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VanDeusen v. Miller

United States District Court, N.D. New York

March 8, 2017

CHRIS MILLER, Superintendent, Great Meadow Correctional Facility, Respondent.

          LAW OFFICE OF MARK A. MYERS Attorneys for Petitioner

          OFFICE OF THE NEW YORK STATE ATTORNEY GENERAL Attorneys for Respondent

          MARK A. MYERS, ESQ.



          Frederick J. Scullin, Jr. Senior United States District Judge


         Petitioner Darren T. VanDeusen filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Dkt. No. 1, Petition; Dkt. No. 1-1 and 1-2, Copies of State Court Papers, Parts 1 and 2 ("Petitioner's State Court Papers").[1]

         Petitioner challenges a 2013 judgment of conviction after a jury trial in Otsego County Court of Criminal Sexual Act in the First Degree. See Petition at 1. Petitioner's conviction stems from his sexual violation of a 10-year-old child. As a result of this conviction, the court sentenced Petitioner to a prison term of 20 years, followed by 15 years of post-release supervision. See id.; see also People v. VanDeusen, 129 A.D.3d 1325 (3d Dep't 2015).

         Petitioner raises two grounds for habeas relief: (1) he was denied effective assistance of trial counsel "due to [the] failure of trial counsel to investigate an alibi defense and file an alibi notice" (Ground One), and (2) his counsel was ineffective for failing to "familiarize himself with Y STR DNA evidence" (Ground Two). See Petition at 5-7. Respondent opposes the petition. See Dkt. No. 8, Answer; Dkt. No. 8-1, Respondent's Memorandum of Law ("Respondent's Memorandum"); Dkt. Nos. 10, 10-1 and 10-2, State Court Records ("Respondent's State Court Records").[2]

         For the reasons that follow, the Court denies and dismisses the petition.


         On April 20, 2012, an Otsego County Ground Jury indicted Petitioner for the crime of Criminal Sexual Abuse in the First Degree (Penal Law § 130.50[3]). See Respondent's State Court Records at 295. The indictment was based on Petitioner's actions during the early morning of December 13, 2011.

         At that time of the incident, Petitioner was 18 years old and had been dating the victim's older sister for more than two years. See Id. at 699-701, 728. During the morning hours of December 13, 2011, Petitioner, who was spending the night at the victim's house with his girlfriend, woke the 10- year-old in her bedroom and told her to follow him into the bathroom. Once in the bathroom, Petitioner locked the door and told the young girl to pull her pants down. Petitioner then held his hand over her mouth and had her kneel on the floor over the toilet seat. He then proceeded to penetrate the victim anally with his penis. After Petitioner was finished, he told the victim that if she told anyone about the attack, he would go to jail and she would go to "juvenile, " which scared the victim. Petitioner then cleaned himself off with a rag and put it in the laundry. The victim cleaned herself with a paper towel and threw it away in the garbage. She then dressed and went to bed. See Respondent's State Court Records at 702-707.

         The following day, the victim's brother found a condom wrapper in his older sister's bedroom and told his mother. The mother confronted Petitioner and her eldest daughter, who admitted they were having anal sex. See Id. at 729-730.

         Later that day, the mother also spoke to her 10-year-old daughter because she was concerned about how close she and Petitioner had become. When her daughter came home from school, her mother asked if Petitioner ever touched her inappropriately. The victim "froze" and then began crying saying, "no, mommy, no." She then told her mother about the previous evening. See Id. at 731-735. Her mother immediately took her to the hospital, where a certified sexual assault nurse and a pediatrician examined the victim. See Id. at 735. Two small bruise marks were observed at the 11:00 and 1:00 positions on the victim's anus, and a 2 millimeter abrasion was also found below her anus. According to the nurse and pediatrician, it appeared that the three wounds were inflicted at the same time and were consistent with the victim's account of sodomy. See Id. at 752-756.

         A police investigator, Jeffrey Moore, was also called to speak with the victim at the hospital. After the victim recounted the events, Investigator Moore obtained buccal swabs from Petitioner, the victim and the victim's two brothers. See Id. at 792-798.

         A forensic scientist, Allyson Goble, then obtained DNA profiles from the buccal swabs obtained from Petitioner and the victim. The DNA profile from the victim's buccal swab matched the DNA profile developed from the victim's perianal and anal swabs. In addition, Ms. Goble also found male DNA on the anal swabs obtained from the victim. As a result, Ms. Goble performed Y-STR (short tandem repeats) DNA testing, which only tests the "Y" strand, or the male chromosome, of the DNA. Ms. Goble then extracted Petitioner's Y-STR DNA from his buccal swab and compared his profile to the male DNA profile obtained from the victim's anal swabs. She opined that the Y-STR DNA profile from the anal swabs matched the Y-STR DNA profile from Petitioner. According to Ms. Goble, this meant that Petitioner and his biological paternal relatives could not be excluded as a donor to the male DNA found on the anal swabs. Ms. Goble stated that this Y-STR DNA profile occurs at a frequency of about 1 in every 2, 857 individuals within the world population. See Id. at 822-850.

         On November 16, 2012, a jury found Petitioner guilty of first-degree criminal sexual assault. See Respondent's State Court Records at 929. The state court subsequently sentenced Petitioner on January 7, 2013, to a determinate term of 20 years ...

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