Scott v. Racette
Filing
22
DECISION AND ORDER denying 17 Motion to Appoint Counsel ; finding as moot 19 Motion ; finding as moot 21 Motion; and dismissing the Petition 1 . (Clerk to close case.) (Copy of Decision and Order sent by first class mail to Petitioner.). Signed by Hon. Michael A. Telesca on 1/16/18. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
ANDRE L. SCOTT,
DECISION AND ORDER
No. 1:15-cv-00043-MAT
Petitioner,
-vsSTEVEN RACETTE,
Respondent.
____________________________________
INTRODUCTION
Pro se petitioner André L. Scott (“Petitioner”), presently
incarcerated in Respondent’s custody, seeks a writ of habeas corpus
pursuant
to
28
U.S.C.
§
2254.
Petitioner
challenges
the
constitutionality of the judgment entered against him in New York
State, Genesee County Court (Noonan, J.) on October 28, 2010,
following a jury verdict convicting him of arson, first-degree
burglary, attempted second-degree murder, and second-degree arson.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The conviction here at issue stems from Petitioner’s alleged
involvement in an accelerant-spiked fire that erupted on the night
of January 24, 2009, at the rooming house of Steven Crandall
(“Steven”), the father of Petitioner’s former paramour, April
Crandall (“Crandall”).
I.
The Jury Trial
A.
The Prosecution’s Case
April testified that she and Petitioner began dating in March
of 2008, and moved in together in June. At some point prior to the
fire, she had moved out of his apartment because they were not
getting along. However, they still talked on a daily basis. (T.262,
270).1 Around the end of December 2008, or the beginning of January
2009, April testified that she told Petitioner she did not want to
talk to him or see him at all. (T.262). According to April, this
made Petitioner “very upset,” and he became “really mad” when she
“kept
ignoring
his
phone
calls.”
(T.263,
264,
266-67).
On
January 24, 2009, Petitioner left her a voicemail stating it “was
over[,]” after which he listed off the names of her mother, father,
and brothers, and a number of other family members, and stated that
“they were done” and it was “over for them, too.” (T.263). April
related that Petitioner asserted, “I’m going to kill your mom, your
dad, your brothers[.]” (T.265). April told her father, Steven,
about this message. (Id.).
Steven testified that sometime in early December of 2008,
April and Petitioner paid a visit to him at his apartment on the
second floor of 12 Elm Street2 in Batavia, New York. After they all
went out for lunch, Petitioner and April dropped Steven off at his
apartment. Steven testified that Petitioner did not enter the
basement of 12 Elm Street on that occasion, and did not visit his
residence again.
(T.323-25).
1
Citations to “T.” in parentheses refer to pages from the trial transcript.
2
Steven shared his apartment with one roommate. The house at 12 Elm Street
was a three-story structure that had been divided into three apartments, one on
each floor. (T.329-30).
-2-
A few days before the fire, Steven testified, there were some
phone calls and texts among him, Petitioner, and April; he was
aware that the two of them were having problems. One text from
Petitioner
to
Steven
included
a
“revealing
picture”
of
his
daughter. (T.326).
April’s cousin, William Sachs (“Sachs”), testified that a few
days before the fire on January 24, 2009, Sachs had a conversation
with Petitioner, who was upset about April being pregnant but not
sure who the father was. (T.304). Petitioner also was “angry at
[April’s] father” because “supposedly they had some words on the
phone.” (Id.). Petitioner told Sachs that “some stuff was going
down, and he was going to take care of it,” by “get[ting] rid of
things and tak[ing] care of people.” (T.296, 301). Sachs also
testified that Petitioner remarked that he “was going to get rid of
part of [Sachs’] family[,]” meaning “April, Steve, stuff like
that.” (T.296). Sachs told Petitioner “not to do anything stupid”
that would land him back in jail. (T.296). Sachs testified that he
liked Petitioner and that they had hung out together on occasion.
(T.301).
On the day of the fire, Steven testified, Petitioner called
him sometime before 7 p.m., and was “talking to [him] with some
harsh
words.”
(T.328).
Steven
chastised
Petitioner
about
the
inappropriate photograph of April, telling him “don’t be the
streets;
be
an
example
on
the
streets,”
and
“[t]hat’s
when
[Petitioner] said[,] [“]you don’t want me to come out there.”
-3-
(T.327).
Steven
described
Petitioner’s
tone
of
voice
as
“[t]hreatening, harsh[,]” and “[m]eaningful.” (T.328). Steven, who
was on parole at the time,3 immediately called his parole officer,
Christopher Van Schaik (“P.O. Van Schaik”) and left voicemail
messages reporting Petitioner’s threats. (T.328-29; 545-47). Steven
and his roommate proceeded to watch a DVD in their living room.
(T.329-31). Steven recalled hearing a car in the driveway at about
10:00 p.m.; he looked out of the window but did not see anything.
A little later, Steven testified, he heard something outside his
door; he paused the DVD but did not hear anything else. (T.332).
Steven then recalled hearing a noise outside; he looked out the
window but could not figure out what had made the sound. (Id.).
At around the same time, Steven’s downstairs neighbor, Terry
Luczak (“Luczak”) heard someone pass through the side-door of the
house,
which
is
used
to
access
the
second
and
third
floor
apartments. She also heard “very, very heavy footsteps” “coming up
the stairs, from the apartment, the outside door, the upstairs
[i.e., Steven’s] apartment.” (T.379, 382; T.383-85). Luczak said
that the footsteps, which sounded “like [they were from] two
different people[,]” stopped at the door to her apartment that led
“out to the hall, the stairwell that goes up to the upstairs
apartments[.]” (T.379-80, 381-82, 383). Almost immediately, Luczak
3
Steven was on parole for three grand larcenies and possession of
hydrocodone tablets without a prescription. He had previous convictions for
forgery, assault, and possession of drugs. (T.336-37).
-4-
testified, there was an explosion that shook the building. In the
space between the bottom of the door and the floor, she could see
flames in the hallway. (T.379-81). Then she heard the outside door
close. (Id.). She and her roommate left through a different door,
located at the front of the house. (T.386).
At around the same time, Steven also heard a “loud boom”
against his apartment door. Steven testified that he opened the
door to see a fire burning in the carpeted stairwell at his
doorstep. He grabbed a fire extinguisher, but he was driven back
inside due to the flames. He and his roommate evacuated by means of
the fire escape. (T.333-35).
Members of the Batavia Fire Department (“BFD”) responded to
the scene and extinguished the fire. Batavia Police Department
(“BPD”)
Detective
Charles
Dudek
(“Det.
Dudek”)
arrived
soon
thereafter. Upon entering the side door off the driveway, he
noticed a “strong odor of gasoline.” (T.394). While going down the
cellar
stairs,
Det.
Dudek
encountered
BFD
Captain
James
Steinbrenner (“Capt. Steinbrenner”) holding a Clorox bottle, and he
had the cap off. (T.395). Det. Dudek asked Capt. Steinbrenner to
replace the Clorox bottle where he found it because he was not
wearing gloves. (T.396). Det. Dudek testified that he also noticed
a white matchbook on the second stair from the bottom. (Id.).
Captain Michael Drew (“Capt. Drew”) of the BFD arrived after
the fire was extinguished and smelled gasoline immediately upon
entering. (T.509, 516-18, 532-33). Capt. Drew observed a “deep
-5-
charring burn” to the stairs and landing and concluded that the
fire had been very hot and unusually low to the ground. Based on
this pattern, Capt. Drew believed that a heat source, such as a
flammable liquid on the staircase, accelerated the fire. Capt. Drew
testified that he found no evidence that the fire’s origin was
electrical, accidental, or weather-related, and he concluded that
it had been deliberately set. (T.520-37). Capt. Drew indicated that
the Clorox bottle and cap, as well as multiple floor and carpet
samples from the scene of the fire, were packaged and sent to the
New York State Police forensic laboratory for testing.
The day after the fire, Det. Dudek took statements from Steven
and
April.
He
and
a
colleague,
Detective
Sergeant
Corona
(“Det. Sgt. Corona”), then traveled to Rochester and enlisted the
help of the New York State Division of Parole (“Parole Division”)
to locate Petitioner. Det. Dudek, Det. Sgt. Corona, P.O. Van
Schaik, and two other parole officers staked out Petitioner’s
apartment complex. At about 8:50 p.m., they saw Petitioner’s black
GMC Yukon SUV into the parking lot. (T.400-01). Petitioner was
approached by one of the parole officers and taken into custody.
The other two parole officers searched the vehicle and recovered
two cell phones. P.O. Van Schaik testified that Petitioner had a
“strong odor” of alcohol on his breath. (T.401-02; T.551, 553-54,
585). Petitioner was transported to the Parole Division office in
Rochester where he was administered an Alco-Sensor by P.O. Van
Schaik, who also obtained a buccal swab from him to test for drugs.
