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Faeth v. Conway

July 7, 2009


The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge


I. Introduction

Pro se petitioner Christopher Faeth ("Faeth" or "petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a state court judgment convicting him of depraved indifference murder and forcible robbery. See Docket No. 1. The parties consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1). After respondent answered the petition, Faeth moved for and was granted permission to file an amended petition. See Docket No. 29. As a sanction for non-compliance with this Court's scheduling orders directing it to respond to the amended petition, respondent was precluded from filing an answer to the amended petition. Accordingly, the pleadings relevant to this Court's consideration are Faeth's amended petition and respondent's answer to the original petition.

For the reasons that follow, the Court finds that habeas relief is not warranted. Accordingly, the petition is dismissed.

II. Factual Background and Procedural History

A. Overview

Faeth initially was charged in Wayne County Court with three counts of second degree murder under three theories (intentional murder, depraved indifference, felony murder) and first degree (forcible) robbery, in connection with the death of Randolph Markel on the night of August 29, 1999. Faeth and Markel met while both attending an open music festival being held at some camping grounds in Macedon, a rural town in Wayne County. Markel, petitioner, and a number of the witnesses had all been using drugs (crack cocaine and/or marijuana) before and after the incident. Petitioner had been selling crack cocaine to various people and was upset that someone saw him making a drug sale. There was also evidence that he had a verbal confrontation with the victim at some point. It was alleged that Faeth followed Markel into the woods, confronted him, beat him with some kind of blunt object. Faeth then placed the unconscious Markel on some nearby railroad tracks, where he was hit by an oncoming train. When Markel was found, he was still alive but one of his legs had been severed at the thigh by the impact. He subsequently died from his injuries en route to the hospital.

B. The Prosecution's Case

At trial, the prosecution presented testimony from a number of petitioner's friends or acquaintances (Stephanie Nesbitt, Ron Alessi, Bobbe Hackett, and Lewis Hackett) who had been with him at the festival and had seen him with the decedent at various times. Several of these witnesses also testified to admissions that petitioner had made to them that he had killed Markel.

Nesbitt was romantically involved with petitioner in July and August 1999; the last time she saw him was the night of the murder. She, along with petitioner, Bobbe Hackett, Lewis Hackett, Ron Alessi, and several other friends, attended the music festival and had a campsite together. Between 5 p.m. and 1:30 a.m., she and petitioner bought and smoked crack cocaine on a number of occasions. See T.227-31, 202-03, 230, 203-06, 231, 246-49. Nesbitt also saw Faeth sell crack cocaine all night. T.210, 235, 245-46, 289-90. Faeth made $20-sales of crack to 6 to 10 people that evening. See id.

Nesbitt did not know the decedent, but she did see him at the festival. He appeared to be intoxicated and was acting "very happy" and sociable. She did not see petitioner and decedent together that night.

Bobbe Hackett was another heavy user of crack cocaine. In the past, she had purchased crack from petitioner and also had been given crack for free by him. T.419-20, 485-86. She testified consistently with Nesbitt about their group's multiple purchases of crack cocaine and their drug-use throughout the evening. See T.376, 385, 447-49, 460-61.

Bobbe testified that sometime before midnight, she met the victim for the first time.

T.378-79, 465-66. He was intoxicated, and they nicknamed him "the happy guy." T.379, 433, 486; see also T.501. Bobbe did not do any drugs with the victim, whom she saw three or four more times that night. At around 12:15 a.m., Bobbe saw the victim speaking with petitioner.

T.380. She overheard petitioner say to him, "Fuck you." Id. The victim replied, "No, I don't like liars." T.380. The victim then walked away. Id.

Ten to twenty minutes after that exchange, Bobbe heard petitioner say, "I am going to get firewood," and saw him walk into the woods with a flashlight. T.382. Bobbe heard the sound of what she described as animals wrestling around with each other about ten minutes after petitioner went into the woods, and saw a flashlight move from left to right. T.382, 488.

