Anzalone v. Franklin Correctional Facility
DECISION AND ORDER denying amended petition for a writ of habeas corpus and dismissing the petition. Signed by Hon. Michael A. Telesca on 2/22/12. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DANIEL P. ANZALONE,
DECISION AND ORDER
FRANKLIN CORRECTIONAL FACILITY
Pro se Petitioner Daniel P. Anzalone (“Petitioner”) has filed
a timely petition for a writ of habeas corpus under 28 U.S.C.
§ 2254 challenging the constitutionality of his custody pursuant to
a judgment entered January 10, 2008, in New York State, County
Court, Livingston County, convicting him, after a jury trial, of
Attempted Arson in the Second Degree (N.Y. Penal Law (“Penal Law”)
§§ 110.00, 150.15). Petitioner was sentenced to a determinate term
Factual Background and Procedural History
On March 28, 2007, a Livingston County Grand Jury indicted
Petitioner and charged him with Attempted Arson in the Second
Degree (Penal Law §§ 110.00, 150.15).
The charges arose from an
Corporation (hereinafter “Aldon”), where Petitioner was working as
a temporary employee.
The Prosecution’s Case
In December 2006, Aldon employed nearly 60 workers in a
building located in Avon, New York.
That building housed Aldon’s
chemical formulation and packaging company, and its toner cartridge
Trial Trans. [T.T.] 342-344, 388-389, 398.
Aldon’s chemical business mixed various compounds together, and
packaged them in small containers for educational laboratory use.
T.T. 343, 387-389.
Aldon’s recycling unit received empty toner
cartridges from Xerox, cleaned them, and then returned them to
Xerox for reuse.
Flammable toner dust regularly filled the air at
the Aldon building.
T.T. 311-312, 343, 398.
On December 18, 2006, Petitioner, who had been a temporary
employee at Aldon for less than two weeks, was assigned to Aldon’s
toner cartridge section by his employer, Burns Temp Service.
344-345. Around 11:00 a.m. that day, Petitioner told his co-worker
Janice Patterson (“Patterson”) that he needed to use the men’s
He then entered the separate, but adjoining men’s
locker room, where he jumped on top of some metal lockers, and
moved a ceiling tile.
T.T. 297-298, 346, 348.
Using a red Bic-
brand lighter, above the sprinkler head and fire suppression
system, he lit a softball-sized pile of paper towels with a fuselike tail on fire.
He then placed the lighter beside the burning
T.T. 309, 312, 348, 401.
Petitioner replaced the
Keith Simzer (“Simzer”), the head of maintenance for Aldon,
heard an unusual banging noise from the locker room and entered it
Simzer discovered Petitioner in mid-air as he
jumped down from the lockers. T.T. 296-299, 328-329. Simzer asked
Petitioner what he was doing on top of the lockers, and Petitioner
indicated that he was about to put out a fire.
Simzer did not
Petitioner then jumped back onto the
lockers, moved a ceiling tile, and put his hands inside the
After Petitioner moved the tile, Simzer could
Petitioner told Simzer that he believed the source of the fire was
electrical because the fire had originated in the ceiling light
Simzer, who was responsible for the building’s electrical
maintenance, climbed the ladder for a closer look.
T.T. 296, 300-
Upon his return, Simzer saw Petitioner with Ernest Covell,
the plant manager, who had entered the locker room while Simzer was
Simzer testified that Petitioner had a burnt, wadded-up,
ball of paper towel in his hand, and that the paper towel appeared
to have come from the machine roll found in Aldon’s bathroom.
T.T. 301, 313, 320-322.
Climbing the ladder, Simzer looked above the ceiling tiles,
and discovered that there was nothing wrong with the lights or any
other electrical problems. T.T. 302.
Simzer found paper towel
ashes made from the same paper towels available in the Aldon
restrooms, and a red Bic-brand lighter. T.T. 302, 320-321. Simzer
picked up the lighter and offered it to a group of individuals who
had begun to congregate in the locker room.