-6-
(T.403-08, 494-95).4 The buccal swab subsequently was provided to
Det. Dudek, who sent it to the New York State Police Forensic
Investigation Center (“FIC”) for DNA testing. (T.403-06, 408,
494-95, 552-58).
Dr. Frank Padula, a forensic scientist at the FIC testified as
an expert in fire debris analysis, and stated that his testing of
the Clorox bottle and samples of wood and carpet from 12 Elm Street
showed that they all contained gasoline. (T.604-16). Peter Lewis
(“Lewis”), a laboratory scientist at the FCI, testified regarding
his DNA testing on the various items of physical evidence recovered
at the fire scene and the buccal swab taken from Petitioner. He
obtained swabs from the matchbook, the Clorox bottle cap, the
bottle’s handle, and various points on the bottle itself. He
testified that the cap of the Clorox bottle contained a mixture of
Petitioner’s DNA and the DNA of another unidentified person, with
Petitioner’s DNA being the major contributor. (T.668-73). Defining
the term “major contributor,” Lewis testified that the possibility
of selecting an unrelated individual with a single tandem repeat
(“STR”) DNA profile matching that of the major contributor was less
than 1 in 300 billion. (T.673; see also T.669-70). Lewis explained
that the handle of the Clorox bottle contained a DNA mixture that
was consistent with Petitioner’s DNA profile and the profile DNA of
4
Petitioner testified that in 2008, he was on parole for possession of a
loaded handgun. As a condition of parole, Petitioner consented to warrantless
searches of his person, vehicle, and home by the Parole Division. (T.582-83). He
acknowledged this in his testimony. (T.905-06, 949-50).
-7-
another donor. (T.666-67). Lewis stated that the body of the Clorox
bottle yielded a partial STR DNA profile that was consistent with
Petitioner’s DNA profile and the profiles of two additional donors.
(T.667-68).
Lewis
stated
that
his
laboratory
used
the
term
“consistent” when some alleles were missing in the comparison
profiles or there was an absence of any DNA because there was not
much on the swab to begin with. (T.665). Finally, Lewis testified
that he developed a partial DNA profile from the matchbook that was
consistent with Petitioner’s DNA. (T.665-66).
B. The Defense Case
Petitioner recalled meeting April in early February of 2008;
she moved in with him in mid-July of 2008. (T.903-04). Petitioner
testified that by mid-October of 2008, they were not getting along,
and April moved out. However, Petitioner said, the two maintained
daily
contact
(T.906-07,
breaking
916,
up
and
continued
965).
with
to
Petitioner
April,
he
got
have
a
sexual
testified
back
relationship.
stated
together
that
with
after
an
old
girlfriend, Heather Bentley (“Bentley”), who was an acquaintance of
April’s.
In November of 2008, Petitioner finalized plans to sell a car
to
April’s
cousin,
Sachs.
(T.907-09).
On
January
18,
2009,
Petitioner testified, April told him that she was pregnant and that
he might be the father. (T.909-10). On January 21, 2009, Petitioner
disclosed to April that he was having sex with Bentley. According
-8-
to Petitioner, April became angry upon learning this; she began
obsessively phoning him, but he ignored her calls. (T.918, 964).
Petitioner
acknowledged
that
he
sent
April
at
least
41
text
messages in the two days preceding the fire. (T.970-71). Petitioner
also conceded that he may have sent April as many as 45 text
messages on the day of the fire, and that his last text to her that
day was sent at 6:43 p.m. (T.962-64).
Petitioner testified that he met April’s father, Steven, once
at his apartment, on the day that they all had gone out for pizza
in Batavia. According to Petitioner, even after April moved out, he
and Steven shared friendly text messages. (T.914-15). Petitioner
admitted that the day before the fire, he sent Steven a topless
photograph of April via text message, but testified that he did so
accidentally. (T.918-19, 922, 948, 960-62).
On the night of the fire, Petitioner testified, he went to a
party hosted by his friend Denise Colon (“Colon”) at her house in
Rochester at around 7:00 p.m. He stayed there until between 10:30
and 11:00 p.m., except for a brief errand that he ran with Savon
Simmons (“Simmons”) to buy beer, liquor, chips and cigarettes.
Petitioner said that after the party, Simmons drove him to his
cousin’s house. (T.905-06, 926-27, 949-50). Petitioner said that he
discussed the events of that night with his alibi witnesses (Colon,
Simmons, and Lauren Lindner (“Linder”)) when they visited him in
jail. (T.946-47).
-9-
Colon described herself as Petitioner’s “god-sister” and said
that
Petitioner
(T.798-803).
and
Colon
his
mother
testified
that
were
she
her
had
closest
prior
friends.
arrests
for
possession of a weapon and convictions for possession of marijuana
and driving while intoxicated. (T.824). Colon admitted that she
refused to speak to the police but did provide a statement to a
defense investigator. (T.818-19, 831).
Simmons testified that he and Petitioner left Colon’s party to
buy Hennessey at around 9:15 p.m., returned to the party after
running that errand, and then left for good at around 10:00 or
10:30 p.m. (T.836-38, 841-43). Simmons dropped petitioner off at
Petitioner’s cousin’s house. (T.843, 859). Simmons gave a statement
to a defense investigator but did not respond to a police officer
who was investigating the case. (T.849, 852, 860-61).
Lindner
also
testified
in
support
of
Petitioner’s
alibi
defense. She admitted to a prior arrest for drug-possession. She
acknowledged that, prior to trial, she reviewed her anticipated
testimony with Petitioner. (T.881, 886-87). Lindner testified that
Petitioner arrived at Colon’s party on January 24, 2009, at around
5:00 or 6:00 p.m. Lindner recalled that at around 8:30 p.m.,
Petitioner left briefly to buy a bottle of Hennessey. He departed
at 11:00 p.m. and did not return to the party. Lindner stated that
Simmons drove her and Colon to visit Petitioner in jail. (T.885).
Colon’s daughter, K.J., who refers to Petitioner as her uncle,
testified that Petitioner attended a party at her mother’s house
-10-
the night before he was arrested for the parole violation. She
recalled that Petitioner left the party at 11:00 p.m., but she
could not remember at what time any of the other guests left.
(T.890-95, 898). K.J. testified that she discussed her testimony
with her mother, who forbade her from talking to the police.
(T.895-97).
C.
Jury Verdict and Sentence
On August 31, 2010, the jury returned a verdict finding
Petitioner guilty of all charges submitted to it. (T.1097-99).
Prior to sentencing, new counsel was substituted for trial counsel,
at Petitioner’s request. On October 28, 2010, the trial judge
sentenced Petitioner to concurrent determinate terms of 20 years’
imprisonment on each conviction, to be followed by 5 years of
post-release supervision on each conviction.
II.
Post-Conviction Proceedings in State Court
Represented by new counsel, Petitioner pursued a direct appeal
of his conviction, which was unanimously affirmed. See People v.
Scott, 93 A.D.3d 1193 (4th Dep’t), lv. denied, 19 N.Y.3d 967,
recons. denied, 19 N.Y.3d (1001) (2012).
In January of 2013, Petitioner filed a pro se application for
a
writ
of
error
coram
nobis
challenging
appellate
counsel’s
ineffectiveness, which was summarily denied. People v. Scott, 104
A.D.3d 1261 (4th Dep’t), rearg. denied, 107 A.D.3d 1502 (4th Dep’t
2013), lv. to appeal rearg. denied, 22 N.Y.3d 1159 (2014), lv.
-11-
denied, __ N.E.3d ___ (Mar. 25, 2014), recons. denied, 23 N.Y.3d
1025, recons. denied, __ N.E.3d ___ (June 24, 2014). In May of
2014, Petitioner filed an unsuccessful pro se motion in the trial
court challenging the orders of protection issued at the sentencing
hearing. In August of 2014, again acting pro se, Petitioner filed
a motion in the trial court pursuant to New York Criminal Procedure
Law (“C.P.L.”) § 440.10 to vacate his conviction, which was denied
on October 30, 2014 (SR.1093-96). Petitioner’s motion to reargue
and to renew was denied on February 27, 2015. (SR.1099-1100). The
Fourth Department denied leave to appeal, and reargument of that
denial. (SR.1100-21).
III. The Habeas Proceeding
In his timely petition for a writ of habeas corpus, Petitioner
asserts that (1) he is actually innocent; (2) trial and appellate
counsel
were
ineffective;
(3)
the
evidence
was
legally
insufficient; (4) his conviction was obtained through the use of a
suggestive identification procedure; (5) he was subjected to an
unlawful search and seizure; (6) he was deprived of his right to
present a defense; (7) the jury was unconstitutionally selected;
(8) the police and prosecution engaged in misconduct; (9) his
conviction rested on unreliable scientific evidence; and (10) the
sentence was harsh and excessive and discriminatory. Petitioner
also has moved for the appointment of counsel. Respondent answered
the petition, and Petitioner filed a reply brief and a traverse.