However, Bobbe did not hear anyone say anything. T.383, 489-90. Like Bobbe, Nesbitt heard rustling in the woods that sounded as if people or animals were wrestling around. T.214-17, 293. Nesbitt also saw a flashlight moving back and forth from one side of the trail to the other. T.214-17, 283, 285-86.

Bobbe testified that petitioner was gone for about fifteen to twenty minutes; he returned to the campsite about five minutes after she heard the rustling noises. T.382-84. Bobbe and Nesbitt recalled that petitioner was carrying what appeared to be bushes or a small tree, and appeared to be pumped up from adrenaline; he roared as he threw the tree onto the campfire.

T.384, 487, 217-18, 310. When petitioner came back, Nesbitt said, he did not have the black and yellow flashlight that he had when he went into the woods. T.306. Nesbitt asked petitioner why he was smiling, and petitioner said that he would tell her later. T.217.

Bobbe's brother, Lewis Hackett, also saw petitioner with decedent that night. He was sitting around at the campsite with Bobbe and Alessi when petitioner went into the woods by himself. T.511. Lewis recalled that petitioner announced, "I got to do the deed" before he walked into the woods. Id. About twenty minutes later, petitioner returned, carrying a small tree. As he threw the tree onto the fire Lewis said that petitioner roared like a lion, as if he was all pumped up full of energy. T.512.

Ron Alessi was a longtime user of drugs, including marijuana and crack cocaine, and had a criminal history of theft offenses and drug crimes. He attended the festival with Nesbitt, petitioner, Bobbe, and the others. Alessi bought and smoked crack cocaine with petitioner on a number of occasions at the festival, and gave marijuana to petitioner as well. T.321-22, 324-25, 329, 334-, 349, 361. Alessi also saw petitioner make a $20-sale of crack cocaine. T.328-330.

Sometime between midnight and 1 a..m., Alessi met the victim at the festival, and they smoked marijuana together. T.330-31, 347, 356. According to Alessi, the victim kept his marijuana in his front pocket, packaged in small, clear bags "pillow bags" that were white on top. T.331-32. When the victim pulled the drugs out from his front pocket, Alessi observed that he also pulled out cash. T.332.

Alessi also observed petitioner and the victim talking together for about five minutes.

T.334-47. This was just around the time that petitioner went into the woods for the first time T.335-36. Alessi recalled that petitioner made several trips to get firewood. The last time, which was before the train stopped, petitioner said that "it was time to do the deed." T.404-05. Petitioner took a flashlight with him, which Alessi thought was black and yellow. T.356. Alessi also recalled that petitioner "throwing a tree into the fire and yelling something" when he returned from the woods. T.334-35.

Alessi testified that when petitioner returned with the firewood, he saw that petitioner had marijuana packaged in a"pillow bags" with a white top, similar to what he had seen in the victim's possession earlier. T.338. Alessi said that it was not the same marijuana he had given to petitioner. T.338. Alessi did not ask petitioner where he had gotten it.

Bobbe, Lewis Hackett, and Nesbitt all recalled hearing the train stop at around 5:30 a.m., and someone who had been walking along the tracks ran up and said that a person had been hit by the train and his leg was gone. T.517-18; see also T.388, 218-220. Petitioner asked, "What did you find, a body up there?" T.388.

Upon hearing of the accident, Lewis and Alessi were going to walk up to the tracks to see if they could help, but petitioner began yelling that he wanted to leave because the police were coming. T.517-18. Lewis said that petitioner was urging Bobbe to leave, saying, "Let's go, let's go." T.517-18; T.388. Bobbe testified that petitioner appeared frantic and wanted to go immediately. T.389. People were yelling that the police were coming. T.342. Bobbe, Nesbitt, Alessi, and petitioner left together shortly thereafter and went back to Bobbe's house. T.518-19; T. 388-89.

