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Allen v. Artus

United States District Court, E.D. New York

May 14, 2014

GARNER ALLEN, Petitioner,

Petitioner proceeds pro se.

Respondent is represented by Thomas Spota, District Attorney of Suffolk County, by Karla L. Lato, Riverhead, NY.


JOSEPH F. BIANCO, District Judge.

Garner Allen (hereinafter "Allen" or "petitioner"), petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction for murder in the second degree in a state court. Petitioner challenges his conviction on the following grounds: (1) the prosecution failed to prove beyond a reasonable doubt that petitioner caused the death of the victim, Ruth Seybolt, and the jury verdict was against the weight of the evidence; (2) the police lacked probable cause to arrest petitioner; (3) the trial court erred in failing to suppress petitioner's post-arrest oral admission; (4) the medical examiner's expert testimony that the victim's death was a homicide denied petitioner a fair trial; (5) the trial court improperly admitted a forensic animation of an edited surveillance video into evidence; and (6) petitioner was denied effective assistance of trial counsel.

For the reasons set forth below, the Court determines that the petition for habeas corpus is without merit. Accordingly, the Court denies the petition in its entirety.


A. Facts

The instant petition sterns from petitioner's conviction, after a jury trial, of murder in the second degree, see N.Y. Penal Law § 125.25(3). The following facts were adduced from the petition and documents attached thereto, as well as from the state court trial and appellate record.

On May 2, 2005, eighty-five year old Ruth Seybolt ("Seybolt") went to a bank and cashed a check for $1, 000.00. (T. at 924.)[1] The next day, she went to the Riverhead Public Library and entered the lower level commonly referred to as the "stacks" at approximately 11:26 am., wearing a blue coat and carrying her long-strapped pocketbook and a canvas bag. ( Id. at 95, 374-75, People's Ex. 51)[2] As described in respondent's papers, a surveillance video admitted in evidence at trial shows that petitioner entered the stacks less than a minute earlier, wearing a dark coat, jeans, and sneakers (People's Ex. 51.) Video surveillance showed Seybolt moving through the library, while petitioner appears to shadow her movements. ( Id. )

At approximately 11:58 a.m., Seybolt walked to the far end of a row of bookshelves. ( Id. ) Surveillance camera 12A recorded a person in dark clothing grab Seybolt, leaving her lying on the floor with only her legs visible. ( Id. ) At approximately 11:59 am., surveillance camera 1B showed petitioner walking toward the stairs; a thin strap, consistent with the victim's purse, was visibly hanging from his dark jacket. ( Id. ) He moved out of the camera's view between the shelves and emerged carrying his coat tucked under his arm at approximately 12:01 p.m. ( Id. ) Petitioner left the library and walked toward the Riverhead train station; when he reentered the library at approximately 12:07 p.m., he was again wearing his coat. (T. 381-82.)

Deborah Bouchard ("Bouchard"), a homemaker and a registered nurse, arrived at the library with her daughter, who was in a stroller, and took the elevator to the lower level at approximately 12:09 p.m. ( Id. at 655.) When she left the elevator, she heard a man's voice asking, "Did you fall'?" but heard no response. ( Id. at 657.) Petitioner approached Bouchard, told her that there was a lady lying on the floor, and led Bouchard to the victim. ( Id. at 658.) Petitioner stated that he thought she had suffered a seizure. ( Id. at 658.) Bouchard saw a petite, older woman lying motionless on the ground with a tote bag on her arm. ( Id. at 659, 663.) The victim was lying flat on her back, diagonally across the aisle, with her toes up against the bookshelf and her knees up. ( Id. at 659.) Bouchard instructed petitioner to ask the librarians to call 911. ( Id. at 659.) She noted that there was blood coming out of the victim's ear, and that there was a pool of congealed blood next to her head; it appeared that it had been there for a while. ( Id. at 659.) A portion of the victim's dentures were on the floor next to her. ( Id. at 660.) Bouchard did not think that the victim had suffered a seizure. ( Id. at 660-661.) The victim was semi-conscious, "moaning and groaning, " and could only tell Bouchard her first name. ( Id. at 661.) Bouchard did not notice any library carts or stools in the vicinity. ( Id. at 664.)