-12-
For the reasons discussed below, the request for a writ of
habeas corpus is denied, as is the request for appointment of
counsel.
DISCUSSION
I.
The Petition
A.
Ground One Is Not Cognizable on Federal Habeas Review.
For his first claim (see Pet. at 7-10), Petitioner asserts
that he is actually innocent of the charges against him. Respondent
argues that this claim is not cognizable on federal habeas review
and is, in any event, without merit.
The Supreme Court has “not resolved whether a prisoner may be
entitled to habeas relief based on a freestanding claim of actual
innocence.” McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013)
(citing Herrera v. Collins, 506 U.S. 390, 404-05 (1993)). Indeed,
“[c]laims of actual innocence based on newly discovered evidence
have never been held to state a ground for federal habeas relief
absent an independent constitutional violation occurring in the
underlying state criminal proceeding.” Id. (citation omitted). The
Supreme Court explained that “[t]his rule is grounded in the
principle that federal habeas courts sit to ensure that individuals
are not imprisoned in violation of the Constitution-not to correct
errors of fact.” Herrera, 506 U.S. at 400 (citations omitted). The
Supreme Court’s habeas jurisprudence “makes clear that a claim of
‘actual innocence’ is not itself a constitutional claim, but
-13-
instead a gateway through which a habeas petitioner must pass to
have his otherwise barred constitutional claim considered on the
merits.” Id. at 404.
Based on the foregoing Supreme Court precedent, Petitioner
cannot obtain habeas relief on his freestanding actual innocence
claim. See, e.g., Ortega v. Duncan, 333 F.3d 102, 108 (2d Cir.
2003) (stating that in order for habeas relief to issue on a newly
discovered evidence claim, “a due process violation must have
occurred at Ortega’s trial”) (citing Herrera, 506 U.S. at 400);
Castellanos v. Kirkpatrick, No. 10-CV-5075(MKB), 2015 WL 7312908,
at *8 (E.D.N.Y. Nov. 18, 2015) (dismissing § 2254 petitioner’s
actual innocence claim as “not cognizable on habeas review”)
(citation omitted).
However, because several of Petitioner’s grounds for relief
are procedurally defaulted, see infra, the Court will consider
whether his actual innocence claim can serve as a “gateway” to
federal habeas review for these barred claims. See McQuiggin, 569
U.S. at 386 (“hold[ing] that actual innocence, if proved, serves as
a
gateway
through
which
a
petitioner
may
pass
whether
the
impediment is a procedural bar . . . or . . . expiration of the
statute of limitations”) (citing Schlup v. Delo, 513 U.S. 298, 329
(1995); other citation omitted). “‘[A] petitioner does not meet the
threshold requirement unless he persuades the district court that,
in light of the new evidence, no juror, acting reasonably, would
have voted to find him guilty beyond a reasonable doubt.’” Id.
-14-
(quoting Schlup, 513 U.S. at 329; citation omitted). Thus, “tenable
actual-innocence gateway pleas are rare.” Id.
“To be credible,” a
claim of actual innocence must be supported by “new reliable
evidence–whether it be exculpatory scientific evidence, trustworthy
eyewitness accounts, or critical physical evidence–that was not
presented at trial.” Schlup, 513 U.S. at 324. Importantly, “‘actual
innocence’ means factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623 (1998) (citation
omitted).
Here,
Petitioner
asserts
that
he
has
“compelling
newly
discovered scientific evidence in the form of an affidavit from
Kenneth Moses[,]” a forensic fire investigator, stating that “the
purple
ninhydrin
stains
on
the
matchbook
(recovered
from
crimescene) are where bodily fluid amino acids reacted with the
chemical, and are inconsistent with being from fingerprints . . .
.” (Pet. at 7 (citing Exhibit (“Ex.”) A, Affidavit of Kenneth R.
Moses (“Moses Aff.”)). According to Petitioner, this proves that
the
DNA
obtained
from
the
matchbook
was
not
“touch
DNA”
as
described by the prosecution’s DNA expert but was instead derived
some type of bodily fluid planted by law enforcement. As discussed
below, the Court finds that Petitioner does not have a colarable
“gateway” claim of actual innocence.
In 2014, Petitioner retained Moses, the Director of Forensic
Identification Services, an independent crime laboratory, to review
the
procedures
employed
to
test
-15-
the
recovered
matchbook
for
fingerprints. (See id. at 6-7, Ex. A). Specifically, Petitioner
asked Moses to provide an opinion as to “whether or not the stain
on the matchbook is consistent with saliva that might have been
improperly transferred to that surface.” (Moses Aff., ¶ 7). Based
on his examination, Moses determined that the “apparent stain on
the matchbook” was “not consistent” with being from a fingerprint
because of its “lack of ridge detail and its overall shape that is
not similar to the shape of a finger. It appears that the stain
reacted with Ninhydrin and therefore could possibly be from a
bodily fluid.” (Moses Aff., ¶ 9; emphasis supplied). Petitioner
argues
that
“artificially
this
establishes
deposited”
some
his
of
theory
that
Petitioner’s
Det.
“bodily
Dudek
fluid”
(presumably, some saliva from the buccal swab) on the matchbook in
order to inculpate him. (Pet. at 8-9). Ultimately, however, Moses
was “unable to resolve [Petitioner’s] concerns.” (Id. (emphasis
supplied)). Thus, contrary to Petitioner’s assertion, Moses did not
state that the ninhydrin stains on the matchbook indicated “where
bodily fluid amino acids reacted with the chemical.” Rather, that
is
Petitioner’s
own
self-serving
interpretation,
which
is
unsupported by Moses’ report. Petitioner has not established that
Moses’ report is new, reliable, exculpatory scientific evidence.
Petitioner also argues that his factual innocence is supported
by a statement from Steven’s 14-year-old neighbor, Ashley Hale
(“Hale”), who told police that on the night of the fire, she was
-16-
walking her dog “in her driveway at 8 Elm Street, when she heard a
noise” and then saw “a tall individual[,] possibly a white male
wearing a tan coat, dark[-]colored winter hat and work boots run
from the area of the noise north on Elm St.” (SR.884, 917). Hale
did not provide the police with a definitive description of the
race of the man she saw running on Elm Street; she explained that
she thought that he “might” be white because, from behind, she
thought that she saw “white in the neck area.” (SR.914). Hale’s
statement cannot form the basis of an actual innocence claim
because it is not “new.” Indeed, the record establishes that
Petitioner was aware of her statement at the time of the trial, and
subpoenaed her to testify as a defense witness in support of his
third-party culpability theory that Luczak’s estranged husband, a
veteran with PTSD who had committed multiple acts of domestic
violence against her, was the arsonist. (T.321, 771).5
In addition, the exculpatory value of Hale’s statement is far
from clear. As noted above, the young woman was unsure about the
race of the man she saw running. The record also indicates that
Luczak’s estranged husband was somewhat less than average height
5
The trial court denied Petitioner’s request to present evidence supporting
his third-party culpability theory on the basis that he had not demonstrated a
sufficient link between the arson at issue and Luczak’s husband. (See T.318-21).
On appeal, the Fourth Department found that this was not an abuse of discretion;
given lack of evidence supporting the theory that Luczak’s husband might have had
a motive to harm one of the residents of the apartment building where the fire
occurred, such evidence was irrelevant and was likely to cause undue prejudice
and confusion with respect to evidence presented to the jury. Scott, 93 A.D.3d
at 1195 (citations omitted).
-17-
for a man (5'7"), while Petitioner is quite tall (6'9"). (SR.27).
And, Petitioner testified that it was possible that he was wearing
a tan coat on the night of the fire. (T.959). Since Hale’s
statement leaves open the possibility that Petitioner was actually
the “tall” man she saw running on the night of the fire, it does
not persuasively show his factual innocence.
Even
considering
the
Moses
report
and
Hale’s
statement
cumulatively, they do not augment the defense case such that “it is
more likely than not that no reasonable juror would have convicted
[Petitioner] in light of the new evidence.” Dunham v. Travis, 313
F.3d 724, 730 (2d Cir. 2002) (citing Schlup v. Delo, 513 U.S. at
327). Therefore, Petitioner fails to satisfy the standard for a
“gateway” claim of actual innocence.
B.
As
Ground Two Partially Fails to State Colorable Habeas
Claims and Partially Lacks Merit.
