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Nickels v. Conway

United States District Court, W.D. New York

July 22, 2015

TOBIAS NICKELS, Petitioner,
v.
JAMES CONWAY, Respondent.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

I. Introduction

Represented by counsel, Tobias Nickels ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is serving a sentence of 24-years-to-life at Auburn Correctional Facility as the result of a judgment of conviction entered against him on June 13, 2005, in Steuben County Court of New York State. Following a bench trial, County Court Judge Peter Bradstreet found Petitioner guilty of one count of depraved indifference murder of a person less than 11 years-old (New York Penal Law ("P.L.") § 125.25(4))[1] in connection with the death of his girlfriend's three-year-old son. Petitioner was acquitted of the other count of the indictment charging intentional murder (P.L. § 125.25(2)).

II. Factual Backg round

In February 2004, Melissa Kernan ("Kernan") and her three-year-old son, Corbin Strassner ("Corbin"), lived with Petitioner at 2013 Michigan Street in Wayland, New York. T.149, 153.[2] At first, Corbin enjoyed spending time with Petitioner. However, after living together for approximately one month, Corbin would start to cry when he was around Petitioner. T.158-67. Kernan worked nights, and at those times, Corbin would either spend the night with Petitioner or with his biological father, James Strassner ("Strassner"). T.168. After spending time at Strassner's house, Corbin would cry and would not want to go home with Petitioner. T.565-67.

At approximately 10:00 p.m. on February 8, 2004, Kernan left for her job in Rochester, leaving Corbin in Petitioner's care. Earlier that day, Kernan had helped her son get dressed and noticed a small, older bruise on his back and "a couple small bruises on his shins", but no other marks. T.189-90.

At approximately 2:00 a.m. on February 9, 2004, Petitioner knocked on the door of the trailer across the street, where Kimberly Fronk lived. Petitioner asked her to call an ambulance because his child had fallen. T.32. When the ambulance arrived about 10 minutes later, Corbin was unresponsive and "there was a large swelling on the left side of his head." T.48. On the way to Noyes Memorial Hospital in Dansville, Petitioner told the emergency medical technician that he was in bed when he heard a crash, and also stated that Corbin had been standing on the kitchen counter reaching for a gun cleaning kit, and had fallen off the counter. T.50.

Dansville Police Department Officer Chad VanAuken ("VanAuken") was called to the hospital by a hospital staff member, and he observed Corbin and Petitioner arrive. In response to VanAuken's question about what happened to Corbin, Petitioner stated that he was asleep when he heard a loud crash; he went into the kitchen and found Corbin on the floor. T.67. Petitioner appeared emotional and was crying. T.68-69. Petitioner then spoke with Police Deputy Michael Williams, and told him that he and Corbin were asleep together on the living room floor and that Petitioner was awoken by a loud crash. When he woke up, he saw Corbin lying on the floor with an overturned chair next to him. T.83-85. Sergeant Michael Smith ("Sgt. Smith") of the Steuben County Sheriff's Department also questioned Petitioner. Petitioner again stated that he and Corbin were sleeping on the living room floor. He added that Corbin woke up and went into the kitchen to get a gun cleaning kit out of the top cupboard. T.116. Petitioner was woken by a "giant crash, " and found Corbin lying on the floor. T.116. Sgt. Smith asked one of the doctors treating Corbin if the child's injuries were consistent with a fall, and the doctor said, "possibly, " but that they would know more when Corbin was airlifted to Rochester. T.117. Sgt. Smith then read Petitioner his Miranda rights, which Petitioner waived. After giving a written statement, Petitioner was driven to a friend's house.

Meanwhile, Corbin had been transferred by helicopter to Strong Memorial Hospital in Rochester. The next morning, Petitioner, Kernan, Kernan's mother, and Strassner, and Strassner's parents were all sitting in a waiting room when a social worker questioned Petitioner about what happened to Corbin. Petitioner said Corbin fell and that petitioner found him lying on his back. Petitioner hesitated and then said that he found Corbin lying on his left side. T.198. At that point Strassner's father accused Petitioner of lying and "went after" Petitioner. Shortly thereafter, Petitioner left the hospital, because he did "not feel welcome there" and because "everybody thought he did it." T.203.

