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Daniel P. Anzalone v. Superintendent

February 22, 2012


The opinion of the court was delivered by: Honorable Michael A. Telesca United States District Judge


I. Introduction

Pro se Petitioner Daniel P. Anzalone ("Petitioner") has filed a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging the constitutionality of his custody pursuant to a judgment entered January 10, 2008, in New York State, County Court, Livingston County, convicting him, after a jury trial, of Attempted Arson in the Second Degree (N.Y. Penal Law ("Penal Law") §§ 110.00, 150.15). Petitioner was sentenced to a determinate term of ten years imprisonment, with five years post release supervision.

II. Factual Background and Procedural History

On March 28, 2007, a Livingston County Grand Jury indicted Petitioner and charged him with Attempted Arson in the Second Degree (Penal Law §§ 110.00, 150.15). The charges arose from an incident that occurred on December 18, 2006 at the Aldon Corporation (hereinafter "Aldon"), where Petitioner was working as a temporary employee.

A. The Trial

1. The Prosecution's Case

In December 2006, Aldon employed nearly 60 workers in a building located in Avon, New York. That building housed Aldon's chemical formulation and packaging company, and its toner cartridge recycling business. Trial Trans. [T.T.] 342-344, 388-389, 398. Aldon's chemical business mixed various compounds together, and packaged them in small containers for educational laboratory use. T.T. 343, 387-389. Aldon's recycling unit received empty toner cartridges from Xerox, cleaned them, and then returned them to Xerox for reuse. Flammable toner dust regularly filled the air at the Aldon building. T.T. 311-312, 343, 398.

On December 18, 2006, Petitioner, who had been a temporary employee at Aldon for less than two weeks, was assigned to Aldon's toner cartridge section by his employer, Burns Temp Service. T.T. 344-345. Around 11:00 a.m. that day, Petitioner told his co-worker Janice Patterson ("Patterson") that he needed to use the men's room. T.T. 506. He then entered the separate, but adjoining men's locker room, where he jumped on top of some metal lockers, and moved a ceiling tile. T.T. 297-298, 346, 348. Using a red Bic-brand lighter, above the sprinkler head and fire suppression system, he lit a softball-sized pile of paper towels with a fuse-like tail on fire. He then placed the lighter beside the burning paper towels. T.T. 309, 312, 348, 401. Petitioner replaced the ceiling tile and jumped down from the top of the lockers. T.T. 299.

Keith Simzer ("Simzer"), the head of maintenance for Aldon, heard an unusual banging noise from the locker room and entered it to investigate. Simzer discovered Petitioner in mid-air as he jumped down from the lockers. T.T. 296-299, 328-329. Simzer asked Petitioner what he was doing on top of the lockers, and Petitioner indicated that he was about to put out a fire. Simzer did not smell smoke. T.T. 299. Petitioner then jumped back onto the lockers, moved a ceiling tile, and put his hands inside the ceiling. T.T. 299. After Petitioner moved the tile, Simzer could see flames, which Petitioner patted out. T.T. 300, 309. Petitioner told Simzer that he believed the source of the fire was electrical because the fire had originated in the ceiling light fixture. T.T. 300.

Simzer, who was responsible for the building's electrical maintenance, climbed the ladder for a closer look. T.T. 296, 300-301. Upon his return, Simzer saw Petitioner with Ernest Covell, the plant manager, who had entered the locker room while Simzer was gone. Simzer testified that Petitioner had a burnt, wadded-up, ball of paper towel in his hand, and that the paper towel appeared to have come from the machine roll found in Aldon's bathroom. T.T. 301, 313, 320-322.

Climbing the ladder, Simzer looked above the ceiling tiles, and discovered that there was nothing wrong with the lights or any other electrical problems. T.T. 302. Simzer found paper towel ashes made from the same paper towels available in the Aldon restrooms, and a red Bic-brand lighter. T.T. 302, 320-321. Simzer picked up the lighter and offered it to a group of individuals who had begun to congregate in the locker room. No one claimed the lighter or touched it, and so Simzer put the lighter in one of his maintenance drawers. T.T. 302-303. The lighter remained there for two days until it was later collected by Police Sergeant Peter Henry. T.T. 303.

Earlier that day, Covell had seen someone in the locker room matching Petitioner's description on top of the lockers with his hands inside the ceiling panels. T.T. 346-348. Covell did not think anything of it until Petitioner later told him that he had just put out a fire in the men's locker room, and that he had seen smoke and sparks coming from a light fixture. T.T. 346-348. After inspecting the light, Covell saw nothing wrong with it, but saw a singed soft-ball sized ball of rolled-up paper towel with a tail. T.T. 348-350.

Aldon President James Bertsch ("Bertsch") testified that he responded to the fire and, upon doing so, heard Petitioner say that he put out a fire that he discovered in the men's locker room. T.T. 390-391. Petitioner explained that there had been an electrical fire near the light fixture. T.T. 391-392. Bertsch saw a "fairly good-sized clump" of partially-burned paper towel on the floor. T.T. 400-402. That same day, Aldon terminated Petitioner's work assignment. T.T. 352, 394. Covell escorted Petitioner out of the building, at which time Petitioner stated, "boy, I hope I don't get in trouble just for putting out a fire, and I'm losing my job because I tried to save people's jobs and stuff, you know for putting out the fire." T.T. 352.

Confusion over whether Burns Temp Service or the Aldon Corporation should report the fire led to a two-day delay in the investigation. T.T. 394-395. Sergeant Henry responded to the Avon building on December 22, 2006, and collected the red Bic lighter from Simzer. T.T. 303, 436.

Forensic scientist Elizabeth Staude ("Staude") extracted DNA evidence from the lighter's striker's wheel. T.T. 480. DNA consistent with Petitioner's DNA was found on the lighter's wheel, along with DNA from one other person. T.T. 493-497.

Several weeks after being fired, Petitioner told Aldon employee Robin Campbell ("Campbell"), "boy, they're really lucky I was there. Otherwise, if I hadn't been, the ...

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