Ground
Two
by
of
purported
errors
appellate
counsel. “It
the
trial
is
Petition,
counsel,
Petitioner
sentencing
well-established
itemizes
counsel,
44
and
that ‘[c]onclusory
allegations . . . not supported by a statement of specific facts do
not warrant habeas relief.’” Webb v. Griffin, No. 10-CV-0585 MAT,
2011 WL 3738974, at *8 (W.D.N.Y. Aug. 24, 2011) (quoting James v.
Borg, 24 F.3d 20, 26 (9th Cir.) (citation omitted), cert. denied,
513 U.S. 935 (1994); citation omitted). The alleged errors that
form the basis of Ground Two are presented essentially as a
-18-
“laundry list,” without any factual amplification or supporting
legal argument.
In his Memorandum of Law in Support of Habeas Corpus Petition
and Reply to Respondent’s Answer (“Reply”), Petitioner fleshes out
portions of his ineffective assistance claim. (See Reply at 1-18).
The arguments raised therein pertain to the allegations numbered 2,
6, 8, 12, 13, 22, 34, 37, 39, 41, and 44 in the Petition. The Court
will consider these allegations as they have been amplified with
additional factual explanation and legal argument. However, the
Court dismisses, as too conclusory to state viable habeas claims,
Ground Two’s allegations numbered 1, 3-5, 7, 9-11, 14-19, 20-21,
23-33, 35-36, 38, 40, and 42-43. See Jones v. Hollins, 884 F. Supp.
758, 766 (W.D.N.Y.) (“[W]ithout providing specific citations to the
record, . . . [petitioner’s] conclusory allegation, made without
any factual or case law support, is insufficient to overcome the
strong presumption of reasonable assistance.”), aff’d, 89 F.3d 826
(2d Cir. 1995); Matura v. United States, 875 F. Supp. 235, 237–38
(S.D.N.Y.
1995)
(“[B]ecause
[petitioner’s]
claim
is
merely
a
conclusory allegation, petitioner has failed to establish that his
counsel’s performance was deficient. Petitioner’s bald assertion
that
counsel
should
have
conducted
a
more
thorough
pretrial
investigation fails to overcome the presumption that counsel acted
reasonably.”); other citations omitted).
-19-
1.
The
Applicable Legal Standard
Sixth
Amendment
provides
that
in
all
criminal
prosecutions, the accused shall enjoy the right to the assistance
of counsel. U.S. Const., amend. VI. A lawyer’s representation is
constitutionally deficient where it (1) falls “below an objective
standard
of
reasonableness;”
and
(2)
there
is
a
“reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland v.
Washington,
466
U.S.
668,
688,
694
(1984).
Recognizing
the
“tempt[ation] for a defendant to second-guess counsel’s assistance
after conviction or adverse sentence,” id. at 689, “a court must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” id. To
fulfill the prejudice prong, “[t]he defendant must show that there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id. at 694. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. “That requires a
‘substantial,’ not just ‘conceivable,’ likelihood of a different
result. Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quotation
omitted).
Strickland’s two-pronged standard also applies to appellate
counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (citation
omitted), cert. denied, 513 U.S. 820 (1994). It is not sufficient
-20-
for a petitioner to show that appellate counsel omitted a colorable
argument. Jones v. Barnes, 463 U.S. 745, 751 (1983). Rather, he
must demonstrate that appellate counsel “omitted significant and
obvious
issues
while
pursuing
issues
that
were
clearly
and
significantly weaker.” Clark v. Stinson, 214 F.3d 315, 322 (2d Cir.
2000).
2.
Allegations Against Trial Counsel
(Nos. 2, 6, 8, 12-13, 22, 37, 39 & 41)
Allegation numbers 2, 6, and 12 pertain to trial counsel’s
alleged
failure
to
appropriately
challenge
the
prosecution’s
forensic evidence. Petitioner argues that trial counsel erroneously
relied on Petitioner, rather an a forensic expert, to challenge the
forensic evidence. However, this assertion is belied by the record,
which indicates that defense counsel consulted with a forensic
expert, Dr. Julie Heinig; however, counsel ultimately decided not
to call her as a witness.
Relatedly,
Petitioner
asserts
that
trial
counsel
was
ineffective for not requesting a “‘Frye/Daubert’ hearing on LCN
(low template) DNA.”
Even assuming that this was an error,
Petitioner has not demonstrated how this omission prejudiced his
defense, and therefore fails to establish ineffective assistance.
See, e.g., Maddox v. Lord, 818 F.2d 1058, 1062 (2d Cir. 1987)
(“[P]etitioner contends that her trial counsel unreasonably failed
to investigate the prosecution’s forensic evidence. Even assuming
the failure to be unreasonable, petitioner has not met the second
-21-
prong of the Strickland test because she has not shown that such
alleged failure prejudiced her defense. Although she offers an
affidavit from an expert who will testify as to the path and
trajectory of the bullets fired from the rifle, there is no
indication that this evidence would be in any way exculpatory.”).
In addition, Petitioner faults counsel for failing “to consult
with or obtain fire cause and origin experts,” as Petitioner did in
2014. As Respondent argues, the proposed experts’ conclusion that
the BFD’s investigation was flawed is based on a critique of
relatively insignificant shortcomings, such as the failure to
adequately coordinate their team investigative approach, to secure
DNA samples from all residents of 12 Elm Street, to try to match
Petitioner’s shoes with footprints in the snow, and to identify the
source of the Clorox bottle and the matchbook found in the cellar.
In adjudicating this fire-expert claim
on the merits in
connection with Petitioner’s C.P.L. § 440.10 motion, the trial
judge
correctly
found
that
the
report
(SR.819-30)
simply
“challenge[d] the quality of the forensic evidence without offering
a plausible fact-based alternative scenario for either accidental
ignition or third-party involvement (as previously rejected by this
Court and the Appellate Division).” (SR.1095). Moreover, as the
trial
court
found,
the
report
“constitutes
mere
impeachment
material[,] which, if offered by the defense at trial would not
have
disclosed
information
of
such
significantly
greater
impeachment value as to create a reasonable possibility of a
-22-
different verdict.” (SR.1095). Thus, even if Petitioner could show
that this omission constituted deficient performance, he has failed
to show that it detrimentally affected the outcome of his trial.
Furthermore, as the trial court found, since trial counsel elected
to pursue an alibi defense, “there existed legitimate reasons for
trial counsel to restrict his challenge to the forensic evidence
regarding the cause and origin of the fire to cross-examination.”
(SR.1095) (citation omitted). The failure to call a forensic expert
to address the “how and why” of the arson did not prevent trial
counsel from actually presenting an alternative theory of the case
to
the
jury,
because
Petitioner
mounted
an
alibi
defense,
challenging the prosecution’s identification of “who” the arsonist
was. Furthermore, calling a forensic expert on behalf of the
defense was not without risk, including the exposure of the expert
to cross-examination. Here, defense counsel executed a vigorous and
effective cross-examination of the prosecution’s fire experts, and
succeeded in presenting the essential points of the defense without
exposing a defense expert to cross-examination. See, e.g., Morency
v. Annucci, No. 14-CV-672(DLI)(ST), 2017 WL 4417718, at *12-13
(E.D.N.Y. Mar. 20, 2017), report and recommendation adopted, No.
14-CV-672 (DLI) (ST), 2017 WL 4417647 (E.D.N.Y. Sept. 30, 2017).
In allegation number 8, Petitioner asserts that trial counsel
was
ineffective
independently
notwithstanding
in
failing
retested
that,
for
to
have
the
according
to
-23-
all
presence
evidence
of
Petitioner,
samples
accelerants,
it
was
common
knowledge that the New York State Police forensic laboratory was
being investigated for purportedly “dry-labbing (faking results).”
This allegation relies on pure speculation and, as such, does not
suffice to show deficient performance by counsel, or the reasonable
probability
of
a
different
result.
See
Johnson
v.
Artus,
No. 07CIV59005(SAS)(FM), 2009 WL 763897, at *11 (S.D.N.Y. Feb. 20,
2009) (“[The petitioner’s] mere conjecture that [trial counsel]
could have secured such testimony [corroborating claim of police
misconduct]
had
he
only
investigated
further
plainly
is
insufficient to warrant habeas relief.”) (citations and footnote
omitted), report and recommendation adopted, No. 07 CIV. 5905 SAS
FM, 2009 WL 1505177 (S.D.N.Y. May 28, 2009).
In allegation number 13, Petitioner assails trial counsel for
failing
findings
to
and
“present
readily
testimony
from
available
experts
exculpatory
such
as
Mr.
ninhydrin
Moses
that
contradict State’s ‘touch DNA’ theory and support defense that DNA
was planted.” (Pet. at 12) (citation omitted). Petitioner vastly
overstates the probative value of the Moses’ report which, as
discussed supra, neither proved that DNA was “planted” on any of
the items of physical evidence nor exculpated Petitioner.
