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Afrika v. State

United States District Court, Second Circuit

November 4, 2013

NACHE AFRIKA, Petitioner,


MICHAEL A. TELESCA, District Judge.

I. Introduction

Pro se petitioner Nache Afrika ("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 May 2, 2008, in New York State, Erie County Court, convicting him, after a jury trial, of Robbery in the First Degree (N.Y. Penal Law ("Penal Law") § 160.15 [4]), Rape in the First Degree (Penal Law § 130.35 [1]), and Sodomy in the First Degree (Penal Law § 130.50 [1]).[1]

For the reasons stated below, habeas relief is denied and the petition is dismissed.

II. Factual Background and Procedural History

A. The Trial

1. The People's Case

On the evening of October 27, 1998, Jacqueline Kaminska ("Kaminska") and Kristin Borland ("Borland") were working at Marshall's Department Store in Cheektowaga, New York. Trial Trans. [T.T.] 628, 632, 689-690. Just after 9:30 p.m., after it appeared that the last customers had left the store, Kaminska approached Borland and asked her to accompany her to the back of the store to help her lock up. Tr. 634-635. Kaminska locked the back door and the two women then turned to go back to the front of the store. As they did, they saw a tall man wearing a ski mask and carrying a silver gun. Tr. 635-636, 692. The man wore a military-style jacket and boots. Tr. 636. The women could tell the man was African-American from the exposed skin visible around the openings in the ski mask. Tr. 636-637, 692-693. The women screamed and the man told them to "shut the fuck up." Tr. 693. He pointed the gun at the women and told them that it was loaded and that he was not afraid to use it. Tr. 637-638, 692-694. He also told the women to stop looking at him and to look down. Tr. 638, 694. Borland, fearing that the man would in fact shoot her, did not look at him. Tr. 694. He stated that he was looking for money, and Kaminska told him that she would give him anything he wanted. Tr. 640. He then took the women by the back of their necks and marched them to the front of the store. Tr. 641-642, 694. Concerned that they would be visible on the store cameras and to other employees waiting outside the store, the man made the women crouch low and stay on the perimeter of the building. Tr. 641-642, 644, 694-695.

When they reached the front of the store, the man demanded that Kaminska open the safe, which she was unable to do due to the sensitivity of the safe's dial and because she wore bifocals. Tr. 645. The man became "very upset" with Kaminska and she asked Borland to open it instead. Tr. 645. Borland opened the safe and the man produced a pink duffle bag. He instructed her to fill the duffle bag with the contents of the safe, which she did. Tr. 646-647, 696. The man rifled through each woman's handbag, took whatever money was inside, and also looked through their personal information and photographs. Tr. 647. The man then tied Kaminska to a chair with tape in the cash office, and, at some point before leaving, ripped the phone card out of the wall. He told her that he was taking Borland to the back of the store to show him the way out. Tr. 649, 650, 696-697, 698. Kaminska, fearing that the man would hurt Borland, told him that he knew the way out and did not need Borland to show him. Tr. 650-651, 697. Kaminska begged him not to hurt Borland, indicating that she was "a young girl." Tr. 697. The man indicated that he would not do anything to Borland, and then leaned down and whispered to Kaminska that she should "consider this [her] lucky day." Tr. 651.

Borland believed that the man was going to shoot Kaminska in the back of the head "in case she had seen something." Tr. 698. Instead, the man walked Borland, who was carrying the duffle bag full of money, to the back of the store. Tr. 698. As they approached the door to the outside at the back of the store, the man told her to stop and turn around. He then attempted to tie her wrists, which he was unable to do. Instead, he held the gun in front of Borland and stated, "you remember I have this." Tr. 699. The man lifted up Borland's skirt and she began to cry. He told her to stop crying and that he was "only going to touch." Tr. 700. He then rolled her pantyhose down, and Borland heard him unzip his pants. Tr. 700. He instructed Borland to lay forward onto some rollers, and then told her to turn her and get on her knees. He told Borland to perform oral sex on him, instructing her to "give it to him fast, give it to him like [she] [did] [her] boyfriend." Tr. 701. Borland put his penis in her mouth, keeping her eyes closed the entire time. Tr. 701. He then directed Borland to lay down and he inserted his penis into her vagina. Tr. 702. At some point, he got off Borland and, while standing, masturbated and ejaculated on Borland. Tr. 702. The man wiped his ejaculate away with "something plastic" that was on the floor. Tr. 702-703. Borland testified that she kept her eyes shut while the man raped her because she was afraid he would shoot her. Tr. 702-703. When she thought the man had left, Borland got up from the floor, straightened her clothes, and went to the front of the store where she tearfully told Kaminska that she was raped. Tr. 652, 703-704. Kaminska eventually called 911. Tr. 653, 705.

