Dearstyne v. Mazzuca

48 F.Supp.3d 222

Frank W. DEARSTYNE, Petitioner

v.William MAZZUCA, Superintendent, Fishkill Correctional Facility, Respondent.

No. 04–CV–741FJS/VEB.

United States District Court, N.D. New York.

Signed March 3, 2011.

James V. O'Gara, Kelley, Drye & Warren LLP, New York, NY, Lisa A. Peebles, Office of the Federal Public Defender, Syracuse, NY, for Petitioner.

Paul B. Lyons, Alyson J. Gill, Office of Attorney General, New York, NY, for Respondent.

REPORT AND RECOMMENDATION

BIANCHINI, United States Magistrate Judge.

Table of Contents

I.	Introduction	225
II.	Background	225

A.	Facts	226
B.	State Court Proceedings	226

1.	Pre–Trial Proceedings	226
2.	Trial Proceedings	227
3.	Appellate Proceedings	228

C. Federal Habeas Corpus Proceedings 229

III. Discussion 230

A. Ground One—Speedy Trial 231

1.	State Court Proceedings	231
2.	Habeas Review	233

a.	State Law Claim	233
b.	Federal Constitutional Claim	233

i.	Reason for the Delay	234
ii.	Petitioner's Delay in Asserting Claim	234
iii.	Lack of Prejudice	235

3. Ineffective Assistance of Trial Counsel 236

B. Ground Two—Admission of Petitioner's Statement to Police 238

1.	Factual Background	238
2.	State Court Proceedings	240
3.	Habeas Review	241

a.	Voluntariness of the Confession	241
b.	Failure to Comply with CPL § 710.60(6)	246

i.	State Court Proceedings and Rulings	246
ii.	The Trial Court's Failure to Adjudicate the Voluntariness Issue Was an Unreasonable Application of Clearly Established Supreme Court Law, Jackson v. Denno	248

C. Ground Three—DNA Evidence 252

1.	Factual Background	252
2.	Habeas Review	253

a. Brady Violation 253

i.	Exhaustion and Procedural Default	253
ii.	Merits Analysis	255

b.	Requests for DNA Testing	262
c.	Ineffective Assistance of Counsel—Failure to Seek Forensic Testing of the Fluid Sample	267
d.	Ineffective Assistance of Counsel—Failure to Object to Dr. Close's Testimony	269

D. Ground Four—Alleged Bias of Appellate Justice 269

1.	Factual Background	269
2.	State Court Proceedings	270
3.	Habeas Review	270

a.	Judicial Bias	270
b.	Ineffective Assistance of Appellate Counsel	272

E. Ground Five—Prosecutorial Misconduct 272

1.	Prosecution's Failure to Call H.O., T.O.'s Father	272
2.	Trial Counsel's Failure to Request Missing Witness Charge as to H.O.	274
3.	The Prosecution's Failure to Present Testimony of Expert Medical Witnesses	277
4.	Ineffective Assistance of Trial Counsel—Failure to Request Missing Witness Charge Regarding Medical Witnesses	278
5.	Violations of the Prosecution's Duty to Disclose Brady and Rosario Material	278

a.	Prosecution's Failure to Disclose Fluid Sample from T.O.	279
b.	Ineffective Assistance of Trial Counsel	279

6. Lack of Specificity Regarding Date of Offenses 280

a.	Factual Background	280
b.	State Court Proceedings	281
c.	Habeas Review	281

7.	Presentation of False Testimony	283
8.	Improper Summation Comments	285

a.	Factual Background	285
b.	State Court Proceedings	286
c.	Habeas Review	287

9.	Failure to File Timely Replies	289
10.	Failure to Disclose Potential Civil Action	290

F.	Ground Six—Discovery Manipulation	291
G.	Ground Seven—Jury Charge	291

1.	State Court Proceedings	292
2.	Habeas Review	293

a.	Clearly Established Supreme Court Precedent on the Definition of “Reasonable Doubt”	293
b.	Merits Analysis	296

H.	Ground Eight—Ineffective Assistance of Counsel—Failure to Protect Right to Testify at the Grand Jury	297
I.	Ground Nine—Improper Joinder and Failure of Trial Counsel to Request Severance	298

1.	New York Law Regarding Joinder	298
2.	Habeas Review	299

J.	Ground Ten—Violation of CPL § 60.20—Lack of Corroboration of the Testimony of an Unsworn Child Witness	301
K.	Ground Eleven—Ineffective Assistance of Counsel—Failure to Challenge the Indictment	302

1.	The Indictment	302
2.	State Court Proceedings	303
3.	Habeas Review	304

L. Ground Twelve—Ineffective Assistance of Counsel—Failure to Present Expert Testimony 305

1. False Confessions Expert 306

a.	State Court Proceedings	306
b.	Habeas Review	307

2. Medical Expert 308

a.	State Court Proceedings	308
b.	Habeas Review	309

i.	The “Performance” Prong of Strickland	309
ii.	The “Prejudice” Prong of Strickland	311

a.	Prejudice—Charges Involving T.O.	311
b.	Prejudice—Charges Involving C.C.	316

3. Behavioral/Psychological Expert 320

a.	State Court Proceedings	320
b.	Habeas Review	321

4. Failure to Seek DNA Testing 324

M. Ground Thirteen—Denial of Due Process—Post–Conviction Motions 324

1.	Subpoenas Duces Tecum	325
2.	County Law § 722–c Motion	325

N. Ground Fourteen—Due Process—Failure to Render Decisions in Accordance with Law 326

1.	Conclusory Claims	327
2.	Alleged Errors in Post–Conviction Proceedings	327
3.	Alleged Violations of State Law	328
4.	Judicial Misconduct	328
5.	Restated Claims	329