At 11:00 a.m., Kernan was permitted to see Corbin, and she noticed that he had bruises all over his body, which had not been there when she had left for work the previous night. T.194-95. At about 12:30 p.m., forensic pediatrician Dr. Ann Lenane found Corbin in unstable condition; he was on a respirator to help him breathe and was receiving medications to stabilize his blood pressure. He also was showing signs of brain swelling. T.338-40. According to Dr. Lenane, the bruises were not consistent with Corbin having fallen from the counter. T. 348, 355. Rather, his injuries were similar to what a child who had been in a severe car accident would have sustained. Dr. Lenane believed that this was possibly the worst case of cranial injuries that she had ever seen. T.356. Dr. Lenane opined, "I think he was beaten in some way.... The number of bruises, location, the complexity of the fractures, severity of the head injury and severity of the eye bleeds are signs of severe multiple trauma, not like a single fall." T.357.

At around 1:00 p.m., Kernan called Petitioner to inform him that Child Protective Services and the police wanted to talk to him and to view the trailer, and that he needed to let them in. Petitioner responded that he was going to his father's house and that she should come let them in herself. T.205. When Kernan called Petitioner later that day, Petitioner said he had wanted to commit suicide, but his father and brother talked him out of it. T.207. Kernan informed him that the doctors believed that Corbin would not survive. Petitioner responded that he would be hiding out in the barn. T.210-11.[3]

Meanwhile, Investigator Eric Tyner ("Inv. Tyner") of the Steuben County Sheriff's Department searched the trailer Petitioner shared with Kernan and found a metal pipe wrapped in electrical tape underneath a pile of clothes in the bedroom. T.545-46. The pipe was clean and there were no bodily fluids on it. Inv. Tyner measured the height of the kitchen counter from which Corbin allegedly fell to be 3 feet. T.547. Petitioner was arrested the following day, on February 10, 2004.

After Corbin's death, Monroe County Deputy Medical Examiner Caroline Dignan, M.D., performed an autopsy on the boy's body. In her opinion, Corbin's death was a homicide and occurred as the result of "blunt head trauma". T.256, 298. Corbin had sustained several contusions on the right side of his forehead measuring up to 1-inch in size, a very large contusion on the left side of his head near his left eye, and an abrasion near his right eye and nose. T.258. Additional abrasions covered Corbin's entire body-the back of his head, both the right and left shoulders, his whole back, below his right nipple, the left side of his chest, his right elbow and forearm, his left hip, his right and left thighs, and his left shin and right ankle. One bruise on his lower back measured 2-1/4 inches. T.259-60. Dr. Dignan observed was a large complex skull fracture and a "hemorrhage over the entire brain." T.273. There were also hemorrhages to his eye, and his retina was "torn away from its normal attachment." T.278. Dr. Dignan opined that Corbin's injuries were not consistent with Petitioner's story that the child fell off of a 3-foot-high kitchen counter, based on the extent of the injuries and the degree of force that was necessary to inflict them; she opined that it would take more than a fall from the counter to produce such injuries. T.286-87. Dr. Dignan further stated that the location of the bruises on Corbin's body were not consistent with his having fallen, but were much more consistent with inflicted trauma. T.287-88.

The defense called two medical experts, Dr. Shaku Teas and Dr. Robert Greendyke, each of whom testified that the injuries sustained by Corbin could have been caused by a fall from a kitchen counter, as hypothesized by Petitioner. T.406-08, 438-41, T.615-16. Dr. Teas testified about studies indicating that, in certain cases, an infant can sustain a skull fracture from a fall of about 3 feet. T.396-99.[4] Dr. Teas opined that some bruising may have been the result of the tubing and instruments used by hospital staff to treat Corbin.

Dr. Greendyke testified that Disseminated Intravascular Coagulation ("DIC"), a condition that affects the blood's clotting ability, can be caused by trauma and can result in bruising or hemorrhages. T.600, 605.[5] Dr. Greendyke opined that some of the bruising was a result of ecchymosis (an area of bleeding into the skin) which was "greatly exaggerated" by the DIC. T.604, 609. According to Dr. Greendyke, the bruising on Corbin's extremities was evidence of internal bleeding, not forcefully inflicted trauma. T.616. Dr. Greendyke opined that the evidence permitted no means of determining whether death was accidental or due to intentionally inflicted trauma. T.617.

Prior to rendering his verdict on March 17, 2005, Judge Bradstreet commented, "I'll just note that I did not ascribe a great deal of weight to the testimony of Dr. Greendyke and Dr. Teas." T.686. Judge Bradstreet then found Petitioner not guilty of intentional murder (P.L. § 125.25(1)) as charged in the first count of the indictment, but guilty of depraved indifference murder of a person less than 11-years-old (P.L. § 125.25(4)) as charged in the second count. T.686-87.