Nesbitt testified that when the person ran up and announced there was a body on the tracks, petitioner turned to her and said, "I killed him." T.218-20, 280, 283. She replied, "What do you mean, you killed him?" Id. Petitioner said, "I killed the happy guy," which was the nickname their group had given to Markel because he appeared so happy at the festival. T.219. No one else heard petitioner make this admission to her. Petitioner told Nesbitt that he knocked the victim out, threw him on the train tracks, and took $100 and some marijuana from him.

T.218-20. According to Nesbitt, petitioner said that he killed Markel because Markel had seen him make a drug deal. T.218-20.

Nobody in petitioner's group went up to see the body on the tracks. Alessi testified that when they were at Bobbe's house, petitioner told him that Nesbitt "was mad at him because she thought that he was the one that punched the guy out and put him on the tracks." T.340, 360. He also saw that petitioner had about $80 in $20-bills. T.340, 359.

Bobbe testified that at about 6:30 a.m., she went to a convenience store. T.390. When she returned, she asked petitioner why he did not want her to go up to the tracks. He replied that she "didn't need to see what [he] did back there." T.390-91. Not wanting to upset petitioner, Bobbe commented that he had committed the perfect crime. Petitioner told her that it must have been "the happy guy" or a person named Ben who had gotten hit. T.440-41, 486. When Bobbe asked petitioner how he knew it was "the happy guy," petitioner "smirked." T.391, 486. Nesbitt asked petitioner if that bothered him at all. T.394. Petitioner laughed and said, "Yeah, it is just tearing me up." T.221-22, 276.

Ryan Howie was the person who discovered the body. Howie also had attended the festival but was unacquainted with petitioner and his group. Howie was walking along the railroad tracks and heard some gasping noises that "didn't sound right" coming from the near the tracks. T. 561-562. Walking closer to the sound, he discovered the victim's body lying face up between the railroad tracks. T.563. He noticed that the victim's leg had been severed, but he did not see the leg. T. 563-564. According to Howie, the victim was conscious but was "pretty much dying." T. 564. Howie got one of his friends to help him move the body off the tracks. He ran back to the camping area yelling for a cell phone; however, no one could give him one, so he ran to a gas station to call for help.

David Kelly, one of the individuals from the rescue squad, testified that when he arrived at the scene, the victim was still alive. T.494, 499. By the time they arrived at the hospital at 6:27 a.m., Kelly stated, the victim was dead. T.496-97.

Investigator Robert Hetzke ("Inv. Hetzke") testified regarding his investigation of the crime scene. See T.603-80. In particular, the bushes, trees and weeds adjacent to the train tracks were matted down as if some weight had been carried over them. T.608-09. The vegetation was only matted in the general direction heading toward the tracks. T.652-665-66. Inv. Hetzke testified that the appearance of the matted area was consistent with a body having been dragged through it. T.668. Inv. Hetzke found a flashlight head, which was dark green or black in color; a flashlight battery; and a broken flashlight reflector all in the same vicinity. None of these pieces were positive for fingerprints, and they could not find the rest of the flashlight. T.660, 671. Inv. Hetzke stated that the police never recovered a possible murder weapon.

The prosecution's medical witness, the Monroe County deputy medical examiner, testified that Markel was pronounced dead at the emergency room but that he had no vital signs during the twenty-mile ambulance ride transporting him to the hospital. T.535. The victim had suffered a traumatic amputation of the right leg, which was completely severed just above the knee. Id. At 535-36. His upper and lower jaw were fractured, and one of his teeth was protruding through the skin of the lip on the right side of the face. He had multiple scratches and abrasions, including several large skin flaps hanging off the side of his body. T. 536-537. The victim had grease and oil on his face and on his legs both front and back. He also sustained serious head injuries including multiple lacerations to the scalp. Any of the three traumatic injuries--in particular, the rather large, star-shaped wound--would have caused loss of consciousness. The star-shaped, or stellate wound, was more consistent with blunt trauma to the top of the head by an object such as a beer bottle, a stick, or a rock, rather than being struck by a locomotive train engine. T.540-41, 554-55. In other words, if the train had struck the victim's head one would not see the type of star-shaped tearing of the skin that Markel had. Rather, if the train hit the victim's skull with any kind of force, it would have obliterated any structure to the head. T.542. As far as the cause of death, the medical examiner indicated "multiple trauma" because there were several injuries that killed Markel; the obvious one was the traumatic severing of his leg which caused hypobulimic shock and death. T.542-43.