O. Ground Fifteen—Ineffective Assistance of Counsel 329

1. Claims Involving Attorney Grimmick 329

a.	Opening Statement	329
b.	Reconsideration of Huntley Decision	330
c.	Alibi Defense	330
d.	Pre–Trial Investigation	332
e.	Sufficiency of the Evidence	332
f.	Attorney Connors	333
g.	Arraignment	335
h.	Conflict of Interest	335
i.	Jury Foreperson	336
j.	Alibi Defense	337
k.	Sidebar Conferences	337
l.	False Testimony	339
m.	Remittal Hearing	339
n.	Ineffective Assistance Claims on Appeal	341
o.	“Extraneous” Issues on Appeal	342
p.	Federal Laws	342
q.	Leave to Appeal Application	342

2. Claims Involving Attorney Korkosz 342

a.	Verification	342
b.	Experts	343

3. Claims Involving Attorney Bauer 343

a.	Recusal of Appellate Justice	343
b.	Brief and Argument	343
c.	Application for Leave to Appeal	344

P. Ground Sixteen—Request for Leave to Amend 344

IV.	Conclusion	344
V.	Recommendations	346

I. INTRODUCTION

Petitioner Frank W. Dearstyne (“Dearstyne” or “Petitioner”) is an inmate at the Bare Hill Correctional Facility. In 1991, he was convicted in a New York State court of Attempted Rape in the First Degree, Aggravated Sexual Abuse in the First Degree, and two counts of Endangering the Welfare of a Child. Petitioner contends that his conviction was imposed in violation of his constitutional rights and should therefore be vacated.

The Honorable Norman A. Mordue, Chief United States District Judge, referred this matter to this Court for issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) regarding the disposition of Dearstyne's petition. (Docket No. 67). For the reasons that follow, it is recommended that the petition be granted in part and denied in part.

II. BACKGROUND

The factual and procedural history of this matter is lengthy and complex. The following is a brief summary. Further details are set forth in the discussion of Petitioner's claims for relief.

A. Facts

On June 13, 1987, M.O.¹ discovered blood in the underwear of her three-year old daughter, T.O. (TT Vol. 2, at 252).² T.O. was examined later that day by her pediatrician, Dr. Theodore Close. (TT Vol. 2, at 258). Following his examination, Dr. Close referred T.O. to the Child Sexual Abuse Clinic at the Albany Medical Center in Albany, New York. (TT Vol. 2, at 391–392). After examining T.O., the staff at the Albany Medical Center concluded that she had been sexually abused and contacted the Rensselaer Police Department. (TT Vol. 2, at 263).

Detective Frank Petrucci of the Rensselaer Police Department was assigned to investigate the case. (TT Vol. 2, at 23–24). Based upon interviews with T.O. and her family, Detective Petrucci, working with Patricia Donovan, a New York State Trooper assigned to a special rape task force, concluded that Petitioner, the sixteen-year-old son of T.O.'s babysitter, was the prime suspect. (TT, Vol. 2 at 86).

On June 19, 1987, Detective Petrucci and Trooper Donovan made arrangements to interrogate Petitioner at the state police barracks in Loudonville, New York. (TT, Vol. 2 at 51–52, 88, 130). After speaking with Petitioner's mother and obtaining her permission to speak with Petitioner, Petrucci and Donovan located Petitioner at the home of a family friend and transported him to the police barracks. (TT Vol. 2, at 34, 41).

Petitioner was interrogated at the Loudonville barracks by Trooper Donovan and Investigator Edmond W. Girtler. As discussed in detail below, the participants offer dramatically different accounts concerning the nature and conduct of the interrogation.

However, it is undisputed that, at the conclusion of the interrogation, Petitioner signed a written confession, in which he made a series of statements admitting sexual contact with T.O. (TT, Vol. 2 at 145, 168). Petitioner was arrested and charged with various sexual crimes involving T.O. (TT, Vol. 2 at 88–91, 122–23, 158).

Subsequent investigations and interviews led the police to conclude that Petitioner had sexually abused two other girls whose parents also used Petitioner's mother as a babysitter during the spring months of 1987—C.C., who was two years-old at the time, and her four-year-old sister, E.C.

B. State Court Proceedings

1. Pre–Trial Proceedings

Petitioner was arrested following his interrogation on June 19, 1987, and charged via felony complaint with Rape in the First Degree and two (2) counts of sexual abuse for crimes allegedly committed against T.O. On November 18, 1987, a Rensselaer County Grand Jury returned a ten-count indictment, charging Petitioner with sex-related offenses against the three victims, who were identified in the indictment under their first names, but will be identified in this report and recommendation as “T.O.”, “C.C.” and “E.C.”. Petitioner was arraigned on November 24, 1987.

On May 9, 1990, the Rensselaer County Court dismissed the indictment. As discussed in greater detail below, although the grand jury proceedings included videotaped testimony from two of the alleged victims, the prosecution never had that testimony transcribed by a stenographer, as required under § 190.32(6) of the New York Criminal Procedural Law (“CPL”). The court dismissed the indictment due to the prosecution's failure to comply with CPL § 190.32(6).³

On May 18, 1990, Petitioner was re-indicted when a Rensselaer County Grand Jury returned sealed Indictment Number C–8138, charging Petitioner with ten (10) crimes against the three (3) victims. With respect to...