J.

60