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Dustin Narrod v. Superintendent Napoli

February 4, 2011


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


I. Introduction

Acting pro se, Dustin Narrod ("Narrod" or "Petitioner") has filed a petition for a writ of habeas corpus under 28 U.S.C. 2254 challenging the constitutionality of his detention in state custody pursuant to a judgment of conviction entered against him, following a jury trial, on charges of second degree (intentional) murder and third degree arson.

The parties have consented to disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

II. Factual Background and Procedural History

A. The Trial Eight-three-year-old Jean McAllister ("McAllister" or "the victim") was last seen alive on the afternoon of July 31, 2000. One of her neighbors saw her sometime between 4:00 and 4:30 p.m. sweeping her driveway on the corner Manitou Road and Peck Road in the Town of Parma (Hilton). T.333.*fn1

On Friday, August 4, 2000, McAllister's sister-in-law, Betty Twilliger ("Twilliger") called McAllister's house before stopping by to take her grocery shopping, as was Twilliger's custom. However, each of the three of more times she called, she heard a busy signal, which was unusual. T.357-59. Twilliger went to McAllister's house. When she was unable to gain entrance through the kitchen door, she went to the front door which was ajar (McAllister usually kept the front door open, with the screen closed, in the summer when she was home.) Upon entering, Twilliger immediately realized there had been a fire. T.360-62. She could not find McAllister in any of the main floor rooms, and the bedroom was "all burnt up."

Twilliger enlisted the help of a neighbor, who telephoned the fire department. T.367-68, 379, 382, 385-86. The firefighters found no active fires burning. McAllister, however, lay dead in the furnace room in the basement. T.418, 421.

McAllister's body was "burned very, very badly" and the "whole left side [of her body] had received terrible burns." T.526. McAllister's body had been charred beyond visual recognition; she was identified by her dental records. T.723. There were a number of matches scattered on her corpse and sitting next to her were a bottle of charcoal lighter fluid and smoke detector with the 9-volt battery removed. T.526. The victim's head was covered with a towel, and a white rope was draped around her upper torso. T.526. Wooden matches were on the ground surrounding her and there were newspapers on top of, under, and around her. T.526, 532. On top of the body lay a green suitcase containing silver dollars, half dollars, a roll of coins, and a cigarette butt. T.644. Another cigarette butt was recovered from the fire debris surrounding the corpse. T.639.

The medical examiner found that McAllister had several lacerations on her skull, indicating blunt force trauma. T.967-68. The skull showed multiple fractures and, internally, there was a laceration of the brain directly underneath, as well as some hemorrhaging over one of the layers of the outer surface of the brain. T.972. The broken bone in the skull was displaced inward away from its normal location. T.973. The injuries indicated that McAllister had received at least four blows of considerable force with some type of blunt instrument. T.973-74. There was bruising on the right deltoid, indicating some trauma to the shoulder. T.970.

In addition, there were two stab wounds to the neck. T.967-68. A steak-knife blade with the handle missing was found embedded in the cervical neck area. T.636-38, 953. There were no petechial hemorrhages which typically are found in asphyxia cases. This led the medical examiner to rule out strangulation as a factor in McAllister's death, the cause of which was determined to be blunt force truama to the head. T.977.

A pattern of blood spatters at the base of the stairs was consistent with the victim being struck repeatedly with an instrument while lying on the floor there. T.615. Behind the stairwell was found a knife handle that matched the blade embedded in the victim's neck. T.640-41. A trail of blood led from the bottom of the stairs, through to the furnace room where McAllister's body was found. T.532-33.

Beside the trail of blood stood a partially consumed bottle of "Tahitian Treat" soda. T.534 When the soot was removed from the basement floor, the investigators found bloody shoeprints underneath. T.669. Examination revealed that they were consistent with the tread pattern of men's size 9 1/2 Dexter brand shoes, either the "Explorer" or "Excursion" style. T.1094-96. Narrod wears size 9 1/2 shoes and was known to wear shoes of that style. The search of his house revealed two (2) pairs of Dexter shoes and four (4) Dexter shoeboxes. T.699, 867-68, 879- 80. See also Property Custody Report, submitted as part of Respondent's Appendix of State Court Records ("Resp't App."), which is unpaginated.

A check of the telephone records revealed that McAllister's phone line had gone dead at exactly 1:30:39 a.m. on August 2, 2000. T.479. At some point before that time, the wall-mounted phone in McAllister's basement had burned off and fallen onto the fire debris on the floor. T.525. A telephone company technician stated that a wall-mounted phone being burned in that manner could definitely cause the "hard short" out-of-service message found in McAllister's phone records. T.479. Anyone calling McAllister's number after the "hard short" would get a busy signal, as Twilliger had gotten when she called on August 4, 2000. T.479. No service calls were made on McAllister's phone line after 1:30 a.m. on August 2nd. T.480. The time of fire was thus determined to be August 2, 2000, at 1:30 a.m. Because the victim's airway contained no soot, the medical examiner determined that she was already dead when the fire was started. T.975.