No one claimed the
lighter or touched it, and so Simzer put the lighter in one of his
maintenance drawers. T.T. 302-303. The lighter remained there for
two days until it was later collected by Police Sergeant Peter
Earlier that day, Covell had seen someone in the locker room
matching Petitioner’s description on top of the lockers with his
hands inside the ceiling panels.
Covell did not
think anything of it until Petitioner later told him that he had
just put out a fire in the men’s locker room, and that he had seen
smoke and sparks coming from a light fixture.
inspecting the light, Covell saw nothing wrong with it, but saw a
singed soft-ball sized ball of rolled-up paper towel with a tail.
Aldon President James Bertsch (“Bertsch”) testified that he
responded to the fire and, upon doing so, heard Petitioner say that
he put out a fire that he discovered in the men’s locker room.
electrical fire near the light fixture. T.T. 391-392. Bertsch saw
a “fairly good-sized clump” of partially-burned paper towel on the
That same day, Aldon terminated
Petitioner’s work assignment.
T.T. 352, 394.
Petitioner out of the building, at which time Petitioner stated,
“boy, I hope I don’t get in trouble just for putting out a fire,
and I’m losing my job because I tried to save people’s jobs and
stuff, you know for putting out the fire.”
Corporation should report the fire led to a two-day delay in the
investigation. T.T. 394-395. Sergeant Henry responded to the Avon
building on December 22, 2006, and collected the red Bic lighter
T.T. 303, 436.
Forensic scientist Elizabeth Staude (“Staude”) extracted DNA
evidence from the lighter’s striker’s wheel.
consistent with Petitioner’s DNA was found on the lighter’s wheel,
along with DNA from one other person.
employee Robin Campbell (“Campbell”), “boy, they’re really lucky I
Otherwise, if I hadn’t been, the place could have
On January 12, 2007, Police Officer Timothy Ferrara questioned
Petitioner, and Petitioner gave a signed written statement in which
stated that, while working at Avon on December 18, 2006, he had
smelled the strong odor of wood burning.
to Petitioner, he began inspecting the smell and discovered a light
reflection in an open part of the ceiling where a tile had been
He then jumped up on the lockers and saw a pile of paper
towel on fire next to a red lighter.
Officer Ferrara that a man then walked in to the locker room and
asked Petitioner what he was doing, and while the man went for
help, Petitioner kept banging on the fire to make sure it was out
and had not spread.
Petitioner told Officer Ferrara
that he did not know how the fire had started, but insisted it was
not him because “he just found it.”
acknowledged, however, that he was the only person in the bathroom
when the fire was discovered, and he did not see anyone leaving as
On November 2, 2007, with the assistance of Aldon employees
Covell and Simzer, Fire Investigator Kevin Niedermaier conducted a
videotaped test burn at the Aldon site in Avon.1
Investigator Niedermaier, based upon eyewitness accounts, recreated
the events of December 18, 2006.
T.T. 419, 430, 444.
towel “ball” and tail used in the test burn were the same as the
paper towels witnesses had described as used in the fire in
Before jury selection, defense counsel objected to the prosecution’s
proposed introduction of this videotape recreating the fire. T.T. 6-7, 19-21.
Defense counsel argued that the videotape was unnecessary and duplicative of
anticipated oral testimony, and asserted that there were inconsistencies between
the paper towel used in the videotaped experiment and the paper towels ignited
during the crime.
T.T. 6-9, 11-18.
In the alternative, defense counsel
requested an adjournment to allow him to conduct his own tests. T.T. 7, 12-14.
The court viewed the videotape before admitting the videotape. T.T. 26. The
court ruled that it would instruct jurors that the videotape was offered to show
the path Simzer took when discovering the crime, but not show the pace Simzer
walked or the amount of time the crime took to commit.
The court denied
Petitioner’s request for an adjournment, finding that counsel had sufficient time
to make an earlier application, and still had time to conduct his own testing.
T.T. 27-28. At trial, before the introduction of the testimony of Officer Henry,
who had assisted Investigator Neidermaier with the taping of the video, defense
counsel again objected to the admission of the videotaped test burn on the ground
that it was duplicative. T.T. 446-448.
T.T. 357, 430-431, 444.
