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Bennett v. Stallone

United States District Court, Second Circuit

January 13, 2014

RICKY BENNETT, Petitioner,
v.
DAVID STALLONE, Respondent.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Ricky Bennett ("Bennett" or "Petitioner") filed a pro se habeas corpus application pursuant to 28 U.S.C. § 2254, alleging that he is being held in Respondent's custody in violation of his federal constitutional rights. Petitioner's state custody arises from a judgment entered against him on June 8, 2010, following a jury trial in New York State Supreme Court, Erie County (Burns, J.). Petitioner was convicted of arson in the third degree (N.Y. Penal Law ("P.L.") § 150.10(1)) and attempted arson in the third degree (P.L. §§ 150.10(1), 110.00), and is currently serving an aggregate sentence of seven and one-half to fifteen years in state prison.

II. Factual Background

A. Petitioner's State Court Proceedings

At around 9:30 p.m. on August 15, 2007, John Schnitzel ("Schnitzel") was at his home at 5520 William Street in Lancaster, New York. Schnitzel had one neighbor, Brian Lorenc ("Lorenc"), who lived at 5528 William Street. Schnitzel went outside and noticed an idling vehicle parked in Lorenc's driveway. The car, which he did not recognize, was a dark-colored, older model, four-door sedan with a loud muffler. As he walked towards his backyard, Schnitzel heard a "whooshing" sound and noticed that Lorenc's backyard was illuminated. Schnitzel returned to the front of the house where he observed the vehicle pulling out of the driveway. As Schnitzel walked towards the back of Lorenc's home, he saw a thigh-high trail of flame on the walkway. By the time he got to the back of the house, the awning behind the home was engulfed in flames. See T.37-46.[1] Schnitzel called 911 and then called Lorenc. When Lorenc arrived about 10 minutes later, Schnitzel said Lorenc appeared "overwhelmed, surprised, [and] anxious." T.50.

It took the four responding fire companies until 2:00 a.m. to extinguish the fire. During this time, Lancaster Police Detective Edward Wojtal ("Wojtal") observed a large hole in the floor in the dining room, which he determined to be the point of origin. T.112-13. He also collected debris to test for the presence of accelerants. Wojtal ruled out accidental or mechanical causes for the blaze but could "not rule out the human element." T.138.

The debris collected from the point of origin and from the soil near the flame trail was taken to the forensics laboratory by Detective Leon Robak and was tested for the presence of accelerants by forensic chemist Michelli Schmitz. The four samples submitted to the lab all tested positive for the presence of gasoline.

Petitioner's former fiancee, Kathleen Kuwik ("Kuwik"), testified for the prosecution. She explained that although their relationship had ended, Bennett still would confide in her frequently. In late August of 2007, Bennett called Kuwik and asked her if she had seen the news. Bennett then stated that Lorenc's home had burned down but no one was in it at the time. T.178-79.

On September 2nd, Bennett called Kuwik again and went to her home for dinner. During their conversations, Bennett admitted to starting the fire. A few days later Bennett had dinner again at Kuwik's house. He explained that he had driven to Lorenc's house where he removed two five-gallon canisters of gasoline from his trunk. T.181. He then entered Lorenc's house, poured the gasoline in the back section of the home, made a gasoline trail down the driveway, lit the trail, and left. Id . Bennett told Kuwik that his shoes had caught on fire when he ignited the gasoline trail. T.182. Bennett said he was driving a four-door Cutlass sedan with a loud muffler and that he was involved in a police chase later that evening. Id . Kuwik subsequently went to the Lancaster police department and gave a statement to detectives regarding Bennett's admissions to her. T.186-87.

On November 29, 2007, Bennett called Kuwik to set up another dinner-date. In anticipation of seeing Bennett again, Kuwik had-of her own volition-purchased a small, voice-activated, recording device. She concealed it on the top of her entertainment center. During the November 2007 visit, Bennett said to Kuwik, "I sure burnt down that house real nice, didn't I?" T.188; see also People's Exhibit 42-B. Bennett described the layout of Lorenc's home and said something to the effect of "his back paid for Lorenc's home." T.189; People's Exhibit 42-B. Bennett was bitter towards Lorenc and blamed him for withholding pay from Bennett and having Bennett's car repossessed. Bennett expressed satisfaction that one of Lorenc's recent business ventures had failed. See id. Kuwik subsequently contacted the Lancaster Police Department and provided them with the tape. T.193.