On June 13, 2005, Petitioner appeared before Judge Bradstreet, who sentenced him to an indeterminate term of 24 years to life in prison, which was less than the maximum sentence possible of 25 years to life. The judgment of conviction was unanimously affirmed on direct appeal by the Appellate Division, Fourth Department, of New York State Supreme Court. People v. Nickels, 37 A.D.3d 1110 (4th Dep't), lv. denied, 8 N.Y.3d 988 (2007).

III. The Federal Habeas Proceeding

The Court assumes the parties' familiarity with the procedural history of this matter, which is set forth in more detail this Court's Decision and Order granting Petitioner a stay and abeyance in order to pursue an application for a writ of error coram nobis. Following completion of the coram nobis proceeding, Petitioner returned to this Court and filed a motion to lift the stay (Dkt #35), and the case has been restored to the Court's active docket.

The Amended Petition ("AP") (Dkt #27), is the operative pleading in this matter. In it, Petitioner asserts three main grounds for relief, with multiple subgrounds. As his First Ground for Relief (AP ¶¶ 90-111), Petitioner claims that he was denied a fair trial and due process of law because the prosecution offered insufficient evidence to prove depraved indifference murder. As his Second Ground for Relief (AP ¶¶ 112-126), Petitioner asserts a violation of Brady v. Maryland, 373 U.S. 83 (1963). As his Third Ground For Relief, Petitioner asserts he was denied the effective assistance of trial, appellate, and federal habeas counsel. The first subground pertains to trial counsel's performance. See AP ¶¶ 134-140. The second subground of the Third Ground for Relief attacks appellate counsel's performance. See AP ¶ 141-145. The third subground of the Third Ground for Relief relates to Petitioner's initially retained habeas counsel, the now-defunct Pro Se Litigators, whom he asserts provided ineffective assistance by filing an untimely habeas petition.

Respondent has filed an answer and memorandum of law in opposition to the amended petition, asserting the affirmative defenses of non-exhaustion and procedural default as to a number of Petitioner's claims. Respondent also argues that all of the claims lack merit. Petitioner has filed a reply brief.

For the reasons discussed below, the Court denies Petitioner's request for a writ of habeas corpus.

IV. Analysis of the Amended Petition

A. Legal Insufficiency of the Evidence (First Ground for Relief)

Petitioner was convicted of one count of P.L. § 125.25(4), which is proven when, "[u]nder circumstances evincing a depraved indifference to human life, ... the defendant recklessly engages in conduct which creates a grave risk of serious physical injury or death to another person less than eleven years old and thereby causes the death of such person[.]" N.Y. PENAL LAW § 125.25(4). Petitioner now contends that the prosecution's evidence did not prove recklessness or depraved indifference but instead suggested that Petitioner intentionally caused Corbin's death, and asserts that the prosecution focused only an intentional-murder theory at trial. Petitioner also argues his "acts of care and concern" for Corbin precluded a finding of depraved indifference.

1. Background

At the time of his trial and conviction in 2005, the law concerning depraved indifference murder was stated in People v. Register, 60 N.Y.2d 270, 276 (1983). Recklessness was the mens rea, and the defendant's depravity and indifference were assessed objectively based on a review of the circumstances of the crime. See, e.g., People v. Sanchez, 98 N.Y.2d 373, 379-80 (2002) (affirming that "the requirement of circumstances evincing a depraved indifference to human life... focuses not on the subjective intent of the defendant, but rather upon an objective assessment of the degree of risk presented by defendant's reckless conduct'") (quoting Register, 60 N.Y.2d at 277). During this period, the New York Court of Appeals approved the use of twincount indictments such as the one handed down in Petitioner's case, finding that it was not inappropriate for the fact-finder to be permitted to decide whether a defendant should be convicted of intentional or depraved indifference murder. See, e.g., Sanchez, 98 N.Y.2d at 384, 386. In 2003, the New York Court of Appeals issued People v. Hafeez, 100 N.Y.2d 253, 259 (2003), the first of its decisions representing a shift toward restricting the circumstances under which a defendant could be found guilty of depraved indifference murder. Other cases followed, further narrowing the class of fact-patterns to which depraved indifference applied. See, e.g., People v. Suarez, 6 N.Y.3d 202, 207, 212-13 (2005) (per curiam) (stating that "[a] defendant may be convicted of depraved indifference murder when but a single person is endangered in only a few rare circumstances"); People v. Payne, N.Y.3d 266, 270 (2004).[6] Appellate counsel cited this trio of cases and focused on what he characterized as the "course of conduct" element of the offense. He argued that there was "no causal connection between the alleged course of conduct (which purportedly caused the bruising [on the child's body]) and the child's actual cause of death[, ]" Petitioner's Appellate Brief ("Pet'r App. Br.") at 31-32, which was ...


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