Opinion
15 CV 9423 (PGG) (KNF)
06-21-2018
ROBERT SYMONDS, Petitioner, v. THOMAS GRIFFIN, SUPERINTENDENT OF THE GREEN HAVEN CORRECTIONAL FACILITY, Respondent.
HONORABLE PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
KEVIN NATHANIEL FOX, UNITED STATES MAGISTRATE JUDGE
INTRODUCTION
Robert Symonds (“Symonds”) brought a pro se petition for a writ of habeas corpus pursuant to 28-U.S.C. § 2254, challenging his conviction for second degree murder. Symonds asserts that the twelve-year delay between the crime and his arrest and prosecution deprived him of due process and that the state court erred in denying his motion to dismiss the indictment. Symonds also asserts that his conviction was based on insufficient evidence and that he was denied the effective assistance of trial counsel when counsel failed to file a motion to suppress evidence presented by the prosecution. The respondent opposes the petition.
BACKGROUND
On February 4, 1994, Louis Moscatelli (“Moscatelli”) was beaten and stabbed multiple times. Ralph Brown (“Brown”), Moscatelli's friend and roommate, found him lying face down in a pool of blood on the floor of his home at 2553 Tenbroeck Avenue, Bronx, New York. Brown checked to see if Moscatelli's heart was beating. He then went to the home of a neighbor, Robert Symonds Sr. (“Symonds Sr.”), the petitioner's father, who lived at 2559 Tenbroeck Avenue, to call 911. Brown returned to his home and, while he was waiting for an ambulance to arrive, observed Symonds Sr. assist the petitioner to a car. Symonds Sr. was supporting the petitioner, who appeared to be injured. The petitioner's hand was wrapped in a towel or cloth. Brown also observed that Symonds Sr. was carrying a canvas bag, which Brown thought looked like the type of bag one would use to carry knives.
Earlier in the evening, Carla Ferrante, a neighbor, heard fighting and arguing coming from the victim's house and heard a voice she recognized as belonging to the victim say, “Bob, stop hitting me ... I'll give you whatever you want.” When the police arrived, they observed a trail of blood drops leading from the victim's home to the home of Symonds Sr. At the victim's home, the police recovered a blood-stained ashtray and three drops of blood from the floor, which were marked for identification as SI, S2 and S3; the police also recovered a bath mat and shower curtain stained with blood from the home of Symonds Sr. In addition, the police took samples of blood drops found on the sidewalk between the two homes.
The police sought authorization from the Bronx County District Attorney's Office to arrest the petitioner but Assistant District Attorney Risa Sugarman (“Sugarman”), then chief of the homicide bureau, did not believe enough evidence to support the arrest existed at that time. It was then the policy of the police department to conduct DNA testing on evidence only if a suspect was in custody from whom a DNA sample could be obtained for comparison. Consequently, no DNA testing was performed in the instant matter in 1994, and the case became a “cold case.” In 2006, Detective Kevin Tracy (“Tracy”) of the New York City Police Department was assigned to the Moscatelli case. After interviewing witnesses, Tracy obtained arrest authorization from Assistant District Attorney Christine Scaccia and then procured a DNA sample from the petitioner. An analysis revealed that the blood sample designated S3, recovered from the victim's home, the blood drops found on the sidewalk between 2553 and 2559 Tenbroeck Avenue, and the blood recovered from the bath mat and shower curtain in the bathroom of 2559 Tenbroeck Avenue, all belonged to the petitioner.
Prior to trial, the petitioner filed a New York Criminal Procedure Law (“CPL”) § 30.20 motion seeking dismissal of the indictment on the ground that the twelve-year delay between the murder of Moscatelli and his arrest and prosecution had deprived him of his right to due process. A “Singer hearing” was held, see People v. Singer, 44 N.Y.2d 241, 405 N.Y.S.2d 17 (1978), at which Tracy, Sugarman, and an assistant director of the New York City Office of the Chief Medical Examiner (“OCME”), Mark Desire (“Desire”), testified. At the conclusion of the hearing, written arguments were submitted by the parties. On February 4, 2009, the court, applying New York law, as set forth in People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79 (1975), denied Symonds' CPL § 30.20 motion.