Based upon his training,
his expertise and his observations of the experiment, Investigator
Niedermaier opined that there would not have been any smoke in the
bathroom on the day in question, or anywhere below the locker
room’s ceiling, and nothing at the scene would have led to the
smell of burning wood.
Investigator Neidermaier also
testified that the butane lighter’s placement next to the burning
paper towel created a risk of a much greater and more intense
conflagration than the fire that had burned before Petitioner put
The Defense’s Case
Petitioner testified in his defense, and called three other
defense witnesses. Aldon Vice President Alex Molinich (“Molinich”)
testified that, after the incident on December 18, 2006, Petitioner
told him that he had seen sparks coming out of a light fixture in
the locker room.
Molinich was concerned that there was,
in fact, an electrical fire, although, according to him, the burnt
paper towel did not match Petitioner’s recollection of having seen
sparks. T.T. 501-502. Molinich testified that he smelled smoke as
examination that the burnt paper towel was already on the floor of
the locker room when he arrived.
T.T. 501, 503.
acknowledged that the People’s example ball of paper towel was
similar to what he had seen in the locker room.
Aldon employees Janice Patterson (“Patterson”) and Diane White
(“White”) both testified that Petitioner had excitedly told them
that he saw sparks and flames in the men’s locker room and that he
had jumped up and put the fire out.
T.T. 506-507, 508.
During his testimony, Petitioner denied that he had set the
fire in the men’s locker room on December 18, 2006.
Petitioner, he was in the bathroom when he smelled smoke, peeked
into the locker room and “saw pieces of burnt paper, flying in the
air, falling to the ground.”
Petitioner then jumped up
on top of the lockers, looked in the ceiling, saw a bunch of paper
towel burning and proceeded to put out the flames with his hands.
According to Petitioner, the burning ball of paper
towels was twice as big as the People’s sample used at trial.
Petitioner also testified that, aside from its size, the paper
appeared to be the same as the burning paper he found in the
According to Petitioner, he grabbed the red
Bic lighter he found in the ceiling, and held it for fifteen or
twenty minutes before Ernest Covell took it.
T.T. 518, 532.
acknowledged that he was a cigarette smoker, but denied using the
lighter and stated that he never used the striker wheel on the
T.T. 532-533, 542-543.
Petitioner admitted that he did
not see anyone else inside the locker room or leaving the locker
Verdict and Sentencing
Petitioner was found guilty as charged, and subsequently
sentenced to a determinate term of ten years imprisonment, followed
Sentencing Min. [S.M.] 11-12.
conviction on the following grounds:
(1) the evidence was legally
(3) prosecutorial misconduct; and (4) the sentence was harsh and
See Pet’r Br. on Appeal, Points I-IV at Resp’t Ex. A.
The Appellate Division, Fourth Department unanimously affirmed the
judgment of conviction.
People v. Anzalone, 70 A.D.3d 1486 (4th
Depot 2010) (Resp’t Ex. C); lv. denied, 13 N.Y.3d 906 (2009)
(Resp’t Ex. O).
It determined that Petitioner’s legal sufficiency
and prosecutorial misconduct claims were unpreserved, and, in any
event, meritless. It also determined that the trial court properly
admitted the videotape and that Petitioner’s sentence was not
unduly harsh or severe.
Anzalone, 70 A.D.3d at 1486-87.
The Habeas Corpus Petition
On December 28, 2010, Petitioner filed a pro se petition for
a writ of habeas corpus.
On or about January 12, 2011, Petitioner
filed an amended petition, wherein he seeks relief on the grounds
that: (1) the evidence was legally insufficient; (2) the trial
court improperly admitted the videotape recreating the arson; and
(3) his sentence was harsh and excessive.
See Amended Pet. ¶ 22,
Grounds One-Four (Dkt. No. 2).
For the reasons stated below, habeas relief is denied and the
petition is dismissed.