The prosecution also introduced the testimony of a jailhouse informant, James Beck, Sr., who was housed next to petitioner for three days in early 2000. T.694-95. Beck testified that he overheard Faeth"yelling back and forth" to another inmate, Ryan Laws. T.695. When Beck "heard [petitioner] say he had to take a lie detector test," Beck "got of [sic] [his] bunk and went over to listen." Id. Beck asked him, "You got to take a lie detector?" Faeth said, "yeah." Beck testified, "He [i.e., Faeth] thinks he would have a hard time passing it, and at that time I said, 'Well, did you do it?' Well he had something to do with it, and at that time I went back and sat down on my bunk and finished reading my book." T.696. According to Beck, Faeth told him that "he was running off the tracks, and somebody caught him off the tracks out of breath and asked him if he was okay, and I believe it was Stephanie Nesbitt, from what I heard." Id. Faeth also told Beck that "him [sic] and another kid beat up the kid that dies on the tracks for the crack and money." Id. Although Beck testified that Faeth was "yelling" about the lie detector test, Beck stated that the conversation involving petitioner's admissions was "not loud for anybody else to hear." T.697. Several days after this conversation, Beck was charged with having prison contraband (a cigarette lighter) in his cell. While he was being transported to a court appearance, he asked prison guards about who he should go to give a statement "regarding the murder on the railroad tracks." T.698.

The defense called Sheila O'Connor, who was in jail for driving while intoxicated. She stated that she did not know Faeth or any of the other witnesses, and that she killed the decedent by hitting him with a brick while she was drunk. See T.722-26. Gregory Miller, another inmate, testified that Ron Alessi had confessed to the killing. T.732-736. According to Miller, Alessi spoke freely about the incident while in jail and said that he hit Markel on the head with something and knocked him out. During one retelling of the story, Alessi allegedly said that he moved man up to the railroad tracks with someone's help; another time, he said that he did not move the victim.

The defense also called Dr. Robert Greendyke to counter the prosecution's medical expert. Dr. Greendyke testified that it was not possible to distinguish whether the decedent's injuries were caused by the train or other object. He also claimed that the presence of grease on the victim's body made it "a likelihood" and "certainly within the realm of possibility" that the star-shaped abrasion on the victim's came from the train. T.767-68. On cross-examination, the defense expert stated that he believed that "[a] portion of the locomotive could have" caused the stellate injury, although he stated that he did not have enough information to answer. T.768. Presented with a hypothetical based on the facts of the present case, Dr. Greendyke admitted that the front of the train "would have crushed the head." T.770. Dr. Greendyke testified that it was "[p]ossibly [sic] but unlikely" that a flashlight with batteries in it could have been used to inflect the star-shaped injury on the decedent's head.

The jury returned a verdict convicting petitioner of depraved indifference murder and robbery but acquitting him of intentional murder and felony murder. Faeth was sentenced to concurrent terms of imprisonment, the longer of which was 25 years to life. Faeth's conviction was affirmed on direct appeal, and his collateral motions attacking his convictions were unsuccessful. This timely habeas petition followed.

III. Discussion

A. Standard of Review

Since this petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), "which mandates deference to state court decisions," Sellan v. Kuhlman, 261 F.3d 303, 308 (2d Cir. 2001), petitioner must show that state court decisions denying relief involved an objectively unreasonable application of clearly established federal law as determined by the Supreme Court, or resulted in an unreasonable determination ...

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