CPL § 30.20 provides, in pertinent part: “1. After a criminal action is commenced, the defendant is entitled to a speedy trial.”
In People v. Singer, the New York Court of Appeals held that where commencement of an action has been delayed for a lengthy period, without good cause, the defendant may be entitled to a dismissal and that the People have the burden of establishing good cause for the delay. The court also held that “[p]reindictment delay ... is governed by the due process clause which generally requires a showing of actual prejudice before dismissal would be warranted.” Id., at 252,405 N.Y.S.2d at 24. '" ‘
“The following factors should be examined in balancing the merits of an assertion that there has been a denial of defendant's right to a speedy trial: (1) the extent of the delay; (2) the reason for the delay; (3) the nature of the underlying charge; (4) whether or not there has been an extended period of pretrial incarceration; and (5) whether or not there is any indication that the defense has been impaired by reason of the delay.” Taranovich, 37 N.Y.2d at 445, 373 N.Y.S.2d at 81-82.
On November 17, 2009, Symonds was convicted, after a jury trial, in the New York State Supreme Court, Bronx County, for second degree murder and sentenced to an indeterminate term of imprisonment of from twenty-five years to life. On February 6, 2014, the New York State Supreme Court, Appellate Division, First Department, affirmed Symonds' conviction unanimously, finding that: (a) the “verdict was based on legally sufficient evidence and was not against the weight of the evidence,” (b) the defendant's “assertion that the DNA evidence against him could have been the product of crime scene contamination” was speculative; and (c) “there was additional circumstantial evidence connecting” Symonds to the crime. Additionally, the Appellate Division found that the trial court declined properly to dismiss the indictment on the ground of pre-arrest delay stating that “[although the delay was lengthy, it was satisfactorily explained and was a permissible exercise of prosecutorial discretion.”
On March 14, 2013, Symonds moved, pursuant to CPL § 440.10, for an order vacating his judgment of conviction. Symonds alleged that a 1996 lab accreditation report constituted newly discovered evidence undermining the chain of custody of the physical evidence used at trial and contradicted the testimony of the prosecution's witnesses. He also alleged that trial counsel was ineffective in not seeking and using the alleged newly-discovered evidence at trial. On September 3, 2013, the New York State Supreme Court, Bronx County, denied Symonds' CPL § 440.10 application, rejecting his newly discovered evidence claim and finding that trial counsel provided him with meaningful and effective representation. Symonds' application for leave to appeal the denial of his CPL § 440.10 motion was denied on November 4, 2013. Symonds was denied leave to appeal to the New York Court of Appeals on August 28, 2014. Symonds filed the instant petition for a writ of habeas corpus timely, on November 25, 2015.
Symonds' petition was signed by him on November 25, 2015, and received by the Pro Se Office of this court on November 30, 2015. Applying the prison mailbox rule, Symonds' petition was filed timely, that is, within one year of the date (November 27, 2014) on which his conviction because final. See 28 U.S.C. § 2244(d); Fernandez v. Artuz, 175 F.Supp.2d 682, 686-87 (S.D.N.Y. 2001)(citing Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379 (1988)).
Petitioner's Contentions
Symonds contends that the “Appellate Division rendered a decision that was based on an unreasonable application of clearly established federal law, when it held that the 12 year delay between the killing of.. . Moscatelli and petitioner's indictment was lengthy [but] ... was satisfactorily explained and was a permissible exercise of prosecutorial discretion.” On the contrary, Symonds maintains, in this case, pretrial delay denied him his Sixth Amendment right to a speedy trial. Symonds contends that “not only can [he] demonstrate that he suffered actual prejudice as the result of the prosecution's delay . .. but... he will demonstrate that the decision rendered by the Appellate Division was an objectively unreasonable application” of the Supreme Court's ruling in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182 (1972). According to Symonds, the “cause of the delay in prosecuting this case was the failure of the police and/or prosecution to further the investigation by requesting DNA testing of the blood trail leading from Moscatelli's house to petitioner's bathroom.” The police had identified him as a suspect in 1994, he contends, and could have requested the same DNA testing that was performed in 2006. “In petitioner's case, after the crime scene was examined, the next logical step would have been to perform DNA tests on the blood trailing from the victim's house to petitioner's bathroom, two doors away. DNA testing was available to the police upon request and they clearly had a suspect who made himself available through his attorney.” Thus, he maintains, his case is like other cases in which “courts have found no good reason for the pre-indictment delay” rather than cases in which “the delay was found to have resulted from legitimate exercises of prosecutorial discretion.” Hence, he argues, in this case, “dismissal was the appropriate remedy.”