In allegation number 22, Petitioner asserts that trial counsel
was ineffective in failing to request missing witness charges with
regard to Hale; John Egan, who performed the fingerprint analysis;
Det. Sgt. Corona; and Capt. Steinbrenner. With regard to Hale,
Petitioner’s
protest
is
nonsensical
-24-
because
he
also
argues,
contradictorily, that trial counsel’s failure to call Hale as a
defense witness was ineffective. With regard to the remaining three
individuals, Petitioner offers nothing but speculation as to how
their
testimony
would
have
helped
the
defense,
which
is
insufficient to show that counsel was ineffective. See, e.g.,
Eisemann v. Herbert, 401 F.3d 102, 108 (2d Cir. 2005) (ineffective
assistance claim based on failure to call a witness lacked merit
where “there is nothing in the record that provides the slightest
indication as to what [the witness] would have said if called or
even
that
he
“speculation
would
to
have
suggest
said
that
anything
his
at
testimony
all”
would
and
it
have
was
been
exculpatory”) (citation omitted).
In allegation number 37, Petitioner faults trial counsel for
having “elicited highly prejudicial testimony about a blue car with
two black males [in it]” during Steven’s cross-examination, because
the dispositive issue was identity, and Petitioner is black.
Petitioner, admits however, that there was no proof that any blue
car was connected to this crime; nor does he own a blue car. Steven
did not recognize either of the individuals in the vehicle, one of
whom was light skinned and one of whom was dark skinned. (T.35255). Steven testified that
he did not see it stop in front of the
house or alongside the house, or pull into the driveway. The Court
cannot discern how any of this testimony was prejudicial given that
it did not link Petitioner to the crime.
-25-
In allegation number 39, Petition asserts that trial counsel
had “divided loyalty” due to his “prior familiarity” with the arson
victim. Petitioner asserts that trial counsel falsely informed him
that his state habeas corpus petition for bail could not be
appealed, because counsel was concerned about the safety of the
victim’s daughter, April. Petitioner has not come close to showing
that trial counsel labored under an actual conflict of interest.
The
Second
Circuit
has
cautioned
that
“it
is
not
enough
in
determining the existence of an actual conflict of interest merely
to assess the attorney’s state of mind”; rather, there must exist
some “objective basis for the claim.” Strouse v. Leonardo, 928 F.2d
548, 553 (2d Cir. 1991). Here, the objective basis is clearly
lacking. Compare with Moseley v. Scully, 908 F. Supp. 1120, 1139
(E.D.N.Y.
1995)
(finding
no
“objective
basis”
that
habeas
petitioner’s lawyer was affected by a conflict of interest due to
alleged emotional ties to murder victim, who was a former client of
the lawyer, despite lawyer’s own statement during the sentencing
phase of the trial that he “didn’t try this case . . . objectively,
calmly, just
as
a
lawyer defending
a
client
[should]”
which
“reek[ed] of an actual conflict of interest”; district court found
that lawyer’s “ephemeral representation of [the victim] did not
create the type of relationship likely to bias him towards his
former client over his current client any more than any lawyer
would feel compassion and sympathy towards a savagely murdered
victim”), aff’d, 104 F.3d 356 (2d Cir. 1996). Even if there was a
-26-
conflict of interest, Petitioner still has not shown entitlement to
habeas relief, because Petitioner has not established that his
attorney’s personal interests diverged from his “with respect to a
material factual or legal issue or to a course of action.” LoCascio
v. United States, 395 F.3d 51, 56 (2d Cir. 2005) (quotation
omitted).
2.
Allegations Against Sentencing Counsel (Nos. 40-41)
Petitioner
contends
that
sentencing
counsel,
who
was
substituted for trial counsel, erred by failing to investigate
Petitioner’s claim of juror misconduct, and then lied at sentencing
by
claiming
that
nonmeritorious.
The
he
had
juror
investigated
misconduct
it
claim
and
found
it
is
based
on
conversations between an alternate juror, Dorothy Hall
(“Hall”),
and her grand-daughter, Melania London (“London”), who worked as an
officer at the jail where Petitioner was being held and who was not
involved in Petitioner’s trial. However, these two individuals were
not members of the deliberating jury. Further, the record indicates
that prior to deliberations, the trial court placed the three
alternate jurors, including Hall, “with each other but separate
from the other jurors.” (T.1086). Petitioner was not prejudiced
because the claim was without merit.
Petitioner also faults sentencing counsel for failing to
challenge the orders of protection in favor of April and Sachs
because they were not victims as defined statutorily. This is
-27-
unsupported by the record, which indicates that sentencing counsel
did raise that objection. (SR.13-15).
3.
Allegations Against Appellate Counsel (No. 44)
In allegation number 44, Petitioner argues that appellate
counsel should have made a more compelling presentation of his
Fourth Amendment argument. Petitioner notes that in the leave
letter, appellate counsel wrote that the principal issue was
whether the Parole Division “had the legal authority to transfer
the saliva samples and cellular phones” to the BPD; the Fourth
Department held that the Parole Division “had the authority to
conduct
the
warrantless
search,
that
is
not
the
issue
that
[appellate counsel] raised in [his] brief. Rather, the issue is
whether it had legal authority to transfer the fruit of its
warrantless search to the Batavia Police Department.” Appellate
counsel’s argument about the alleged lack of legal authority to
transfer the buccal swab was based on the theory that the Parole
Division “was acting as ‘a conduit of police activity. . . .’”
(SR.25).
The
Fourth
Department
concluded
that
based
on
the
evidence presented at the suppression hearing, it “cannot conclude
that the trial court erred, as a matter of law, in concluding that
the search of the defendant by the parole officers, with police
assistance, was in furtherance of parole purposes and related to
their duty as parole officers[.]” People v. Scott, 93 A.D.3d at
1194 (internal quotations, ellipses, alterations omitted; citations
-28-
omitted). By disposing of Petitioner’s argument regarding the
legality
of
the
search
and
seizure,
the
Fourth
Department
implicitly rejected appellate counsel’s contention that the Parole
Division did not have the legal authority to transfer the fruits of
its search to the BPD.
Petitioner, for his part, faults the Fourth Department for
purportedly “evad[ing]” a different issue of law, namely, “that a
DNA test is a separate search which exceeds the scope of a drug
test and requires a warrant pursuant to C.P.L. § 240.40-2(b)(5).”
In his brief, appellate counsel argued in passing that discovery of
Petitioner’s DNA was not necessarily “inevitable” because there was
no way of knowing how the trial court would have ruled on a C.P.L.
§ 240.40-2(b)(5) motion. Even assuming that this is a colorable
argument, Petitioner has not demonstrated a reasonable probability
of a more favorable result, given that a sample of Petitioner’s DNA
already
was
on
file
with
a
statewide
database
pursuant
to
New York’s law requiring convicted felons to provide DNA samples.
C.
Ground Three Does Not Warrant Habeas Relief Under 28
U.S.C. § 2254(d)(1)
On direct appeal, Petitioner argued, as he does here, that the
evidence against him was insufficient because the DNA evidence was
unreliable, and, therefore, the prosecution failed to prove his
identity as the arsonist.
(SR.33-37).
-29-
The Fourth Department
rejected Petitioner’s legal insufficiency claim, and further found
that the verdict was not against the weight of the evidence.
The “relevant question” for a habeas court assessing the
legal
sufficiency
of
the
evidence
supporting
a
petitioner’s
conviction, “is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in
original). Even when “faced with a record of historical facts that
supports conflicting inferences [a court] must presume—even if it
does not affirmatively appear in the record—that the trier of fact
resolved any such conflicts in favor of the prosecution, and must
defer to that resolution.” Id. at 326.
Here, the sole issue is whether the prosecution established,
beyond a reasonable doubt, the identity of the individual who
committed the crimes charged. See N.Y. Crim. Proc. Law. § 70.20
(“No conviction of an offense by verdict is valid unless based upon
trial evidence which is legally sufficient and which establishes
beyond a reasonable doubt every element of such offense and the
Defendant’s commission thereof.”). The Second Circuit has explained
that “there is no rule of law that requires identity to be
established
by
an
eyewitness[;]”
rather,
“[i]dentity
can
be
inferred through circumstantial evidence.” United States v. Kwong,
14 F.3d 189, 193 (2d Cir. 1994).
-30-
Appellate counsel’s legal insufficiency argument focused on
the lack of direct evidence linking Petitioner to the crime, which
in
turn
was
based
on
alleged
flaws
in
the
forensic
testing
methodology, cross-contamination of evidence items, and a shoddy
investigation of the crime scene by fire department and police
personnel. (SR.33-34). These arguments, in turn, attacked the
credibility of the fire department witnesses, the police witnesses,
and the forensic experts who testified at trial. However, it is
well settled that “assessments of the weight of the evidence or the
credibility of witnesses are for the jury and not grounds for
reversal on appeal; [the reviewing court] defer[s] to the jury’s
assessments of both of these issues.” Maldonado v. Scully, 86 F.3d
32, 36 (2d Cir. 1996) (citations omitted). Here, trial counsel
thoroughly challenged the veracity, credentials, and competence of
the prosecution’s police, fire, and forensic witnesses, as well as
the substance of their findings in his comments to the jury. The
jurors, however, rejected these credibility arguments, and this
Court cannot revisit their factual determinations. See id.