Borland was taken to Erie County Medical Center where a rape examination was conducted. Tr. 705-706. After the examination, Borland was taken to the police station to make a statement. Tr. 707.

At trial, Petitioner's redacted grand jury testimony was read to the jury. Tr. 805-821. Petitioner testified that he lived in Rochester and did not come to Buffalo frequently. Tr. 816. According to him, the last time he was in Buffalo was for the Juneteenth Festival at Martin Luther King Park in June 1998. Tr. 816. He testified he had three young children, as well as an older daughter from a prior relationship. Tr. 817. According to him, he was at home in Rochester putting his three young children to bed on the night of the crime. He testified further that he did not own a handgun, did not know where Marshall's Department Store in Cheektowaga, New York was, and had never shopped in Marshall's in Rochester or Buffalo. Tr. 814-815, 820.

Angelia Smith-Wilson ("Smith-Wilson") testified that she married Petitioner in 1996, had a daughter with him in 1997, and separated from him shortly thereafter. Tr. 824-825. She testified that she recalled seeing clothing items with Marshall's tags in Petitioner's apartment in November 1998. Tr. 828.

Monique Conner ("Conner") testified that she met Petitioner in February 1997 in Rochester and dated him until November 1998. Tr. 859-861. She testified that while she was dating Petitioner, he traveled to Buffalo three or four times a month and that sometimes she would go with him. Tr. 861. She testified that, when they traveled to Buffalo, they went to the Galleria Mall, the Juneteenth Festival, and also visited a jail. Tr. 862. Further, Conner testified that she saw a silver handgun in Petitioner's apartment on several occasions, and that she also saw it in his truck. Tr. 863.

Paul Hojnacki ("Hojnacki"), a forensic serologist for the Erie County Central Police Services Forensic Scientific laboratory, testified that he performed a DNA analysis on sperm cells that were found on Borland's pantyhose. Tr. 901-907. When Hojnacki compared the DNA profile found on Borland's pantyhose with that of an early suspect (David Costner) and with that of Borland's boyfriend (Matt Burke), both were excluded as contributors. Tr. 908-910. Hojnacki testified further that he developed the major profile of the sperm fraction found on Borland's pantyhose and then entered that profile into the New York State DNA Databank. Tr. 911. Thereafter, he was notified that there had been a DNA match between the major profile of the sperm fraction that he had entered into the Databank and the known DNA of Petitioner which was in the Databank. Tr. 912. Subsequently, a new independent DNA sample in the form of a buccal swab from Petitioner was submitted to Hojnacki for DNA analysis. Tr. 912. Hojnacki testified that from the time he initially performed DNA testing on the sperm fraction recovered from the pantyhose up to the time he conducted DNA analysis of Petitioner's known buccal swab, there had been a change regarding the type of kit that was used in his lab. Tr. 914. The new kit, known as "Identifiler" incorporated all of the loci that were found present in the previous kit, and also used two additional loci. Tr. 914. The known buccal swab from Petitioner was tested using the "Identifiler" kit, which used fifteen loci instead of thirteen. Tr. 914. After conducting his testing, Hojnacki concluded that the source of the major profile of the sperm fraction from Borland's pantyhose matched the DNA buccal specimen taken from Petitioner. Tr. 933. He testified that the probability of finding a match in the overall population was 1 in 305 trillion. Tr. 933-934. When the African-American population probabilities were applied alone, the probability of a match was 1 in 3.88 quadrillion. Tr. 935-936.

2. The Defense's Case

Petitioner called Dr. Michael Garrick, a professor of biochemistry at SUNY at Buffalo, to testify for the defense. Tr. 988-989. Dr. Garrick testified that he had been called as an expert witness in approximately 40 cases, "about half and half between prosecution and defense, and the last several years exclusively for the defense." Tr. 990. Dr. Garrick testified that he was familiar with "Identifiler" and that it had been in use for several years. He explained that "there have been, over time, a number of changes in the technology, and [Identifiler'] is essentially the most recent." Tr. 992. Dr. Garrick testified that if Petitioner had been excluded at one of two untested loci using the "Identifiler" technology, he would have been completely excluded. Tr. 993.

On cross-examination, Dr. Garrick testified that he was not claiming Petitioner had been excluded, he was not a forensic serologist, and was a population geneticist according to training but did not have a degree in same. Tr. 994-995. When asked by the prosecutor what the chances are that Petitioner would have been excluded had those ...

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