Symonds contends, further, that he was prejudiced by the pre-indictment delay in this case because: (1) in the second statement taken from Symonds Sr., he stated that his son, who was in the house at 2553 Tenbroeck Avenue when Moscatelli was stabbed, told him that three other men were in the house and that petitioner was cut on the fingers and leg before he ran out and hid behind his father's car; Symonds argues that, at the least, this statement indicates that three potential witnesses existed who were in the victim's house at the time he was killed and the petitioner may have been attacked himself; (2) a police report prepared by the detective who was in charge of the investigation noted that, according to a neighbor, at some time between 2:30 p.m. and 3:00 p.m., on February 4, 1994, he observed two men get out of a car and observed one man enter the victim's home. This, petitioner argues, in combination with other testimony at trial, suggests that a significant amount of drug-related activity was going on at the victim's home and the victim was likely killed by someone with a strong motive rather than by the son of the next door neighbor; and (3) his father, who may have been able to provide relevant exculpatory information about the incident, died in 1997 and, thus, could not testify at trial.
Symonds also contends that the Appellate Division “rendered a decision that was an unreasonable application of clearly established federal law when it held that the verdict was based on legally sufficient evidence.” Symonds notes that a habeas corpus petitioner challenging the sufficiency of the evidence underlying his conviction bears a “‘very heavy burden.' Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995)... [however] petitioner contends that he has met that ‘very heavy burden.'” Thus, “[f]or starters, no one saw petitioner enter or leave .. . Moscatelli's house on the day . . . [he] was murdered. The only evidence that connected petitioner to the crime scene was his DNA which was found in a small sample of blood discovered just inside ... Moscatelli's front door. However, petitioner's father, who lived two doors away was friendly with Moscatelli and therefore it was entirely possible that petitioner might have entered . . . Moscatelli s house at any time during petitioner's two-week stay with his father, for any number of reasons.”
Symonds argues that the “evidence at trial also raised the distinct possibility that the presence of petitioner's DNA in . .. Moscatelli's house was the result of accidental contamination of the crime scene by police personnel, who tramped through both petitioner's father's house and . . . Moscatelli's house after the crime occurred, on the day of the incident.” The petitioner points out that “[t]he evidence showed that petitioner had been cut and bled in the bathroom at his father's house, that he bled on the floor in the bathtub area, and that various police personnel entered this bathroom and then went to the crime scene next door. Notably none of Moscatelli's blood, which was all over the crime scene, was found in petitioner's father's house, as would be expected had petitioner committed the crime before returning there.”
Symonds contends, further, that “Detective Michael Guedes testified that he and other officers entered petitioner's father's house on February 4, 1994, and saw blood in the bathroom. He and other officers entered the crime scene ... no one was wearing any protective gear or footwear to prevent contamination of the crime scene.”
Thus, according to Symonds, “because the evidence and testimony in this case clearly permitted the reasonable inferences that petitioner cut himself in the bathroom at his father's house, that petitioner's blood was deposited at the crime scene as a result of contamination by police personnel at some point after the incident, when police went between the two houses, and that the blood trail on the sidewalk was created by Brown, the People failed to prove petitioner's guilt beyond a reasonable doubt.” Accordingly, he maintains, his conviction should be reversed.
Symonds also argues that the instant petition should be granted because his “trial counsel was ineffective when he failed to file a motion to suppress evidence and investigate” the case.