III. Analysis of the Petition
Petitioner’s Legal Sufficiency Claim is Unexhausted but
Deemed Exhausted and Procedurally Defaulted
In grounds one, three, and four of the petition, Petitioner
argues that the evidence was legally insufficient to support his
conviction for attempted arson in the second degree because:
(1) Aldon did not contact the authorities until four days after the
incident, resulting in tainted evidence;
(2) the People’s expert
witness improperly testified that the lighter contained male DNA
even though the lighter had been tainted when other people touched
it; and (3) the People’s witnesses were incredible, because they
were on felony probation and gave inconsistent testimony.2
Amended Pet., Grounds One, Three and Four.
As discussed below,
Petitioner’s legal insufficiency claim is unexhausted but deemed
exhausted and procedurally defaulted from habeas review.
“An application for a writ of habeas corpus on behalf of a
person in custody pursuant to a judgment of a State court shall not
be granted unless it appears that . . . the applicant has exhausted
When Petitioner raised this claim on direct appeal, the appellate court
determined that it had not been properly preserved for appellate review, and, in
any event, was meritless. See Anzalone, 70 A.D.3d at 1487.
the remedies available in the courts of the State. . . .”
U.S.C. § 2254(b)(1)(A);
see, e.g., O’Sullivan v. Boerckel, 526
U.S. 838, 843-44 (1999);
accord, e.g., Bossett v. Walker, 41 F.3d
825, 828 (2d Cir.1994), cert. denied, 514 U.S. 1054 (1995).
exhaustion of state remedies requirement means that the petitioner
must have presented his constitutional claim to the highest state
court from which a decision can be obtained.
Morgan v. Bennett,
204 F.3d 360, 369 (2d Cir. 2000) (citing Grey v. Hoke, 933 F.2d
117, 119 (2d Cir. 1991)).
Here, Petitioner raised his legal insufficiency claim on
direct appeal, but, as he concedes at ¶ 11 of his amended petition,
failed to seek review of the claim in his leave application to the
New York State Court of Appeals.
In his leave application,
Petitioner sought review of his harsh and excessive sentencing
claim and his claim that the trial court erred in admitting the
videotape recreating the fire.
See Leave Application at Resp’t
Petitioner’s failure to include his legal insufficiency
claim in his leave application renders the claim unexhausted for
purposes of federal habeas review.
See Grey, 933 F.2d at 120
(where leave application argued one claim but omitted two others,
petitioner “did not fairly apprise the court” of the omitted
claims, rendering them unexhausted).
At page 18 of its Memorandum
of Law, Respondent argues that the claim should be deemed exhausted
but found to be procedurally barred from habeas review because
Petitioner has no means to exhaust the claim in state court.
at 120-21 (“[f]or exhaustion purposes, ‘a federal habeas court need
not require that a federal claim be presented to a state if it is
clear that the state court would hold the claim procedurally
barred.’”) (quoting Harris v. Reed, 489 U.S. 255, 263 n.9 (1989));
(“Because [petitioner] failed to raise his claim in the ordinary
appellate process and can now no longer do so, it is procedurally
defaulted.”)); N.Y. Crim. Proc. Law (“C.P.L.”) § 440.10(2)(c)
(court must deny motion to vacate where claim is matter of record
that could have been raised on direct appeal but unjustifiably was
not). The Court agrees with Respondent that the record-based claim
is procedurally barred, and may only be reviewed if Petitioner
establishes cause for the default and resulting prejudice, or that
a fundamental miscarriage of justice will result from the Court’s
failure to review the claim.
78, 90 (2d Cir. 2001);
See e.g., Aparicio v. Artuz, 269 F.3d
accord Carvajal v. Artuz, 633 F.3d 95, 104
(2d Cir. 2011) (“If a habeas applicant fails to exhaust state
remedies by failing to adequately present his federal claim to the
procedurally barred, we must deem the claim
[ ] procedurally
defaulted.’”) (quoting Aparicio, 269 F.3d at 90; alteration in
Petitioner has not alleged cause and prejudice to overcome the
Moreover, for purposes of the miscarriage-of-
justice exception, he has made no showing that he is “‘actually
innocent’ (meaning factually innocent) of the crime for which he
Carvajal, 633 F.3d at 108 (citing Bousley v.