With
regard
to
the
circumstantial
evidence
related
to
identity, Petitioner argued that even assuming he made threats to
April and Steven, those threats do not directly link him to the
crime because neither April nor Steven testified to a specific
statement of what he was going to do, and that both witnesses were
not credible. Again, the credibility issues presented in the
testimony of April and Steven were exclusively within the jury’s
-31-
province to resolve. See id. Petitioner ignores the testimony from
April’s cousin, who identified himself as a friend of Petitioner,
and who appeared reluctant to be testifying. Sachs related that
Petitioner made statements to him indicating his intention to “get
rid of” April and Steven, while promising to spare Sachs and his
immediate family from harm. (T.294-96, 304). Petitioner cannot
dispute that such evidence is generally admissible for purposes of
establishing
intent,
motive
and
identity.
E.g.,
People
v.
Bierenbaum, 748 N.Y.S.2d 563, 587 (1st Dep’t 2002). Moreover,
Petitioner cites no authority regarding the degree of specificity
that must be present for prior threats to be relevant and probative
as to an accused’s intent, motive and identity. It is true that
evidence of prior threats and assaults sometimes “manifests . . .
a general propensity to act aggressively against other people[,]”
id., and is not proper. Here, however, the proof clearly evinces
Petitioner’s intent to focus his aggression on one person and her
close family members. See id. The victim in this case—Steven—was
one of the individuals specifically identified by Petitioner as
someone he intended to “get rid of.” The crime occurred at Steven’s
home, on the same day that Petitioner told him that he did not want
Petitioner to “come out there.”
With regard to Petitioner’s alibi, this also was a weight-ofthe-evidence question entrusted to the jury. All of the alibi
witnesses, who were very close of friends of Petitioner, admitted
to visiting him since the night of the fire; they also spoke to
-32-
each other about the case. Colon and Simmons, in particular, were
inconsistent when questioned about when they discussed the case
with Petitioner and the extent of what they discussed. On the
present record, the jury cannot be said to have acted arbitrarily
in discounting these witnesses’ stories.
Sachs testified that after the fire, Petitioner approached him
and said he “needed the money [Sachs] owed him soon because he was
going to jail. . . .” (T.297). The jury was entitled to consider
this as evidence of consciousness of guilt. See, e.g., People v.
McPhillips, 21 N.Y.S.3d 134, 135 (2d Dep’t 2015) (statement to
victim by defendant, “‘I’m not going back to prison’ . . .
constituted an implicit acknowledgment by the defendant that he had
engaged in conduct that would result in him ‘going back to prison’”
and thus the “statement contained an ‘implied admission of guilt’”)
(citations omitted). It also could be viewed as circumstantial
evidence of motive, intent, and identity. See People v. Brumfield,
654 N.Y.S.2d 74, 74 (4th Dep’t 1997) (defendant’s comment
in
statement to police that “[he] didn’t want to go back to jail
because [he] had just got out” not required to be redacted as it
was admissible to show defendant’s motive and intent) (citations
omitted).
After reviewing the record, the Court agrees that the Fourth
Department
correctly
applied
the
Jackson
standard
in
denying
Petitioner’s legal insufficiency claim. As that court concluded,
“there is a valid line of reasoning and permissible inferences to
-33-
support the jury’s finding that [Petitioner] committed the crimes
of which he was convicted based on the evidence presented at
trial[.]” Scott,
93 A.D.3d at 1194 (citations and quotations
omitted).
D.
Grounds Four and Six Are Unexhausted But Must Be Deemed
Exhausted and Procedurally Defaulted
1.
Ground
Four:
Procedure
Unconstitutional
Identification
As Ground Four of the Petition, Petitioner claims that he was
subjected
to
“an
unduly
suggestive
and
irreparable
misidentification procedure.” (Pet. at 16-17). Petitioner concedes
that he never raised this claim in state court. (See id. at 17).
This claim is unexhausted he has never fairly presented it in
Federal constitutional terms to the State courts in the course of
completing one round of the State's established appellate review
process. See, e.g., Baldwin v. Reese, 541 U.S. 27, 29 (2004).
However, the claim must be deemed exhausted because Petitioner no
longer has available remedies in state court. See, e.g., Bossett v.
Walker, 41 F.3d 825, 829 (2d Cir. 1994) (deeming claims exhausted
where it “would . . . be fruitless to require [the petitioners] to
pursue these claims in state court”). First, Petitioner has already
completed his direct appeal. By statute, New York law used to
specifically provide for only a single application for direct
review. Spence v. Sup’t, Great Meadow Corr. Fac., 219 F.3d 162, 170
(2d Cir. 2000) (relying on former New York Rules for the Court of
-34-
Appeals (“N.Y. R. Ct.”) § 500.10(a) (discussing leave applications
for criminal appeals)). N.Y. R. Ct. § 500.10 has since been
amended, and criminal leave applications are now addressed in N.Y.
R. Ct. § 500.20. Although § 500.20 “does not specifically state
that there may be only one application for appeal, see N.Y. R. Ct.
§ 500.20, such a restriction may be inferred,” since “[b]oth Rule
500.20(d) and CPL § 460.10(5) provide a 30–day window for any such
application to be filed; this time limit would be meaningless were
multiple applications permitted.” Colon v. Connell, No. 07 Civ.
7169(BSJ)(JCF), 2009 WL 2002036, at *6 n. 4 (S.D.N.Y. July 9,
2009). In addition, N.Y. R. Ct. § 500.20(a)(2) provides that the
leave letter must indicate that “that no application for the same
relief has been addressed to a justice of the Appellate Division,
as only one application is available[.]” N.Y. R.CT. § 500.20(a)(2).
The only other way for Petitioner to exhaust this habeas claim
would be to file a motion to vacate the judgment pursuant to C.P.L.
§ 440.10. Because the claim is based on matters of record and could
have been raised on direct appeal, denial of such a motion is
statutorily mandated. See N.Y. Crim. Proc. Law § 440.10(2)(c).
The procedural rules that foreclose Petitioner’s return to
state court also render his suggestive identification procedure
claim procedurally defaulted. See Bossett, 41 F.3d at 829. “Federal
courts may address the merits of a claim that was procedurally
defaulted in state court only upon a showing of cause for the
default and prejudice to the petitioner.” Id. (citing Wainwright v.
-35-
Sykes, 433 U.S. 72, 87 (1977)). “Cause may be demonstrated with ‘a
showing that the factual or legal basis for a claim was not
reasonably available to counsel, . . . or that “some interference
by state officials” made compliance impracticable, . . . [or that]
the procedural default is the result of ineffective assistance of
counsel.’” Id. (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)
(citations omitted in original; ellipses and brackets in original).
Although Petitioner does raise a slew of ineffective assistance of
trial and appellate counsel claims, none of them are meritorious,
as discussed supra. Therefore, they cannot serve as “cause.” See,
e.g., Bloomer v. United States, 162 F.3d 187, 191 n. 1 (2d Cir.
1998) (“Ineffective assistance will constitute cause when it rises
to a constitutional violation of a petitioner’s Sixth Amendment
right
to
have
the
effective
assistance
of
counsel
for
his
defense.”) (citing Coleman v. Thompson, 501 U.S. 722, 755 (1991)).
Petitioner’s inability to show “cause” obviates the need for
the Court to consider whether “prejudice” exists. See Stepney v.
Lopes, 760 F.2d 40, 45 (2d Cir. 1985) (“Since a petitioner who has
procedurally defaulted in state court must show both cause and
prejudice in order to obtain federal habeas review, we need not, in
light of our conclusion that there was no showing of cause, reach
the
question
of
whether
or
not
[the
petitioner]
showed
prejudice.”).
As alternative to showing cause and prejudice, “[a] habeas
petitioner may bypass the independent and adequate state ground bar
-36-
by demonstrating a constitutional violation that resulted in a
fundamental miscarriage of justice, i.e., that he is actually
innocent of the crime for which he has been convicted.” Dunham v.
Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup, 513 U.S.
at 321; other citation omitted). As discussed supra, Petitioner has
not established a viable “gateway” claim of actual innocence.
Therefore, he cannot rely on the fundamental miscarriage of justice
exception.
His
suggestive
identification
claim
accordingly
is
dismissed as subject to an unexcused procedural default.
2.