Thus, according to Symonds, “trial counsel informed the jury during his opening statement about the procedures that had to be followed [in establishing a chain of custody of blood samples] ... [but] failed to take the necessary steps to obtain documents for the purpose of contradicting the prosecution[']s witnesses in connection with such procedures.”
Moreover, Symonds asserts, “while counsel sought and obtained the accreditation report for 2006, when petitioner's blood was extracted to allow him to access the steps police were to take in establishing [a] chain of custody, counsel inexplicably failed to give such concern to the 1994 blood sample.” However, “had counsel sought the 1994 accreditation report, he would have obtained documentation providing him with relevant information to seek and win suppression of the People's evidence, i.e., the 1994 blood sample.” Furthermore, according to Symonds, “it cannot be said that trial counsel's omission was trial strategy, since he had everything to gain and nothing to lose in investigating and filing a motion to suppress the People's evidence.” Consequently, Symonds contends, the court should grant the writ and order a new trial.
Respondent's Contentions
The respondent contends that the Appellate Division found, correctly, that the state court's denial of Symonds' motion to dismiss the indictment on the ground of pre-indictment delay was proper and, hence, that its decision on this point was neither contrary to, nor an unreasonable application of, Supreme Court precedent as set forth in Barker and its progeny. Specifically, the respondent argues, the Appellate Division found, correctly, that: (a) “although the delay was lengthy, it was satisfactorily explained and was a permissible exercise of prosecutorial discretion;” and (b) Symonds' “claim that he was prejudiced by [the] delay [was] unpersuasive.”
Noting that the “crux of petitioner's claim is that in 1994 the police had identified him as a suspect and could have requested the same DNA testing that was later performed in 2006,” the respondent asserts that this argument “rests on an erroneous conflation of what was technologically possible in 1994, and what was reasonable, given institutional policies and norms surrounding that technology.” In this case, the respondent points out, “the delay in prosecution rested on a reasonable basis and was not designed to gain a tactical advantage.”
According to the respondent, the state court held a full hearing to resolve the issue whether Sugarman, then the chief of the homicide bureau in Bronx County, reasonably exercised prosecutorial discretion in determining that the evidence of Symonds' guilt was circumstantial and was insufficient to present to the grand jury. The court found that Sugarman's decision not to arrest Symonds and order DNA testing was “reasonable” given her belief, in 1994, that: (a) DNA testing was unavailable in the absence of a sample from a known suspect, (b) the OCME was not conducting DNA testing, (c) private testing was very costly, (d) thousands of requests for testing were being made from across New York, (e) hundreds of homicides were being committed in the Bronx every year, and (f) other evidence in the case was circumstantial. However, by 2004, when “Tracy began investigating this cold case, these considerations were no longer relevant to the question of whether to order DNA testing due to changes in technology, changes in institutional policies, and changes in investigative methods.” Thus, the decision “to forgo DNA testing in the absence of a suspect's sample in light of all the other attendant circumstances was a reasonable exercise of prosecutorial discretion resting on a good faith basis.” Consequently, the respondent maintains, the Appellate Division's decision regarding this finding was reasonable and, in any event, no evidence exists that anyone delayed the prosecution intentionally in order to gain a tactical advantage or simply neglected the case for no reason.
Moreover, the respondent asserts, no evidence exists that the defense was prejudiced by the delay. The petitioner argues that he was prejudiced by the pre-indictment delay because, in the second statement taken from his father, Symonds Sr., he stated that his son, who was in the house at 2553 Tenbroeck Avenue when Moscatelli was stabbed, told him that three other men were in the house and that the petitioner was cut on the fingers and leg before he ran out and hid behind his father's car; at the least, this statement indicates that there were three potential witnesses in the victim's house at the time he was killed and petitioner may have been attacked himself. The petitioner also claims that he was prejudiced because his father, who may have had relevant information, died in 1997, before he could testify at trial.
However, the respondent argues, Symonds' father's statement is hearsay and speculative; the petitioner cannot name these phantom witnesses; indeed, the source of information concerning these witnesses was petitioner himself who was able to participate in his defense in 2006. Moreover, the information concerning these witnesses was located in a report written by a police officer concerning a statement by petitioner's own father of information that petitioner had provided to him. Thus, the claim of prejudice is based on self-serving statements of Symonds himself.