Petitioner told Elizabeth Stokes ("Stokes"), a library employee, that a lady downstairs had suffered a seizure. ( Id. at 145.) Stokes had known petitioner for over ten years ( Id. at 126.) When petitioner later spoke with Stokes again, he reiterated that a lady had suffered a seizure in the lower stacks, but seemed nervous and agitated. ( Id. at 145-46.) Stokes went to the victim and saw that she was sitting up with her back against the wall, bleeding but not speaking. ( Id. at 172-73.) When Riverhead EMTs responded to the library, they found the victim on her back with lacerations and blood on the right side of her face. ( Id. at 690-92.) Her lips, cheeks, and right ear were bruised. ( Id. at 694.) She did not have any injuries on her arms of legs. ( Id. at 694.) No injuries consistent with a fall were evident on the victim. ( Id. at 711-12.) The aisle where the victim was found was clear; there were no carts or stools present, and the victim's purse was not found. ( Id. at 712-14.) The victim did not know where she was; she complained of nausea and kept crying in pain, "my head, my head." ( Id. at 712.) The library staff located the victim's name and address through their records ( Id. at 713.)

Seybolt was transported to Central Suffolk Hospital, where she presented with a laceration on the right ear, abrasions and contusions about her face, and bleeding from the left ear. ( Id. at 713.) A CT scan at the hospital revealed subarachnoid hemorrhaging. ( Id. at 936, 939.) There was no indication that the victim had suffered a seizure. ( Id. at 947.) The victim was later transported to Stony Brook Medical Center, where a second CT scan found that the victim had suffered a contracoup injury requiring a craniotomy. ( Id. at 939-40.) Her daughter, Betty Fox, and grandson, Robert Fox, a Nassau County police officer, arrived at the hospital and found the victim in the trauma unit; her face was swollen, her cheeks were black and blue, as were her ears, her neck, and her chest. ( Id. at 83, 862.) The victim could shake her head, but she could not communicate verbally. ( Id. at 862-63.) The hospital had the victim's coat, glasses, clothing, and car keys, but her purse was missing. ( Id. at 83-84.). The victim did not recall how she became injured at the library. ( Id. at 876-77.)

Betty Fox went to her mother's house early the next day, but did not find the victim's pocketbook. ( Id. at 866.) She discovered that her mother had written a check for "household" for $1, 000.00. ( Id. at 870.) Money from the cashed check was never recovered. ( Id. at 876-77, 879.) Robert Fox called the Central Suffolk Hospital and learned that his grandmother did not have a pocketbook or any identification when she was admitted. ( Id. at 85). He also called the library and the Riverhead Town Police, but he could not locate his grandmother's purse. ( Id. at 86.) He searched her car, her home, the library grounds and nearby dumpsters, as well as the platform area of the Riverhead train station and nearby garbage cans, without finding the purse. ( Id. at 86-88.) He discovered that the library had surveillance video, and the library director permitted him to view the tapes on May 5, 2005. ( Id. at 89-90.) Robert Fox discovered that his grandmother had been carrying her purse when she entered the library. ( Id. at 90, 95.) As Robert Fox followed his grandmother's progress through the library, he noticed that a man in black appeared to be following her. ( Id. at 94. 96.) At one point, his grandmother abruptly disappeared from the tape; she then apparently was lying on the floor, with only her legs in view of the camera. ( Id. at 97.) Robert Fox called the Riverhead Town Police, and he and Detective Robert Boden ("Det. Boden") reviewed the tapes together. ( Id. at 102, 366.)

On May 8, 2005, Police Officer Michael Schmidt of the Riverhead Town Police Department found the victim's pocketbook in the common vestibule area of one of the inoperable cars located at the Riverhead train station. ( Id. at 766). The doorway to the car was open, and garbage and debris littered the floor. ( Id. at 772, 776.) No fingerprint evidence was found on the purse. ( Id. at 828.)

Detective Peter Aragone ("Det. Aragone") of the Suffolk County Police Electronic Investigation Section examined the library surveillance system on May 11, 2005. ( Id. at 218-19.) The library had two surveillance systems, A and B, each with four drives. ( Id. at 220.) Det. Aragone removed the original hard drives from the library and confirmed that the system was operating properly on May 3, 2005. ( Id. at 220.) Since the cameras in the library were motion-activated, systems A and B were not synchronized; the discrepancy between the cameras was determined to be twenty-five to thirty seconds. ( Id. at 223, 269-70, 285.) Det. Aragone made exact duplicates, or "clones, " of all of the camera surveillance of each system on May 3, 2005 between 11:00 a.m. and 1:00 p.m. ( Id. at 220-23, 242, 245, 284-86.) He also created photographs from individual frames of the video. ( Id. at 341-42.)

Daniel Krengiel ("Krengiel"), a computer animation teacher with degrees from New York University and the University of Florida, prepared Exhibit 51 to create a type of timeline sequence of the petitioner's and victim's movements before and after the crime. ( Id. at 1005-10.) He used highlights of the surveillance tapes from the Riverhead Public Library on May 3, 2005 (in evidence as Exhibits 27-31), coupled with a computer-generated 3-D floor plan of the lower stacks based upon a map of the Riverhead Library (in evidence as Exhibit 24B). ( Id. at 1007-09.)