United States, 523 U.S. 614, 622, 623 (1998);
Accordingly, Petitioner’s legal sufficiency claim is procedurally
defaulted from habeas review and dismissed on that basis.
Petitioner’s Claim that the Trial Court Erred in
Admitting the Videotape Recreating the Arson is
Unexhausted but Deemed Exhausted and Procedurally
In ground two of the petition, Petitioner contends that the
trial court erred in admitting the videotape creating the arson.3
See Amended Pet. ¶ 22, Ground Two.
This claim, like the former
claim, is also unexhausted but deemed exhausted and procedurally
defaulted from habeas review, but for different reasons.
A habeas claim is properly exhausted when the state court is
fairly apprised of the claim’s federal nature and of the factual
and legal premises underlying the claim. Grey, 933 F.2d at 119-20.
Habeas petitioners can ensure that state courts are “alerted to the
fact that [they] are asserting claims under the United States
Constitution,” Duncan v. Henry, 513 U.S. 364, 365-66 (1995), by
presenting their claims in a fashion demonstrating either “(a)
When Petitioner raised this claim on direct appeal, the appellate court
denied it on the merits.
It found that, “County Court properly admitted in
evidence a videotape reconstructing the incident. The videotape was relevant,
and the People established that there was substantial similarity between the
conditions under which the reconstruction was conducted and the conditions at the
time of the event in question.
Any difference between the videotape and the
circumstances under which the attempted arson occurred went to the question of
weight rather than admissibility.”
Anzalone, 70 A.D.3d at 1487 (internal
citations and quotations omitted).
analysis, (b) reliance on state cases employing constitutional
analysis in like fact situations, (c) [an] assertion of the claim
in terms so particular as to call to mind a specific right
protected by the Constitution, [or] (d) [an] allegation of a
Petrucelli v. Coombe, 735 F.2d 684, 688 (2d Cir.1984).
Here, as Respondent correctly asserts (see Resp’t Mem. of Law
at page 16-17), Petitioner raised this claim on direct appeal and
his leave application to the New York Court of Appeals; however, in
doing so, he framed and argued the claim as a matter of state law,
relying upon state law authority to support his argument.
Pet’r Br. on Appeal, Point II at Resp’t Ex. A; Pet’r Leave
Application at Resp’t Ex. D.
Petitioner did not argue the claim in
terms that called to mind a specific right protected by the federal
constitution, nor can it be said that the particular pattern of
facts he alleges is well within the mainstream of constitutional
See e.g., Smith v. Duncan, 411 F.3d 340, 348-349
(2d Cir. 2005) (general claim that state evidentiary error denied
Petitioner a fair trial was insufficient to exhaust a claim of
constitutional dimension; explaining that test for when such a
complaint should alert state court to constitutional claim centers
therefore that the state courts were not “fairly apprised” of the
federal constitutional dimension of the claim, and, consequently,
it remains unexhausted.
Because Petitioner no longer has a state
court forum in which to exhaust this record-based claim, the Court
deems it exhausted and procedurally defaulted from habeas review.
See Grey, 933 F.2d at 120-21.
Petitioner makes no showing of the
requisite cause and prejudice to overcome the default, nor has he
made any showing that the Court’s failure to review the claim will
result in a miscarriage of justice.
Accordingly, Petitioner’s claim that the trial court erred in
defaulted from habeas review and dismissed on that habeas.
Harsh and Excessive Sentence
Liberally construing Petitioner’s pro se pleadings, he also
See Amended Pet. at page 10.
As discussed below, this claim
provides no basis for habeas relief.
Abuse of Discretion - Harsh and Excessive Sentence
In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws or
Petitioner appealed his sentence in the state courts, he urged the
Appellate Division, Fourth Department to exercise its discretionary
authority under state law to reduce his sentence in the interest of
justice. See Pet’r Br. on Appeal, Point IV at Resp’t Ex. A.
Petitioner’s sentencing claim, based solely on state law, is not
appropriate for federal habeas review.
The Second Circuit has held that no federal constitutional
issue amenable to habeas review is presented where, as here, the
sentence is within the range prescribed by state law.