Secondly, a police report by the detective who investigated the case at the time noted that, according to a neighbor, at some time between 2:30 p.m. and 3:00 p.m. on February 4, 1994, he observed two men get out of a car and observed one man enter the victim's home. This, petitioner argues, in combination with other testimony at trial, suggests that a significant amount of drug-related activity was going on at the victim's home and the victim was likely killed by someone with a strong motive rather than by the son of the next door neighbor. In assessing this claim the respondent notes that the suggestion that the victim was killed in connection with drug-related activity was purely speculative. Hence, the respondent contends, Symonds' claim that he was prejudiced by pre-indictment delay in prosecuting the case is baseless.
The respondent also contends that the petitioner's claim that legally insufficient evidence exists to sustain his conviction for second degree murder, based on his allegation that the DNA evidence was the only evidence connecting him to the crime scene and was itself the result of contamination, is unfounded. Rather, the Appellate Division's determination that: (i) the verdict was based on legally sufficient evidence and was not against the weight of the evidence, and (ii) the petitioner's assertion that the DNA evidence against him could have been the product of crime-scene contamination is speculative, did not exhibit an unreasonable application of Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789 (1979).
The respondent contends that the testimonial and physical evidence against Symonds was “straightforward and conclusive” and “easily establish[ed] petitioner's guilt.” According to the respondent, “given the nature of the crime, it is reasonable to conclude that the presence of petitioner's blood in the victim's home, found in the wake of a gruesome murder, was inculpatory.” Also, the petitioner's “attempt to cast doubt on the evidence rests entirely on speculation and is undermined by the record. The testimony at trial supported a finding that petitioner's blood on the cement walkway and in the victim's home was in the form of drops caused by someone bleeding- not from smears or footprints from cross contamination.” Hence, the respondent maintains, “viewed in its totality, the evidence in this case was very strong and supported a finding of the petitioner's guilt beyond a reasonable doubt.”
In addressing Symonds' third claim, namely, that he was denied the effective assistance of trial counsel, the respondent notes that the state court rejected this claim on the merits, finding that the petitioner failed to establish that trial counsel's performance fell below an objective standard of reasonableness and that he suffered prejudice as a result. “To the extent that petitioner's claim can be construed as a failure to obtain or utilize a lab accreditation report from 1994, when serological evidence was collected, this claim is meritless.” This is so because “the OCME lab was not accredited until 1995, [thus] any attempt by counsel to procure an accreditation report from 1994 would have been fruitless.” Further, the respondent maintains, “the record demonstrates that counsel aggressively and continuously challenged the chain of custody of various pieces of evidence throughout the trial. Indeed, the primary theory of the defense at trial was that improper evidence gathering and storage undermined the strength of the DNA evidence that linked petitioner to the crime scene.” As a result, the respondent notes, “the motion court found that ‘trial counsel mounted an aggressive, robust and detailed attack on the serological evidence which the People claimed connected [petitioner] to the murder.'” Thus, the respondent concludes, the state court's finding that the petitioner received the effective assistance of counsel was not contrary to or an unreasonable application of Supreme Court precedent.
Petitioner's Reply
Petitioner rejects the respondent's “foray of excuses” for the decision by the prosecution to, among other things, forgo DNA testing in 1994. Asserting that DNA testing was readily available in 1994 and that Sugarman was familiar with its use, the petitioner contends that “her decision to not proceed with DNA testing is not only unexplainable, but directly undermines the claim that the delay was justified.” The petitioner also contends that he was prejudiced by the delay because, inter alia, his most important witness, Symonds Sr., died before Symonds was arrested and, thus, was unable to testify at trial and provide the jury with important exculpatory evidence. In response to the respondent's opposition to Symonds' claim that insufficient evidence to convict him of murder beyond a reasonable doubt exists, Symonds asserts that not “an iota of evidence [existed] ... to substantiate the required showing” that petitioner acted with intent to cause the victim's death and, in fact, caused his death. As to Symonds' claim of ineffective assistance of trial counsel, his reply essentially reiterates his assertion that “the trial and appellate courts' conclusion that trial-counsel's assistance was effective or otherwise meaningful, was not only wrong, but contrary to and an unreasonable application” of the standards set forth in the relevant Supreme Court precedent.
