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Ryant v. Thomas

United States District Court, S.D. New York

August 3, 2017

DAVID BRYANT, Petitioner,
v.
JUSTIN THOMAS, SUPERINTENDENT, MARCY CORRECTIONAL FACILITY, Respondent.

          Attorneys for Petitioner W. JAMES COUSINS, P.C., By: W. James Cousins, Esq., PAUL CASTELEIRO, ESQ., By: Paul Casteleiro

          Attorney for Respondent THE BRONX DISTRICT ATTORNEY'S OFFICE, By: Noah J. Chamoy, Esq.

          OPINION AND ORDER

          ROBERT W. SWEET U.S.D.J.

         Petitioner David Bryant ("Bryant" or the "Petitioner") has petitioned for a writ of habeas corpus seeking to vacate his October 25, 1976, criminal conviction (the "Petition, " Dkt. 1). The Petition raises issues concerning the statute of limitation bars set forth in the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2244 ("AEDPA"), the requirements of a claim of actual innocence, and the establishment of a constitutional claim of ineffective counsel in violation of the Sixth Amendment. The difficulties presented to this Court by these always significant and sensitive issues are heightened by the chronology, the Petitioner's confession at the time of his arrest, and the knowledge today of potentially exculpatory serological evidence on which Petitioner now relies.

         For the reasons set forth below, it is concluded that Petitioner is entitled to the relief he seeks.

         Prior Proceedings

         a. Pre-Trial Proceedings

         On or about April 23, 1975, Petitioner was indicted in Bronx County, New York, of three counts of murder in the second degree, two counts of rape in the first degree, two counts of sodomy in the first degree, sexual abuse in the first degree, and criminal possession of a weapon in the fourth degree. (See Declaration of Noah J. Chamoy dated May 23, 2016 ("Chamoy Decl."), Ex. 1, Dkt. 10.)

         On February 4 and 5, 1976, a pre-trial hearing pursuant to People v. Huntley, 15 N.Y.2d 72 (1965), was conducted before the Bronx County Supreme Court with regard to whether to suppress Petitioner's confessions to law enforcement. On June 2, 1976, the court, at Petitioner's request, reopened the hearing for additional testimony in light of People v. Dunaway, 38 N.Y.2d 812 (1975). On June 25, 1976, the court denied Petitioner's motion to suppress. (See Chamoy Decl., Ex. 2.)

         b. Trial Proceedings

         Petitioner's trial took place from July 21 to August 2, 1976. (A.457-1184.[1]) Evidence presented at trial by the prosecution and Petitioner included the following testimony.

         John Robinson ("Robinson") testified that he was with Petitioner on March 28, 1975, starting at around 1:00 p.m., when they had played basketball. Afterward, Robinson stated they had gone to pick up some bricks to bring to Robinson's house. Robinson estimated he was with the Petitioner for about two hours that afternoon. Robinson then stated he saw Petitioner again at about 6:00 p.m., walking alone across 169th Street and Wassing Avenue, though they did not talk at that time. After that, Robinson did not see Petitioner the rest of the evening. (See A.515-16.) According to Robinson, the last time he saw Petitioner, Petitioner was wearing the same clothes he had had worn while playing basketball, light color pants and a sweatshirt with writing on it. (See A.519.)

         John Friedman ("Friedman") testified that that same day, between 4:00 and 5:00 p.m. on 166th Street and Findley Avenue, he saw Petitioner. Friedman stated that he spoke to Petitioner for "about 20 minutes." (A.505-06, A.508.) According to Friedman, while speaking to Petitioner, Friedman observed that Petitioner had a knife in a leather holster on his belt. (See A.505-06, A.508-11, A.513-14.)

         Ricky Frazier ("Frazier"), a friend of Petitioner's, testified he saw Petitioner and Friedman together on 167th Street and Findley Avenue around 3:30 p.m. but that the two were arguing. Frazier stated he had to separate them by grabbing Petitioner around the waist; Frazier noted that he did not see or, while grabbing Petitioner, feel a knife on Petitioner's belt at that time. (See A.520-21.)