On May 26, 2005, Det. Boden observed petitioner riding a bicycle on Hubbard Avenue in Riverhead and stopped him. ( Id. at 389-90.) Det. Boden said he wanted to speak with petitioner about what had happened at the library. ( Id. at 390.) Petitioner said he had found "the lady" downstairs and that she was not moving. ( Id. at 390.) Petitioner claimed the victim told him she was fine and asked him to leave her there on the floor. (Court Ex. 4.) He stated that he had seen a lady who was a nurse, and that she had helped him with the victim. (T. 389-90.) Petitioner said that he frequently borrowed books from the library and, on May 3, he did not leave the library but stepped outside to smoke. ( Id. at 390.) He thought the victim had suffered a seizure. ( Id. at 390.) Det. Boden recorded their conversation in writing. ( Id. at 389-90.)

Pamela Trojanowski ("Trojanowski"), an administrative assistant at the library, ran into petitioner on June 21, 2005. ( Id. at 843-44.) She had known petitioner since he was a teenager. ( Id. at 845.). Petitioner told Trojanowski that he had seen the woman downstairs and had called a woman who was pushing a stroller to help her. ( Id. at 846.) He stated that the victim had mumbled something to him. ( Id. at 846.) Petitioner did not understand why the detectives were questioning him. ( Id. at 846-47.)

On July 6, 2005, Det. Boden spoke with petitioner at Riverhead Town Police headquarters. ( Id. at 419.) He advised petitioner of his Miranda rights. ( Id. at 419-20.) Det. Boden told petitioner that he wanted to speak with him about the incident at the library ( Id. at 423.) Petitioner said that he really had not found the lady; the woman with the baby had brought him to her. ( Id. at 423.) Petitioner said the lady had been in really bad shape, and he thought she had suffered a seizure. ( Id. at 424.) When Det. Boden asked petitioner if he had seen a purse near the victim, petitioner responded that he had seen a white bag. ( Id. at 424.) Petitioner stated that he had briefly left the library on May 3, 2005, because he went outside to smoke. ( Id. at 426.) He insisted that he always went to the library and took out books. ( Id. at 425.) The police had already discovered that petitioner had received a library card on April 28, 2005, but had never checked out any library materials. ( Id. at 150, 152.)

When Det. Boden and Detective Sergeant Joseph Loggia ("Det. Sgt. Loggia") showed petitioner a picture taken from the surveillance tape of petitioner in the library on May 3, 2005, with a strap hanging out of his coat, petitioner explained that the strap was from a video camera that he often borrowed from his cousin. ( Id. at 427-29.) Det. Boden told petitioner that it looked like a pocketbook strap. ( Id. at 429.) Petitioner denied hurting Seybolt. ( Id. at 430.) Det. Sgt. Loggia placed petitioner under arrest for robbery. ( Id. at 432.) Petitioner told Det. Boden that he had not hurt the victim, but admitted that he took her purse. ( Id. at 432-34.) On July 10, 2005, Detective Haley recovered the jacket that petitioner had been wearing on May 3, 2005. ( Id. at 494.)

After undergoing a craniotomy, the victim suffered several urinary tract infections ( Id. at 945.) She required the placement of a catheter into her bladder. ( Id. at 945.) The urinary tract infections led to other system failures, and the victim developed sepsis, a blood stream infection. ( Id. at 946.) On August 9, 2005, the victim died of heart failure caused by a complication from her head trauma. ( Id. at 876, 946-954.) Dr. Gwen Harleman ("Dr. Harleman"), a deputy medical examiner, certified that the manner of death was homicide. ( Id. at 954.)

B. Procedural History

A Suffolk County grand jury returned an indictment charging petitioner with robbery in the first degree and assault in the first degree. That indictment was subsequently dismissed pursuant to a superseding indictment, No. 2897-05, charging petitioner with two counts of murder in the second degree under New York Penal Law §§ 125.25(2) and 125.25(3). Petitioner entered a plea of not guilty.

Before trial, the judge conducted a Huntley suppression hearing on May 9, 2006, to determine the voluntariness of petitioner's statements to the police. (Hr'g 5/9/2006 at 3.[3]) Det. Sgt. Loggia testified that petitioner had been told he was under arrest after the photographs from the library surveillance video had been shown to him, and before he stated that he had taken the victim's purse, at which point he was handcuffed. ( Id. at 30-33.) Det. Boden testified that petitioner had not been free to leave the police department complaint room during his questioning on July 6, 2005. ( Id. at 108.) At the conclusion of the testimony, petitioner moved to expand the hearing to include a finding as to whether petitioner had been arrested without probable cause. ( Id. at 128.)