There was additional physical evidence recovered on the main floor of the house. On the dining room table stood an orange juice container; both the container and the table were smoke-damaged and completely covered with soot. T.500. There was no soot underneath the container. Three cigarette buts were floating in the remaining orange juice. T.629.

In addition to the two fires in the basement, there was evidence of five (5) fires upstairs. In the livingroom, there had been a fire on one wall by a large window, which incinerated the draperies and melted a TV and VCR. T.492-93. The hallway carpeting had a burn-pattern. T.504. Evidence of three (3) separate fires was found in the master bedroom. One had started on the bed and had traveled up the headboard onto the wall and ceiling. T.516-17. A second had started on the floor between two dressers and continued up the wall. T.517. Another had been started inside one of the dresser drawers. T.517.

The arson investigator concluded that the fires had begun burning very fast and hot. They produced a great deal of soot and smoke, but quickly sucked up all the available oxygen and, consequently, burned themselves out. T.536-37. The carpet and carpet padding were found to contain remnants of gasoline and a medium petroleum distillate. T.1123. The towel found draped on the pool table in the basement, as well as a piece of rug from under the victim's body, also contained a medium petroleum distillate. T.1120. The contents remaining in the bottle of charcoal starter fluid was analyzed and found to be a medium petroleum distillate consistent with that found in the carpet, carpet padding, towel, and rug samples. T.1129-30. Gasoline was found in the draintrap of the bathroom sink. T.1127-28.

The police investigated a number of suspects, including one Frederick Allen Taylor ("Taylor"). As part of their canvass of the neighborhood, the police interviewed Narrod on August 24, 2000. T.546. Narrod stated that he had no information about the incident, that he did not know McAllister, that he had never been over to her house or inside her house, and that he had never done any work for her. T.551-52.

In the meantime, several weeks after the August 2000 murder, Narrod was hanging out with some friends. Someone asked him "if he thought it was weird that somebody had been killed right down the street from him." T.575, 580. Narrod responded that it did not seem weird to him and that "somebody had tried to go back and set the house on fire and they didn't find the body for two days." T.575. The police discovered, after reviewing all of the information disseminated by the press and media at the time of the crime, that the sheriff's department merely had said that McAllister had been killed sometime between July 30th and August 4th. T.1006, 1018. Thus, it was only through first-hand knowledge that Narrod could have known that McAllister's body was not discovered until two days after the blaze.

According to Narrod's friends, he had also told them that the police had questioned him about the murder because he had walked past McAllister's house on the night of the murder.

T.578-79. However, the police did not know whether he had walked past the victim's house. Furthermore, the police did not state to him that was why he was being questioned. T.546-48.

On September 16, 2000, about a month and a half after the murder, Narrod was arrested for several unrelated, non-violent felony offense for which he faced a maximum possible sentence of two and two-thirds to eight years in prison. T.872. Curiously, at the end of October or the beginning of November, Narrod wrote a letter to an ex-girlfriend in which he stated, "I guess by now you probably heard I was arrested for a lot of things and I'm in very big trouble. You were right about my drug addiction, I just never seen [sic] it. I'm looking at 25 years in a [sic] upstate prison." T.871. At that time, Narrod had not been arrested in connection with the McAllister murder. He did not face anywhere near twenty-five years on the non-violent felonies on which he was being held. However, twenty-five years is a not uncommon sentence for intentional, felony, or depraved indifference murder.

On May 15, 2001, the Monroe County Sheriff's Office interviewed a woman who knew Narrod; she described him as a drug abuser (cocaine and heroin). She stated that Narrod had been observed using cocaine in a bar and was overheard stating that he was going to be in trouble for robbing an old lady. The informant felt this might have been a reference to the McAllister murder. Coincidentally, at the time of this interview, Narrod was in the county jail on a pending robbery and larceny charge. On May 22, 2001, the police collected several items from a lunch tray discarded by Narrod and submitted them for analysis and comparison to the cigarette butts and soda bottle found at the crime scene. However, there was insufficient quantities of DNA on these items from which to glean reportable results.

On January 8, 2002, the police went to Narrod's home to speak with him. He voluntarily accompanied them to the police station and waived his Miranda rights. Narrod explained that he had lived on Peck Road for about ten years and had seen McAllister on only two occasions--one time when she was shoveling snow, and another when she was getting her mail. T.1004. Narrod stated that he had never been inside her house and had never done any work for her. T.1005. He informed the investigators that his shoe size was 9 1/2. He voluntarily agreed to provide a DNA sample. T.1005.