DISCUSSION
Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides: “The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim - (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d).
A state-court decision is contrary to clearly established Supreme Court precedent if its conclusion on a question of law is “opposite to that reached by [the Supreme] Court,” or if the state court reaches a conclusion different from that of the Supreme Court “on a set of materially indistinguishable facts.” Williams v, Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 1523 (2000). A state-court decision involves an unreasonable application of clearly established federal law if “the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case,” or “if the state court either unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Id. at 407, 120 S.Ct. at 1520. “[A] determination of a factual issue made by a State court shall be presumed to be correct.” 28 U.S.C. § 2254 (e)(1). “AEPDA . . . imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766, 773, 130 S.Ct. 1855, 1862 (2010) (internal citations and quotation marks omitted). AEDPA requires a petitioner to exhaust all remedies available in the state courts. See 28 U.S.C. § 2254(b)(1)(A).
Pre-Indictment Delay
“It is indisputable that the Sixth Amendment speedy trial right does not apply to pre-indictment delay.” United States v. Elsbery, 602 F.2d 1054, 1058 (2d Cir. 1979) (citing United States v. Marion, 404 U.S. 307, 92 S.Ct. 455 (1971)). Rather, a “claim based upon pre-indictment delay must rest.. . upon the Due Process Clause.” Id. at 1059 (citing United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044 (1977)). Thus, under the circumstances, Symonds' reliance on, inter alia, Barker, 407 U.S. at 530, 92 S.Ct. at 2192 (applying the Sixth Amendment's speedy trial clause to a case involving a post-indictment delay), is misplaced.
“[I]t is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.” Thus, while “[i]nvocation of the speedy trial provision .. . need not await indictment, information, or other formal charge ... we decline to extend that reach of the amendment to the period prior to arrest. Until this event occurs, a citizen suffers no restraints on his liberty and is not the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer.” Marion, 404 U.S. at 320-21, 92 S.Ct. at 463-64.
“In order to establish a due process violation stemming from pre-indictment delay, a defendant bears the heavy burden of demonstrating that the delay caused both ‘actual prejudice to the defendant's right to a fair trial and unjustifiable Government conduct.'” Figueroa v. Donnelly, No. 02 Civ. 6259, 2003 WL 21146651, at *5 (S.D.N.Y. May 16, 2003) (quoting Elsbery, 602 F.2d at 1059). “The standard for demonstrating ‘actual prejudice' is fairly stringent, as ‘ [t]he dimming of memories with the passage of time, without more, does not create actual substantial prejudice to the right to a fair trial which would warrant dismissal of a case for pre-indictment delay.'” Id. (quoting United States v. Harrison, 764 F.Supp. 29, 32 (S.D.N.Y. 1991)).
In this case, the state court determined, correctly, that Symonds failed to demonstrate a violation of due process as a result of the delay between the commission of the crime of second degree murder and his indictment. On this issue, the Appellate Division found that: “After a thorough hearing, the motion court properly declined to dismiss the indictment on the ground of pre-arrest delay. Although the delay was lengthy, it was satisfactorily explained and was a permissible exercise of prosecutorial discretion. We find defendant's claim that he was prejudiced by the delay unpersuasive.”
This finding is consistent with the arguments presented on habeas corpus review.
Symonds was unable to show that the decision made by the district attorney in this case, at the time ot the murder, to forgo DNA testing was unreasonable under the circumstances, including that, in 1994, DNA testing was considered to be unavailable in the absence of a sample specimen from a known suspect and the other evidence in the case was circumstantial. Moreover, no evidence exists in this case that the prosecution was delayed purposely or that the case was neglected for no reason. Therefore, the prosecution fulfilled its burden of proving that the delay in seeking an indictment was not a conscious effort to gain a tactical advantage.