Ground Six: Denial of Right to Present a Defense
Respondent argues that Petitioner’s claim concerning the trial
court’s denial of permission to present evidence in support of a
third-party culpability theory is unexhausted because Petitioner
did not present this evidentiary claim to the state courts in terms
of a violation of his constitutional right to present a defense.
For purposes of exhaustion, “the petitioner must have placed before
the state court essentially the same legal doctrine he asserts in
his federal petition.” Daye v. Att’y Gen. of N.Y., 696 F.2d 186,
191 (2d Cir. 1982) (en banc) (citations omitted). A petitioner may
“fairly present the substance of a federal constitutional claim to
the state court without citing ‘“book and verse on the federal
constitution[,]”’” id. (quotations omitted), such as “(a) reliance
on
pertinent
federal
cases
employing
constitutional
analysis,
(b) reliance on state cases employing constitutional analysis in
-37-
like fact situations, (c) assertion of the claim in terms so
particular as to call to mind a specific right protected by the
Constitution, and (d) allegation of a pattern of facts that is well
within the mainstream of constitutional litigation.” Id. at 194.
In his brief, Petitioner cited only to New York state cases
that did not employ any federal constitutional analyses or refer
even generally to the constitutional right to present a defense.
Nor did the appellate brief assert the claim in terms so particular
to call to mind a specific right protected by the Constitution, or
allege a pattern of facts that is well within the mainstream of
constitutional
litigation.
Therefore,
the
Court
finds
that
Petitioner failed to fairly present his constitutional claim to the
state courts, “because his appellate brief did not alert the state
courts that a Federal constitutional claim was at issue. . . .”
Young v. Conway, 761 F. Supp.2d 59, 78 (W.D.N.Y. 2011) (citing Day,
696 F.2d at 194; other citation omitted), aff’d, 698 F.3d 69 (2d
Cir. 2012).
Petitioner’s claim alleging the denial of the right to present
a defense must be deemed exhausted because Petitioner no longer has
remedies available in New York state courts. Petitioner has already
used his direct appeal, and collateral review by means of another
C.P.L. § 440.10 would be subject to mandatory dismissal under
C.P.L. § 440.10(2)(c). See Young, 761 F. Supp.2d at 79. However,
the
same
procedural
bars
that
result
in
the
“constructive
exhaustion” of the claim also creates a procedural default. See,
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e.g., Bossett, 41 F.3d at 828–29 (citations omitted). For the
reasons discussed supra, Petitioner cannot show cause; this is
fatal because cause and prejudice both must be established. See
Stepney, 760 F.2d at 45. Likewise, as discussed supra, he does not
have a viable actual innocence claim and cannot demonstrate a
fundamental miscarriage of justice. Ground Six accordingly is
dismissed as subject to an unexcused procedural default.
E.
Ground Five Is Barred Because Petitioner Had a Full and
Fair Litigation Opportunity in State Court
Petitioner argues that the BPD unlawfully obtained a sample of
his DNA, via a buccal swabbing performed by P.O. Van Schaik, in
violation
of
his
Fourth
Amendment
right
to
be
free
from
unreasonable searches and seizures. (See Pet. at Ground Five,
pp. 18-20).
Respondent
argues
that
this
claim
barred
by
the
doctrine articulated in Stone v. Powell, 428 U.S. 465 (1976), that
“where the State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, a state prisoner may not be
granted federal habeas corpus relief on the ground that evidence
obtained in an unconstitutional search or seizure was introduced at
his trial.” Id. at 494 (footnotes omitted). The Second Circuit has
interpreted Stone’s holding as permitting federal habeas review of
Fourth Amendment claims only in limited circumstances, namely,
where “the state provides no corrective procedures at all to
redress Fourth Amendment violations,” Gates v. Henderson, 568 F.2d
830, 840 (2d Cir. 1977) (en banc) (citations omitted), cert.
-39-
denied, 434 U.S. 1038 (1978), or “an unconscionable breakdown in
that process” “preclude[s] [the defendant] from utilizing it . . .
.” Id.
Here, prior to trial, Petitioner moved to suppress the buccal
swab based primarily on the argument that upon the theory that the
parole officer was improperly acting as an agent of the police when
the evidence was seized. A hearing was conducted on February 26,
2010, after which the trial court determined that no constitutional
violation occurred. Through appellate counsel, Petitioner pressed
his Fourth Amendment claim on direct appeal. The appellate court
found
that
the
parole
officers’
warrantless
search
was
constitutional because it was rationally and reasonably related to
the performance of their duties as parole officers. The record
reveals that New York State’s corrective process6 not only was
available to, but was actually utilized by, Petitioner.
Moreover,
there is no indication that there was “an unconscionable breakdown”
in New York State’s corrective process; it is well established that
“a mere disagreement with the outcome of a state court ruling is
not the equivalent of an unconscionable breakdown in the state’s
corrective process.” Capellan, 975 F.2d at 72. Accordingly, the
6
As the Second Circuit has noted, “the ‘federal courts have approved New
York’s procedure for litigating Fourth Amendment claims, embodied in N.Y. Crim.
Proc. Law § 710.10 et seq. (McKinney 1984 & Supp. 1988), as being facially
adequate.’” Capellan v. Riley, 975 F.2d 67, 70 & n. 1 (2d Cir. 1992) (quoting
Holmes v. Scully, 706 F. Supp. 195, 201 (E.D.N.Y. 1989); citation omitted).
-40-
Court finds that Petitioner’s Fourth Amendment claim is barred from
federal habeas review. See id.
F.
Grounds Seven and Eight Are Too
Speculative to State Colorable Claims
1.
Under
Ground Seven:
Selection
the
heading
for
Racial
Ground
Conclusory
Discrimination
Seven
in
the
in
and
Jury
Petition,
Petitioner alleges that the jury panel lacked ethnic diversity, and
that
the
prosecutor
exercised
a
peremptory
challenge
in
a
discriminatory manner. As Respondent notes, Petitioner has set
forth no facts in support of these claims, which warrants their
summary dismissal. Webb, 2011 WL 3738974, at *8 (citing, inter
alia, United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994)
(holding that the court “is not required to fashion [petitioner’s]
arguments for him where his allegations are merely conclusory in
nature and without supporting factual averments”)).
2.
Ground Eight: Prosecutorial Misconduct
Under the heading for Ground Eight in the Petition, Petitioner
asserts a litany of alleged wrongdoings by the Genesee County
District Attorney’s Office and the BPD, grouped by Respondent into
the following categories: (1) planting DNA evidence; (2) suborning
perjury from the police witnesses and the Crandalls; (3) presenting
“knowingly misleading DNA testimony;” (4) withholding information
on third-party culpability and Steven Crandall’s prior informant
status; and (5) misstating evidence in summation. (See Pet. at 22).
-41-
Federal
courts
“have
no
obligation
to
entertain
pure
speculation and conjecture.” Gallop v. Cheney, 642 F.3d 364, 368
(2d Cir. 2011). Moreover, “[f]ederal district courts cannot grant
habeas
relief
based
upon
unsubstantiated
surmise,
opinion
or
speculation.” Mills v. Lempke, No. 11-CV-0440 MAT, 2013 WL 435477,
at *23 (W.D.N.Y. Feb. 4, 2013) (citing Wood v. Bartholomew, 516
U.S. 1, 8 (1995) (federal courts may not grant “habeas relief on
the basis of little more than speculation with slight support”);
other
citations
omitted).
Petitioner’s
claims
of
pervasive
misconduct by multiple law enforcement agencies, amounting to no
less than a conspiracy to unjustly incarcerate him, is based upon
rank speculation with no record support. Accordingly, they cannot
provide a basis for habeas relief. E.g., Mills v. Lempke, 2013 WL
435477, at *23 (collecting cases); see also Panezo v. Portuondo,
No. 02-CV-1522(JBW), 2003 WL 23198781, at *15 (E.D.N.Y. Nov. 6,
2003) (finding that habeas claim “based on such rank speculation”
was “frivolous”).
G.
Ground Nine Is Procedurally Defaulted Under the Adequate
and Independent State Ground Doctrine
On direct appeal, the Fourth Department held that “[i]nasmuch
‘as
defense
counsel
never
specifically
objected
to
the
DNA
testimony on the grounds he now presses on appeal, namely that
[there was an insufficient foundation for the introduction of that
evidence due to the testing that was performed], defendant failed
to preserve this issue for our review[.]’” Scott, 93 A.D.3d at 1195
-42-
(quotation omitted; citing People v. Gray, 86 N.Y.2d 10, 19 (1995)
(“[T]he preservation requirement compels that the argument be
‘specifically directed’ at the alleged error. . . .”)). The Fourth
Department
went
“contentions
on
go
to
to
hold
the
that,
weight
in
of
any
event,
Petitioner’s
the
evidence,
not
its
admissibility[.]” Id. (citation omitted).
