Hamilton v. Lee

188 F.Supp.3d 221

Rohan Hamilton, Petitioner,

v.William Lee, Superintendent, Respondent.

13-CV-4336

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

Signed May 26, 2016

Appearances Rohan Hamilton, Lawrence Mark Stern.

William Lee, Superintendent, Green Haven Correctional Facility, Kenneth P. Thompson District Attorney By: Anthea Hemery Bruffee Edward John Purce Rhea Ann Grob Kings County DA's Office

Memorandum & Order

Jack B. Weinstein, Senior United States District Judge:

I. Introduction ...225

II. Fact and Procedural Background ...227

A. State Proceedings ...227

1. Criminal Case ...228

a) Duct Tape Evidence ...228

b) Additional Evidence ...228

c) Conviction ...228

2. Direct Appeal ...229

3. Motion to Vacate Conviction ...229

4. Coram Nobis Application ...229

B. Federal Proceedings ...230

1. Habeas Corpus Petition ...230

a) Denial of Right to Confront Witnesses ...230

b) Introduction of Perjured Testimony ...231

c) Introduction of False and Inflammatory Evidence ...231

d) Withholding of Brady Material ...231

e) Denial of Effective Assistance of Counsel ...231

f) Tape Unavailable ...232

2. Denial of Habeas Petition ...231

3. Appeal ...233

4. Retrieval and Examination of Tape ...233

III. Instant Rule 60(b) Motion ...233

A. Petitioner's Rule 60(b) Motion ...233

B. Re-examination of Tape by Petitioner's Expert ...233

C. Petitioner's Supplemental Letter ...234

D. Evidentiary Hearing Ordered ...235

E. Respondent's Opposition ...236

F. Tape Re-examination Ordered ...236

G. Additional Reports by Petitioner's Expert ...237

H. Re-examination of Tape by NYPD ...237

I. Evidentiary Hearing ...237

IV. Applicable Law ...238

A. Rule 60(b) Relief from a Judgment or Order ...238

1. Rule 60(b)(1): Mistake, Inadvertence, Surprise, or Excusable Neglect ...238

2. Rule 60(b)(2): Newly Discovered Evidence ...238

3. Rule 60(b)(6): Any Other Reason that Justifies Relief ...239

B. Rule 60(b) Motion or Successive Habeas Petition ...239C. Ineffective Assistance of Counsel ...240

V. Application of Law to Facts ...240

A. Motion Arises in Part Under Rule 60(b) ...240

1. Claims Relating to Newly Available Tape Evidence Allowed Under Rule 60(b) ...241

2. Remaining Claims Dismissed ...241

B. Motion is Timely ...242

C. Motion Fails on Merits ...242

1. 2005 Tape Examination ...243

a) Print Development ...243

b) Print Preservation ...244

c) Metadata ...248

2. No Missing "Photograph;" Digital Camera Used ...249

3. Print Image Cards Appropriate For Comparison ...251

4. 2016 Tape Re-examination ...252

a) Latent Print Durability ...252

b) Visible Ridge Detail ...253

c) Court's Own Observation ...255

d) Uncrumpling ...255

5. Petitioner's Admissions ...256

D. Ineffective Assistance of Counsel ...257

1. Claim Already Considered and Dismissed ...257

2. New Evidence Confirms Original Findings ...258

E. Adequacy of Rule 60(b) Hearing ...258

VI. Conclusion ...259

I. Introduction

This is a Rule 60(b) motion brought by Rohan Hamilton ("petitioner" or "movant") requesting relief from this court's judgment of March 27, 2015, which denied his habeas corpus petition. It is based primarily on his theory that Hurricane Sandy rendered unavailable key palm print evidence which would have proved his innocence. Sandy washed away many things, but not the evidence of petitioner's guilt.

Evidence of Hamilton's palm prints on duct tape used to tie the victim's ankles together was properly created, manipulated, compared, preserved, and authenticated by a modern digital system instead of traditional photography. Digital images of petitioner's palm print left on duct tape used to tie up the victim before she was shot, plus testimony, proved defendant guilty.

A digital image, properly produced and preserved, is the equivalent of a photograph. The use of digital archives is now a common practice across different fields. See, e.g. , Roger S. Bagnall, Materializing Ancient Documents , Daedalus (Spring 2016) at 79-81 (discussing the impact of digital databases on the study of ancient written artifacts).

Hamilton was convicted in state court of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree, in causing the death of Shanti Paschal, the mother of their child. See N.Y. Penal L. §§ 125.25(1), 265.03(2). In January 2007, he was sentenced to twenty-three years to life in prison and a lifetime term of post-release supervision on the murder charge, to run concurrently with fifteen years of imprisonment and five years of post-release supervision on the weapon charge.

The evidence against him included the testimony of his brother, his brother's wife and the victim's mother, as well as his palm print on a piece of duct tape recovered from the victim's body. An image of the developed latent print was introduced at trial. Petitioner elected to do no independent testing of the tape.