On February 1, 2002, the police were notified that the DNA profile from the items collected at the crime scene matched Narrod's DNA profile; the results indicated that the probability of a randomly selected individual, unrelated to Narrod, having the same DNA profile, was less than one in two hundred ninety-two trillion.

On February 4, 2002, Narrod was arrested on an outstanding warrant on unrelated charges. At that time, the police had probable cause to arrest Narrod for the McAllister murder in light of, inter alia, the DNA results. Narrod again accompanied police officers to the station where he again waived his rights and gave a written statement. T.1047-52. With regard to McAllister, Narrod stated, "I only seen [sic] the lady shoveling her driveway once or twice. I've never been at the lady's house, I've never been in the lady's house, I don't know anything about her and have never helped her or worked for her." T.1054.

Search warrants were obtained by the police on February 13, 2002. Narrod was arrested, and subsequently arraigned on February 15, 2002, on murder charges in the Town of Parma Justice Court. The case was presented to a grand jury which returned an indictment charging Narrod with one count of intentional murder, one count of depraved indifference murder, and one count of arson.

At trial, the defense was precluded from introducing third-party culpability evidence regarding Frederick Taylor; this is discussed further, infra. Narrod did not testify, and the defense called no other witnesses.

The jury returned a verdict convicting Narrod of second degree (intentional) murder and third degree arson. He was acquitted of depraved indifference murder.

B. Post-Verdict Proceedings and Sentencing

Trial counsel filed a motion pursuant to C.P.L. § 330.30 to set aside the verdict on the basis that the trial court had erroneously precluded the third-party culpability evidence from Fred Taylor. The trial court adhered to its original ruling, and denied the motion.

Narrod was sentenced to consecutive terms of imprisonment of twenty-five years to life for the second degree murder conviction and five to fifteen years for the third degree arson conviction.

C. The Direct Appeal

Represented by new appellate counsel, Narrod appealed his conviction to the Appellate Division, Fourth Department, of New York State Supreme Court on the same ground as he had advanced in his C.P.L. § 330.30 motion, in addition to other arguments. That court unanimously affirmed the conviction, and leave to appeal to the New York Court of Appeals was denied. Narrod filed no other post-conviction motions attacking his conviction or sentence.

D. The Federal Habeas Petition

This timely habeas petition followed. For the reasons discussed below, the petition is dismissed.

III. Legal Standard of Review

Federal habeas review is available for a State prisoner "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). Errors of state law are not subject to federal habeas review. See, e.g., Estelle v McGuire, 502 U.S. 62, 67-68 (1991); Cupp v Naughten, 414 U.S. 141, 146 (1970).

Because Narrod's petition, filed in 2007, postdates the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered titles of the U.S.C.), AEDPA's revisions of 28 U.S.C. § 2254 govern the proceeding. Lurie v. Wittner, 228 F.3d 113, 120-21 (2d Cir. 2000) (citing Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1518, 146 L.Ed.2d 389 (2000); Lindh v. Murphy, 521 U.S. 320, 322-23, 117 S.Ct. 2059, 2061, 138 L.Ed.2d 481 (1997); Tankleff v. Senkowski, 135 F.3d 235, 242 (2d Cir.1998)). The Second Circuit has summarized the requirements placed upon a habeas petitioner by the AEDPA standard as follows:

Under AEDPA, to prevail on a petition for a writ of habeas corpus, a petitioner confined pursuant to a state court judgment must show that the court's "adjudication of the claim ... 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." 28 U.S.C. § 2254(d)(1). "[C]learly established Federal law" refers to holdings of the Supreme Court, as opposed to dicta, as of the time of relevant state court decisions. Carey v. Musladin, 549 U.S. 70, 74-75, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006); Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A decision is "contrary to" federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413, 120 S.Ct. 1495. An "unreasonable application" occurs when a "state court identifies the correct governing legal principle ... but unreasonably applies that principle to the facts of the [petitioner's] case." Id. "Unreasonableness is determined by an 'objective' standard." Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir.2005) (quoting Williams, 529 U.S. at 409, 120 S.Ct. 1495).

Friedman v. Rehal, 618 F.3d 142, 152-153 (2d Cir. 2010) (Korman, D.J., sitting by designation) The Supreme Court has stated that "unreasonableness" should not be conflated with "clear error" because "[t]he gloss of clear error fails to give proper deference to state courts." Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently. The state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir.2001). However, "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Matter of Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000) (internal quotation marks omitted).

"[A] 'state court adjudicates a state prisoner's federal claim on the merits when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment.' " Jimenez v. Walker, 458 F.3d 130, 142 (2d Cir.2006) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001) (quotation and alteration marks omitted)). Where a claim has been "adjudicated on the merits," 28 U.S.C. ยง 2254(d), "deference [is] mandated under AEDPA," Sellan, 261 F.3d at 310, in the federal ...

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