Respondent argues that the Fourth Department’s reliance on an
adequate
and
independent
state
ground,
namely,
New
York’s
contemporaneous objection rule, forecloses federal habeas review of
this claim. See, e.g., Garcia v. Lewis, 188 F.3d 71, 76 (2d Cir.
1999)
(“Under
th[e]
[adequate
and
independent
state
ground]
doctrine the Supreme Court ‘will not review a question of federal
law decided by a state court if the decision of that court rests on
a state law ground that is independent of the federal question and
adequate to support the judgment.’”) (quoting Coleman, 501 U.S. at
729; emphases supplied). Here, there is “no question” that the
Fourth Department’s “explicit invocation of the procedural bar
constitutes an ‘independent’ state ground,” Garcia, 188 F.3d at 77
(citing Harris v. Reed, 489 U.S. 255, 263 (1989)), “even though the
court spoke to the merits of [Petitioner]’s claim in an alternative
holding,” id. (citing 489 U.S. at 264 n. 10).
Turning to the “adequacy” element, the Supreme Court has
repeatedly held that “‘the question of when and how defaults in
compliance
with
state
procedural
-43-
rules
can
preclude
.
.
.
consideration of a federal question is itself a federal question.’”
Johnson
v.
Mississippi,
486
U.S.
omitted). A federal habeas court’s
578,
587
(1988)
(quotation
“responsibility to ensure that
the state rule is ‘adequate” obligates [it] to examine the basis
for
and
application
of
state
law.”
Garcia,
188
F.3d
at
77
(citations omitted). As a general matter, both the Supreme Court
and
the
Second
Circuit
have
consistently
recognized
that
contemporaneous objection serve legitimate state interests, id. at
78 (citations omitted), such as allowing the state judge “to make
the factual determinations necessary for properly deciding the
federal
constitutional
question,”
and
promoting
“finality
in
criminal litigation,” Wainwright, 433 U.S. at 88. Time and again,
the Second
Circuit
has
“observed
and deferred
to
New
York’s
consistent application of its contemporaneous objection rules.” Id.
at 79 (collecting cases).
Here, based upon its review of pertinent decisions, this Court
concludes that it must defer to the Fourth Department’s finding of
procedural default because that finding is supported by a “fair or
substantial basis,” Garcia, 188 F.3d at 78 (collecting cases),
in
New York state law. Further, the Court finds no basis in the record
“for deeming application of New York’s contemporaneous objection
rule to [Petitioner]’s claim to be ‘exorbitant.’”
Whitley v.
Ercole, 642 F.3d 278, 288 (2d Cir. 2011) (quotation omitted). To
the
contrary,
the
Fourth
Department’s
invocation
of
the
contemporaneous rule in the present case was “well within the
-44-
parameters of its routine and generally unquestionable application
to bar review of unpreserved objections to trial testimony[,]” id.,
where the defendant failed to specify, in his objection, the
precise ground later raised on appeal. See id. (collecting cases).
As discussed supra, Petitioner cannot avail himself of the
fundamental miscarriage of justice exception. Moreover, he has not
demonstrated cause for the default, which obviates the need to
consider whether prejudice exists. See Stepney, 760 F.2d at 45.
H.
Ground Ten Is Partially Not Cognizable on Federal Habeas
Review and Is Partially Unexhausted But Plainly Meritless
1.
Harsh and Excessive Sentence
Respondent argues that Petitioner’s challenge to the length of
his sentence, since it is based solely on state law, is not
amenable to federal habeas review. See, e.g., White v. Keane, 969
F.2d 1381, 1383 (2d Cir. 1992). In his Traverse (Docket No. 15),
Petitioner concedes this point. Accordingly, the Court dismisses as
non-cognizable Petitioner’s claim that the trial judge abused his
discretion and imposed an excessive sentence.
2.
Racial Prejudice in Sentencing
Petitioner also asserts that the trial court sentenced him
“vindictively” based on what Petitioner perceives to be racially
discriminatory
animus.
Respondent
argues
that
this
claim
is
“unexhausted and procedurally barred because Petitioner did not
raise it on direct appeal or in his motion to vacate the sentence
and provides this Court with no reason for his failure to do so.”
-45-
(Resp’t Mem. at 47). Respondent is correct that the claim is
unexhausted, but is incorrect
that the claim is procedurally
barred. Under New York law a defendant retains the right to
collaterally attack the legality of his sentence “[a]t any time
after the entry of a judgment” as long as the claim was not
“previously determined on the merits upon an appeal.” C.P.L.
§§
440.20(1)
&
(2);
see
also,
e.g.,
Naranjo
v.
Filion,
No. 02CIV.5449WHPAJP, 2003 WL 1900867, at *8 (S.D.N.Y. Apr. 16,
2003) (collecting
cases).
Contrary
to
Respondent’s assertion,
Petitioner does indeed have state court remedies available in state
court insofar as he could assert his discriminatory-sentence claim
in federal constitutional terms in a motion to vacate the sentence
pursuant to C.P.L. § 440.20. See, e.g., Naranjo, 2003 WL 1900867,
at *8 (petitioner’s unexhausted excessive sentence and sentencing
misinformation claims can be raised in federal constitutional terms
in a collateral C.P.L. § 440.20 motion to the extent that they are
challenging the legality of his sentence”) (citation omitted).
Therefore, the claim is not procedurally barred.
Under 28 U.S.C. § 2254(b)(2), the Court has the discretion to
deny claims “on the merits, notwithstanding the failure . . . to
exhaust. . . .” Although the Supreme Court and the Second Circuit
have yet to enunciate a standard for determining when unexhausted
claims should be denied on the merits, the Supreme Court in Rhines
v. Weber, 544 U.S. 269 (2005), instructed district courts that the
stay and abeyance procedure should be used sparingly and only where
-46-
the unexhausted claims are not “plainly meritless[.]” Id. at 277.
Thus,
it
follows
that
if
an
unexhausted
claim
is
“plainly
meritless,” it would not be an abuse of discretion to rely on
§ 2254(b)(2) to dismiss the claim on the merits.
“Mere allegations of judicial bias or prejudice do not state
a due process violation.” Brown v. Doe, 2 F.3d 1236, 1248 (2d Cir.
1993), cert. denied, 510 U.S. 1125 (1994). The record is devoid of
any suggestion that the trial judge harbored racial prejudice
against Petitioner, or relied on any other improper basis when he
fashioned Petitioner’s sentence. Accordingly, the Court finds this
claim to be “plainly meritless,” and it is dismissed. See, e.g.,
Naranjo, 2003 WL 1900867, at *13 (dismissing unexhausted sentencing
claim
where
petitioner
“offered
no
evidence
of
actual
vindictiveness in sentencing and, therefore, . . . has not made out
a claim of constitutionally impermissible vindictive sentencing”).
II.
Miscellaneous Motions
Prisoners
have
no
constitutional
right
to
counsel
when
bringing collateral attacks upon their convictions. Pennsylvania v.
Finley, 481 U.S. 551, 555
(1987). Rather, the appointment of
counsel is a matter of discretion. Wright v. West, 505 U.S. 277,
293 (1992). In determining whether it should appoint counsel under
28 U.S.C. § 1915(d) for indigents in civil cases, such as petitions
for a writ of habeas corpus under 28 U.S.C. § 2254, the court first
should “determine whether the indigent’s position seems likely to
be of substance.” Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir.
-47-
1997). Petitioner cannot meet this threshold showing, given that
the Court has found that none of his claims warrant habeas relief.
The Court finds that the interests of justice do not necessitate
the appointment of counsel in this case, and Petitioner’s motion
for the appointment of counsel is denied with prejudice.
Petitioner’s Motion to Appoint Counsel (Dkt #17) is denied.
His Supplemental Renewed Motion and Declaration for the Appointment
of Counsel (Dkt #19) requesting a stay of the initial motion to
appoint counsel, and his Motion to Lift the Stay of the Motion for
Appointment of Counsel (Dkt #21), are dismissed as moot.
CONCLUSION
For the reasons stated above, the request for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 is denied, and the Petition
(Dkt #1) is dismissed. The Motion to Appoint Counsel (Dkt #17) is
denied
with
prejudice.
The
Supplemental
Renewed
Motion
and
Declaration for the Appointment of Counsel (Dkt #19) requesting a
stay, and the Motion to Lift the Stay of the Motion for Appointment
of Counsel (Dkt #21) are denied as moot.
Because Petitioner has failed to make a substantial showing of
a denial of a constitutional right, the Court declines to issue a
certificate of appealability. See 28 U.S.C. § 2253(c)(2).
SO ORDERED.
DATED:
S/Michael A. Telesca
___________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
January 17, 2018
Rochester, New York
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