In his habeas petition before this court, Hamilton challenged the validity of the tape evidence. See infra Part II.B.1. The tape was not then available; it had been stored in a warehouse partially submerged by Hurricane Sandy. The court addressed the merits of petitioner's contentions without the then unavailable duct tape evidence. The petition was denied. The New York Police Department ("NYPD") was reminded of its "continuing obligation to produce the duct tape, and to expedite that production to the extent possible." Hamilton v. Lee , 94 F.Supp.3d 460, 481 (E.D.N.Y.2015).

The tape subsequently became available for examination. Petitioner's expert, Robert J. Garrett, conducted an inspection, using optical magnification and special light, in August 2015. He did not "observe" a latent palm print on the "crumpled" duct tape specimens recovered from the victim's body. In September 2015, petitioner filed the instant Rule 60(b) motion seeking reconsideration of the court's judgment denying his request for habeas relief. See Pet'r's Letter Mot. to Alter J., Sept. 29, 2015, ECF No. 92 ("Mot. to Alter J."); Report of Robert J. Garrett, Aug. 27, 2015, Ex. A to Mot. to Alter J., ECF No. 92-1 ("August 2015 Garrett Report").

Because of the unusual circumstances of the case, and in order to develop a complete factual record, the court ruled that petitioner's claims relating to the newly available duct tape evidence were properly raised in the context of a Rule 60(b) motion. An evidentiary hearing was ordered. The parties were directed to appear with qualified experts prepared to address, among other relevant issues: (1) if, and why, the latent print previously identified by the NYPD on the duct tape appeared to no longer be visible; (2) what kind of further examination, if any, could be carried out to determine whether there is, or was, a print on any part of available tape; and (3) any other issues raised by the parties. See Hamilton v. Lee , No. 13–CV–4336, 2015 WL 6955399, at *1 (E.D.N.Y. Nov. 10, 2015) (ECF No. 102).

Respondent opposed petitioner's Rule 60(b) motion. See Resp't's Letter in Opp'n to Mot. to Alter J., Nov. 23, 2015, ECF No. 105 ("Resp't's Opp'n Letter"). It enclosed a letter from Alynka Jean, the NYPD criminalist who originally developed the latent print from the duct tape in this case. Jean noted that: (1) future examination of the tape was possible; (2) the area on the tape where the latent print was originally developed was detectable because it was marked with the identifier "AJ#1;" and (3) re-examination might lead to more accurately observing print ridge detail present on the tape. See Letter from Alynka Jean to ADA Edward Purce, Nov. 17, 2015, ECF No. 105 ("Jean Letter").

In light of Jean's observations, and in order to allow the parties to present all possible evidence at a hearing, respondent was ordered to arrange for Jean or another expert to examine the tape to determine whether there is, or was, a print on any part of the available duct tape. See Order of Dec. 14, 2015, ECF No. 109, at 3.

An examination of the duct tape was conducted by respondent's forensic experts in January 2016. Petitioner's counsel, Laurence Stern, and print expert, Robert Garrett, were also present, together with NYPD personnel. See Police Lab Re-examination Report, Feb. 4, 2016, ECF No. 133.

At the heart of the instant Rule 60(b) motion is petitioner's contention that his trial attorney was ineffective because a reasonable doubt could have been raised as to whether his print was on the duct tape. See Hr'g Tr., Apr. 7, 2016, ECF No. 162, at 6:5-8. Argued is that: (1) the renewed examinations show no print on the tape; and (2) the image of the latent print developed in 2005, which was used to match petitioner's inked print exemplar taken at the time of his arrest, was not an "original" photograph. Petitioner suggests that because no "original file" was produced, the possibility exists that "there was manipulation or fakery of some sort here." Hr'g Tr., Apr. 8, 2016, ECF No. 171, at 161:1-3.

The parties have had ample opportunity to thoroughly address these issues through evidence, expert testimony, and extensive briefs. Petitioner's contentions are without merit. In the examination made for the Rule 60(b) motion, the NYPD experts were able to observe a "ridge detail" on the part of the tape where a palm print had originally been identified in 2005, marked with the identifier "AJ#1." See Police Lab Re-examination Report, Feb. 4, 2016, ECF No. 133.

Petitioner's expert initially disputed that such a detail was visible. At the hearing, photographs of the observed ridge detail were introduced by the parties and marked by Jean. See Hr'g Tr., Apr. 7, 2016, ECF No. 162, at 30:8-32:7; Resp't's Exs. 20T, 20Q (NYPD Photographs of Re-examined Tape); Pet'r's Exs. 27H, 27G (same). The ridge detail was visible to the court. See Hr'g Tr., Apr. 7, 2016, ECF No. 162, at 33:19-20. Although petitioner's expert stated that no "usable " print for comparison purposes was discernible on the tape, he conceded that the marked area observed by the court was "characteristic of ridge detail. " Id. at 32:21, 23, 33:21-23 (emphasis added).

The credible testimony of criminalist Jean established that...