         Frazier testified that, after separating Friedman and Petitioner, Petitioner and he went to Frazier's girlfriend's house. Petitioner remained there until around 4:00 or 4:15 p.m. and then left. (See A.520-21.) According to Frazier, Petitioner was wearing white pants, a sweatshirt with writing on it, a gray coat, and sneakers. Frazier said he did not observe Petitioner in possession of a knife. (See A.521-22, A.528, A.849.)

         Billy Tylor ("Tylor"), a then-ten-year-old neighbor of Petitioner's, testified that he saw Petitioner twice on March 28.[2] First, sometime prior to dinner, Tylor saw Petitioner ask Karen Smith ("Smith") for some candy, to which she replied no. Second, sometime after eating dinner that evening, Tylor returned downstairs to see Bryant and Smith in front of the building. (See A.536-38.) Tylor stated that Petitioner was wearing white pants and a grayish sweatshirt. At some point thereafter, Tylor saw Smith go across the street to a corner store and, at some point after that, saw Petitioner go around the corner as well. After waiting for some time, during which time Smith did not return, Tylor went back inside to his apartment. (See A.539-41.)

         At about 7:00 p.m. that evening, Smith's mother, Christine Smith ("C. Smith"), called home from work. C. Smith's son informed her that Smith was not home. At approximately 10:10 p.m., upon returning home from work, C. Smith discovered that her daughter was still not home. C. Smith called a neighbor and had her sons go search for Smith. Still unable to locate Smith by around midnight, C. Smith reported that Smith was missing to the police. (See A.480-82.)

         At around 11 p.m., Michelle Lapsley ("Lapsley"), Petitioner's ex-girlfriend, testified that she spoke with Petitioner. Petitioner and Lapsley spoke for about fifteen minutes, during which time Petitioner sounded nervous and told Lapsley that he "did something" with a girl, but did not elaborate further. (A.645.)

         At approximately 1:45 a.m. on the morning of March 29, after learning of Smith's disappearance, Police Officer John Robinson ("Robinson") went towards the roof at 1285 Washington Avenue and stopped at the stair landing of the sixteenth floor. Robinson testified that the floor was dark and the lightbulb in the fixture on the landing was loose; when tightened, the light still did not work. As Robinson approached the top of the landing, he observed Smith's body on the landing, at which point she was wearing only socks and panties. A pair of sneakers, several articles of clothing, a white blood-stained garment, and a "Nestles $100, 000 Bar" wrapper were also found near the body. Blood was on the wall of the landing, extending three or four feet high. (See A.491-96, A.499-501, A.663, A.666-67, A.815-16.) Police officers testified that tests of the area also found blood on the stair's step landing. The landing wall was not tested for the presence of blood but was dusted for fingerprints, as was the landing door; partial prints were obtained from the wall. (See A.662-63.) The partial prints did not have enough characteristics to make an identification. (See A.670-72.)

         Dr. Josette Montas ("Montas") performed Smith's autopsy on March 29, 1975. Montas testified that Smith was stabbed 10 times. Some of the wounds were defensive in nature and located along Smith's left arm; two wounds were inflicted on Smith's neck, one was on the back of Smith's thigh, and four were into Smith's chest. One of the chest wounds penetrated Smith's chest cavity and pierced her heart. (See A.737-40, A.746-47, A.797-99.) Smith's body had "a few [four] scratches we call abrasions of the skin . . . over the back measuring each a half inch." (A.741.) Montas stated that all of the stab wounds contributed to Smith's death, but the one wound to the right side of the chest "went deeper in the lung and heart would be a good contributing factor." (A.740.) Montas also testified that Smith had "fresh" lacerations of her rectum and vagina, which Montas believed were consistent with being caused by the insertion of a penis. (See A.741-43.)

         Police Officer Richard Clark ("Clark"), whose police patrol beat included the housing complex in which Petitioner lived, testified that, sometime on March 29 after Smith's body had been found, Clark spoke with Detective Peter Chapman ("Chapman"), who had arrived at the crime scene around 3:45 a.m.. Clark told Chapman that he had, at times in the past, seen Petitioner on the same steps where Smith's body had been found. (See A.806-11, A.817.)