Lorenc testified that he owned the home at 5528 William Street and also owned a roofing company, BML Contracting, Inc., which had employed Bennett from 2003 through 2005. Lorenc recalled that he and Bennett often disagreed over Bennett's compensation. On August 15, 2007, Lorenc had gone to check in on his employees after work in the early evening. After that, he went to his shop where he received a call from Schnitzel informing him of the fire at his house. Lorenc became hysterical and drove home; upon seeing the blaze, he wept. Lorenc cooperated fully with the police investigation. Lorenc testified that during the fire he lost approximately $70, 000.00 in cash, which he had kept in his bedroom.

One of Bennett's former employers, Dave Stechenfinger ("Stechenfinger"), testified for the prosecution. Stechenfinger owned Eclipse Siding, Inc., at which Bennett had worked from 2006 through 2007. According to Stechenfinger, Bennett was an "excellent worker". T.293. On the night of August 15, 2007, Bennett called Stechenfinger and said to him, "[O]ne bird down, one to go." T.295. When Stechenfinger asked what he meant, Bennett replied, "[G]o out in your front yard and look." Stechenfinger did so and observed a "huge ball of smoke" in the direction of Lorenc's home. Id . Stechenfinger received two more phone calls from Bennett that evening. During one call, Bennett said that Lorenc was "on knees balling [sic]" and laughed. T.297. Stechenfinger knew Bennett disliked Lorenc and blamed Lorenc for having his car repossessed. When Stechenfinger and Bennett had discussed the car repossession in the past, Bennett remarked that Lorenc "would get his." T.298. The day after the fire, Bennett went to Stechenfinger's home and asked him for money to dispose of a car. Bennett explained that he had gotten "busted" trying to blow up a vehicle in Tonawanda. Some time later, Bennett told Stechenfinger that if he was contacted by the authorities, he "don't [sic] know nothing". T.301-02.

Kevin Grover ("Grover"), the victim of the attempted arson count, was employed as a roofer for Lorenc at BML Contracting and for Stechenfinger at Eclipse Siding. Grover had worked with Bennett from 2005 through 2007. On August 15, 2007, Grover was living at 211 Conant Street in Tonawanda with his fiancee, Linda Pacer ("Pacer"). Grover was not at home that night, but Pacer and her friend, Nicole Fournier ("Fournier") were there. At 11:00 p.m., Fournier went outside to have a cigarette and saw a man with a gas can get out of a dark-colored Cutlass sedan. The man approached Grover's truck, which was parked across the street, and poured gasoline on it. Fournier called for Pacer, who came outside. At that point, the man stood up, dropped the can, got into the Cutlass sedan, and drove away. T.366-67, 381-82. Pacer described the man with the gas can as a white male wearing glasses. T.384. Pacer called 911 and Grover.

Tonawanda Police Officer David Coffee ("Coffee") responded to the call. While Coffee was speaking with Fournier, Pacer, and Grover, the same dark-colored Cutlass sedan approached the house. Pacer told Coffee that the driver was the man she had seen. The Cutlass sped up as it passed them, and Coffee gave chase. However, he was unable to apprehend him. Although Grover recognized Bennett as the driver, by his "bushy hair" and "big Coke-bottle glasses", he did not say anything to Coffee at the time because he did not want to "start something" with Bennett. Grover later gave a statement to the police identifying Bennett.

Petitioner was arrested on November 5, 2007, and was transported to the Erie County Holding Center at approximately 3:30 p.m. Later that day, he placed a phone call to a woman identified at trial as his girlfriend, "Beth". During the call, Bennett informed her, "I got big problems." See Peo. Ex. 43. Bennett commented, "I did what I did. I fucked up. I'm gonna wind up paying the price for that." Bennett repeated the phrase "I'm fucked" five separate times during the conversation.

The jury returned a verdict convicting Bennett as charged in the indictment. The trial court sentenced Bennett to concurrent, indeterminate terms of seven and one-half to fifteen years under count one and three to six years under count two.

The Appellate Division, Fourth Department, of New York State Supreme Court unanimously affirmed Bennett's conviction, and leave to appeal was denied. People v. Bennett , 94 A.D.3d ...


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