Keane, 969 F.2d 1381, 1383 (2d Cir. 1992);
548 F.2d 1102, 1108 (2d Cir. 1977);
Fielding v. LeFevre,
Underwood v. Kelly, 692 F.
Supp. 146 (E.D.N.Y. 1988), aff’d, 875 F.2d 857 (2d Cir.), cert.
convicted of Attempted Arson in the Second Degree (a Class C
violent felony), punishable by a determinate prison term of from
three and one-half years to fifteen years.
See Penal Law §§ 70.02;
110.00; 150.15. Petitioner was sentenced to a determinate ten year
prison term, which is well with the range prescribed by New York
established by state law, his claim does not present a federal
constitutional issue cognizable on habeas review.
Violation of the Eighth Amendment
To the extent, if any, Petitioner raises an Eighth Amendment
unexhausted because the constitutional nature of the claim was not
“fairly presented” to the state courts on direct appeal.
Petitioner raised this claim on direct appeal, he invoked the
appellate court’s discretionary authority to reduce the sentence in
the interest of justice.
Resp’t Ex. A.
See Pet’r Br. on Appeal, Point IV at
Courts in this district have found that a prisoner’s
reliance on a state procedural law granting courts discretionary
authority to reduce sentences does not “fairly present” his or her
constitutional claim in state court. Accord, Bester v. Conway, 778
F. Supp. 2d 339, 2011 U.S. Dist. LEXIS 43141, 2011 WL 1518696, at
*8 (W.D.N.Y. 2011) (citing King v. Cunningham, 442 F. Supp.2d 171,
181 (S.D.N.Y. 2006) (citations omitted)). Because Petitioner could
return to state court and file a motion pursuant to C.P.L. § 440.20
unconstitutional, his Eighth Amendment claim –- to the extent he
raises such –- remains unexhausted.
Petitioner’s failure to exhaust the Eighth Amendment claim is
not fatal to this Court’s disposition of his application on the
Because the Court finds the claim to be wholly meritless,
it has the discretion to dismiss the petition notwithstanding
Petitioner’s failure to exhaust.
See 28 U.S.C. § 2254(b)(2);
Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2002).
Merits of the Claim
The Supreme Court has articulated a principle of “gross
disproportionality” for measuring whether a prisoner’s sentence
violates the Eighth Amendment proscription against “cruel and
E.g., Harmelin v. Michigan, 501 U.S. 957
Solem v. Helm, 463 U.S. 277 (1983);
445 U.S. 263 (1980).
Rummel v. Estelle,
Only extreme sentences that are grossly
disproportionate to the crimes for which they are imposed can be
said to violate the Eighth Amendment. See id.; see also United
States v. Snype, 441 F.3d 119, 152 (2d Cir. 2006) (noting that
sentences have been exceedingly rare).
Applying the Supreme
Court’s precedent on this issue, the Court finds that this case
does not present one of those rare and extreme circumstances in
which the Supreme Court contemplated intervention by a reviewing
court into a state’s sentencing decision.
Accordingly, Petitioner’s sentencing claim provides no basis
for habeas relief and the claim is therefore dismissed.
For the reasons stated above, the amended petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 2) is
denied, and the petition is dismissed.
Because Petitioner has
constitutional right,” 28 U.S.C. § 2253(c)(2), the Court declines
to issue a certificate of appealability.
See, e.g., Lucidore v.
New York State Div. of Parole, 209 F.3d 107, 111-113 (2d Cir.
The Court also hereby certifies, pursuant to 28 U.S.C.
§ 1915(a)(3), that any appeal from this judgment would not be taken
in good faith and therefore denies leave to appeal as a poor
Coppedge v. United States, 369 U.S. 438 (1962).
Petitioner must file any notice of appeal with the Clerk’s
Office, United States District Court, Western District of New York,
within thirty (30) days of the date of judgment in this action.
Requests to proceed on appeal as a poor person must be filed with
United States Court of Appeals for the Second Circuit in accordance
with the requirements of Rule 24 of the Federal Rules of Appellate
IT IS SO ORDERED.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
February 22, 2012
Rochester, New York
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