         Denise Friedman ("D. Friedman"), Friedman's then-sixteen-year-old daughter and Petitioner's then-girlfriend, testified that she spoke with Petitioner twice over those days. The first time was the evening of March 28 sometime between 7 and 7:30 p.m., when Petitioner told her that he was going out. (A.888.) The second time was on March 29 around 7 a.m., when she briefly called Petitioner after having breakfast. During that conversation, Petitioner told D. Friedman that he just did something to a girl, although Petitioner did not elaborate and D. Friedman did not inquire further. (See A.886-88.)

         As to D. Friedman's second conversation, Willie Craig ("Craig"), Petitioner's stepfather testified differently. Craig testified that there were no phone calls at Petitioner's apartment the morning of March 29, a fact he stated he would have known because the only phone was kept in his bedroom and there were no line extensions. (See A.969-71.)

         Around 8:30 a.m. on March 29, after speaking with Clark, Chapman and a few other police officers went to Petitioner's apartment. Upon arriving, the police found Petitioner in his underwear and a tee-shirt; the officers requested that Petitioner get dressed in the same clothes he had worn the evening before, at which point Petitioner put on a gray coat, a gray sweatshirt with "Lehman College" written on it, white pants, and sneakers. Police asked if Petitioner would accompany them to the South Bronx Housing Precinct to assist in their investigation of Smith's death. Petitioner agreed. The police read Petitioner his Miranda rights and escorted him to the precinct. (See A.549, A.574, A.818-20, A.827, A.919-20.)

         Upon arriving at the precinct, Petitioner was led by Chapman to the precinct's "Processing Room" and read his Miranda rights again, which Petitioner waived. (A.821-22.) Petitioner remained at the precinct over the course of the day, during which he was first interrogated by several officers, including Chapman, Officer Adrian Smith ("A. Smith"), and Officer Antonio Jimenez ("Jimenez"). (See A.560; A.821.) Petitioner initially and repeatedly maintained his innocence; he also denied knowing Smith or, even after seeing a picture of her, knowing her. (See A.560; A.623-24.) At this time, Petitioner described the events of March 28 as follows: from around 2:30 p.m. until around 7 p.m., Petitioner was with friends; from around 7 p.m. until around 10 p.m., Petitioner was outside by himself; and from 10 p.m. until around 2:30 a.m., Petitioner went home, ate a pork chop sandwich, watched television, and went to bed. (See A.571-74.)[3]

         Around 7:15 p.m. the evening of March 29, Detective Sergeant William Brent ("Brent") testified that he arrived at Petitioner's interrogation room. Testimony differed as to what happened next. Petitioner testified that, at this point, Brent and other officers described to Petitioner details of the crime, physically assaulted Petitioner by grabbing him, throwing him onto the floor, and kicking him, and ultimately forcing him to confess. (See A.921-23.) Brent testified differently, stating that, after a discussion with the Petitioner about "what had occurred" during the crime, Brent asked Petitioner to cooperate, at which point Brent read Petitioner his Miranda rights again, which Petitioner waived. (See A.679-80.)

         Petitioner then confessed. Specifically, Petitioner confessed that he saw Smith in the lobby of their building and that he knew her by sight, but not by name. After getting into the elevator together, Petitioner asked Smith if she wanted to have sex, to which she replied she did not know. Petitioner told Smith not to be afraid, and he led her upstairs to the landing on the sixteenth floor. (See A.680-81.) There, Petitioner confessed that he unscrewed the lightbulb, took off Smith's clothes, "dropped [his] pants, " and had intercourse with her. (A.681.) Petitioner stated he did not "remember" sodomizing her and, afterward, got hot and nervous, began to "shake all over, " and then grabbed and shook Smith. (A.681-82.) Petitioner stated that he then "came to" on a park bench outside with a knife. (A.682.)