In addition, Symonds was unable to establish that he was prejudiced by the delay. Symonds maintains that he was prejudiced because, among other things, his father, who may have been able to provide relevant exculpatory information about the incident, died in 1997 and, therefore, could not testify at trial. However, as noted above, the reported statements of Symonds Sr. concerning potential witnesses and drug-related activity in the victim's home would have been excluded at trial; moreover, in any case, it appears that Symonds himself was the source of the alleged exculpatory statements. Therefore, for these reasons, Symonds has failed to establish that he was denied his right to due process as a result of pre-indictment delay.
Insufficient Evidence
“[A] federal habeas court may review a claim that the evidence adduced at a state trial was not sufficient to convict a criminal defendant beyond a reasonable doubt.” Herrera v. Collins, 506 U.S. 390, 401, 113 S.Ct. 853, 861 (1993). In determining whether a conviction is supported by sufficient evidence, “the relevant question 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. at 319, 99 S.Ct. at 2789. Symonds' insufficiency of the evidence claim is meritless. His contention that legally sufficient evidence does not exist to sustain his conviction for second degree murder, based on his allegation that the DNA evidence was the only evidence that connected him to the crime scene and was itself the result of contamination of the crime scene, is without merit. As the Appellate Division found, “[t]he verdict was based on legally sufficient evidence and was not against the weight of the evidence. Defendant's assertion that the DNA evidence against him could have been the product of crime scene contamination is speculative. Moreover, there was additional circumstantial evidence connecting defendant to the crime.”
Among other things, evidence of the petitioner's guilt included: (a) the presence of the petitioner's blood in the victim's home following a brutal murder; (b) the fact that the blood found at the crime scene was in the form of drops caused by someone bleeding rather than in the form of smears or footprints, which would suggest contamination of the crime scene; (c) Brown's observation of Symonds Sr. helping Symonds to his car while Symonds had trouble walking and had a cloth wrapped around his hand; (d) Brown's characterization of the type of bag carried by Symonds Sr. as a canvas bag of a type used to carry knives; (e) the statement of the neighbor who reported hearing a voice she recognized as belonging to the victim refer to “Bob”; and (f) the fact that blood containing the petitioner's DNA was found in the home of the petitioner's father, and on the sidewalk between the two houses as well as in the victim's home.
Taking into consideration these factors, and viewing the evidence in the light most favorable to the prosecution, the Court finds that a rational trier of fact could have found the essential elements of the crime with which Symonds was charged, beyond a reasonable doubt. Therefore, Symonds cannot obtain habeas corpus relief based on his claim of insufficient evidence.
Ineffective Assistance of Counsel
To obtain relief on an ineffective assistance of counsel claim, a habeas corpus petitioner must establish that his counsel's performance was: (1) deficient, such that “in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance,” Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066 (1984); and (2) prejudicial so 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, 104 S.Ct. at 2068. Symonds' claim of ineffective assistance of trial counsel is without merit. As noted above, this claim was raised in the context of Symonds' CPL § 440.10 motion for an order vacating his judgment of conviction. As the respondent points out, the motion court rejected this claim on the merits, finding that petitioner failed to establish that trial counsel's performance fell below an objective standard of reasonableness and that he suffered prejudice as a result. The motion court found that “trial counsel mounted an aggressive, robust and detailed attack on the serological evidence which the People claimed connected defendant to the murder.” Symonds has failed to rebut the presumption that his trial counsel's performance fell within the wide range of reasonable professional assistance because he did not provide any evidence to substantiate his contention that his trial counsel failed to make a motion to suppress evidence and investigate the case for the purpose of contradicting the prosecution's witnesses. Under the circumstances, the Court finds that the record does not indicate that counsel's performance was deficient, such that it fell outside the sphere of professionally competent assistance. Thus, habeas corpus relief is not warranted on this claim.
RECOMMENDATION
For the reasons set forth above, I recommend that Symonds' petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, be denied.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Paul G. Gardephe, 40 Centre Street, New York, New York, 10007, Room 2204, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 425, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Gardephe. Failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003).