On August 2, 2006, the court conducted a Dunaway hearing to determine whether the police had probable cause to arrest petitioner. After hearing the testimony of Det. Sgt. Loggia and Det. Boden, the court viewed the surveillance videos from the library and still photographs taken from the video tapes, which included a photo of petitioner leaving the library with a strap hanging from his jacket. The court found that there had been probable cause to arrest petitioner in light of "circumstances that places [sic] the victim of the crime... in the direct same vicinity as the defendant, coupled with the photos from the surveillance camera of the strap and, immediately thereafter, the change from the coat being on to off." (Hr'g 8/2/2006 at 81.[4]) The court also determined that "the testimony of both witnesses established the voluntariness of those statements beyond a reasonable doubt... in that there was probable cause and a knowing, voluntary, intelligent waiver of the Miranda warnings." ( Id. at 84-85).

On September 26, 2006, following a jury trial, petitioner was convicted of murder in the second degree in the County Court for the State of New York, County of Suffolk. ( See T. at 1259). Petitioner was sentenced to an indefinite prison term of twenty-five years to life (S.[5] at 51).

After his conviction, petitioner filed a motion pro se asking the court to set aside his sentence pursuant to New York Criminal Procedure Law § 440.20. ( See Mot. 10/26/2006.[6]) On January 19, 2007, the court denied the motion, noting that petitioner's claims could be raised on direct appeal of his conviction. (Order 1/19/2007.[7]) Petitioner filed a notice of appeal from his conviction on November 7, 2006.

Petitioner raised the following arguments on direct appeal: (1) the People failed to prove beyond a reasonable doubt that petitioner caused the death of Seybolt, and the jury verdict was against the weight of the evidence; (2) the police did not have probable cause to arrest petitioner, and his post-arrest oral admission should have been suppressed; (3) the medical examiner's expert testimony that the victim's death was a homicide denied petitioner a fair trial; (4) the court erred in admitting the forensic animation of edited surveillance videos (Exhibit 51) in evidence; (5) petitioner was denied effective assistance of counsel; (6) the prosecutor failed to prove petitioner's guilt; and (7) the sentence was excessive.

On July 22, 2008, the Supreme Court of the State of New York, Appellate Division, Second Judicial Department ("Appellate Division"), affirmed petitioner's conviction. People v. Allen, 861 N.Y.S.2d 789 (N.Y.App.Div. 2008). The court concluded that the police had probable cause to arrest petitioner, and that the trial court had properly exercised its discretion in admitting petitioner's statements to the police and the forensic animation in evidence. Id. at 790. Further, the court held that the verdict was not against the weight of the evidence, that petitioner had been afforded meaningful representation at trial, and that the sentence imposed was not excessive. Id. at 791. The court also noted briefly that the issue of the medical examiner's expert testimony had not been properly preserved for appellate review and, "in any event, does not require reversal." Id. at 791. Petitioner filed an application for leave to appeal to the New York Court of Appeals, which was denied on October 23, 2008. People v. Allen, 11 N.Y.3d 829 (2008).

By petition dated October 19, 2009, petitioner filed for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent submitted a return and memorandum of law in opposition to the petition on January 22, 2010. On January 29, 2010, petitioner requested a stay of the habeas proceedings in order to exhaust the remedies available to him under state law. The court issued a stay on March 4, 2010, to permit petitioner to file his motions in state court, and also granted an extension of time on March 30, 2010.

Petitioner then filed a pro se motion pursuant to CPL § 440.10, asking the court to vacate his conviction due to ineffective assistance of trial counsel. On October 4, 2010, the court denied the motion, citing the Appellate Division's ruling that petitioner had been afforded meaningful representation at trial as the law of the case.

Petitioner also filed a pro se application for a writ of error coram nobis to vacate, on the ground of ineffective assistance of appellate counsel, the appellate court's decision affirming his conviction. On October 26, 2010, the Appellate Division denied petitioner's application. People v. Allen, 909 N.Y.S.2d 398 (N.Y.App.Div. 2010). The Court of Appeals denied leave to appeal this decision on March 2, 2011. People v. Allen, 16 N.Y.3d 827 (2011).

The Court has fully considered all of the submissions and arguments of the parties.


To determine whether petitioner is entitled to a writ of habeas corpus, a federal court must apply the standard of review set forth in 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death ...

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