         Assistant District Attorney Edward Haynes ("Haynes") testified that he arrived at the precinct around 9 p.m. and questioned Petitioner. Petitioner confessed twice more to Haynes, with largely the same details, except Petitioner then confessed that he recalled feeling a knife in his pocket after having sex with Smith, that he ejaculated near but not in Smith, that he threw Smith against the wall after intercourse, and that Petitioner disposed of the knife in a trash can after "coming to" in a park sometime after his encounter with Smith. (See A.837-38/ 842-67.) While confessing to Haynes, Petitioner was unable to describe the clothes that Smith was wearing. (A.846.) Petitioner also claimed he was wearing the same pants at that time that he was wearing while he was with Smith the previous evening, (A.847), stated that he did not pull back up Smith's underwear after intercourse, (A. 866), and denied calling D. Robinson at any point afterward, (A.854.)

         Petitioner testified in his own defense. In his testimony, Petitioner stated that on March 28, he wore white pants, a white sweatshirt, blue sneakers, and a jacket. At trial, Petitioner's testimony as to his activities on March 28 mirrored that which he told Chapman, A. Smith, and Jimenez when Petitioner first arrived at the police precinct. Petitioner testified that he did not own a knife. He also stated he knew Smith and had thrown glass at her about a year before, but that he was not guilty of the alleged crimes and only confessed after being physically assaulted. (See A.919-30.) Petitioner also admitted that he had asked Frazier in a letter to provide Petitioner a false alibi for between 7 and 9 p.m. the evening of March 28. (See A.935-37.)

         The prosecution also submitted serological evidence collected from the crime scene, which was testified to by Dr. Alexander Wiener ("Wiener"), the prosecution's expert serologist. Wiener testified that he examined Smith's vaginal and rectal areas and did not find evidence of semen. After examining Smith's blood-stained underwear, Wiener stated that "there probably is human semen on this garment together with blood." (A.721; see also A.718-22.) Wiener noted that part of the stained underwear area "gave a strong reaction in the acid phosphate [sic] test, " which he said was "a presumptive test for semen" and that he was able to identify the head of "at least one" sperm cell in the sample.[4] (A.721.) The acid phosphatase test in Smith's vagina, mouth, and rectum came back with a weak reaction. (A.729-30.)

         Wiener testified that he had tested Smith's blood type and determined she had type 0 blood. Wiener did not conduct any tests to determine whether Smith was a secretor or a non-secretor.[5] Wiener found the sample from the underwear reacted for type 0 blood, but he was unable to determine whether the typing was from the blood or semen collected on the underwear. (See A. 722; A.1632.) Wiener also tested Petitioner's gray coat for blood and found a spot on the coat that he was "almost surely" blood, though Wiener was unable to determine whether the blood was from a human or, for example, from meat. (See A. 722-23; A. 725.) Aside from the coat blood stain, Wiener found "no stains resembling blood" on any of Petitioner's clothes. (A.724.)

         During Wiener's cross-examination, Petitioner's trial counsel, Paul Auerbach ("Auerbach"), asked to see the reports Wiener referred to on direct examination. Upon receipt of the reports, Auerbach requested "a minute" to review them. Shortly thereafter, Auerbach asked Dr. Wiener two questions with regard to Wiener's blood typing analysis: if it was "correct that the blood types are A, B and 0" and, as a follow-up, if "there [is] a blood type called 'H'?" (A.726-27.) Auerbach otherwise examined Wiener on Wiener's analysis of the sperm on the sample collected, analysis on the blood sample from Petitioner's jacket, and analysis of the swabs taken from Smith's body. (See A.725-31.)

         On October 25, 1976, Petitioner was found guilty on all counts, though the sexual abuse and criminal possession of a weapons charges were later dismissed by the state court. (See A.1155-56; 1170; 1182.) Petitioner was sentenced to three indeterminate terms of imprisonment from 25 years to life for the murder counts and four indeterminate terms of imprisonment from 8 1/3 to 25 years on the sexual assault charges. All sentences were to run concurrently except for one sentence imposed for first-degree sodomy, which was to run consecutively to the murder sentence. (See A.1170-83.)

         c. Post-Trial Proceedings

         On July 10, 1979, on appeal, the New York First Department affirmed Petitioner's conviction in a three to two decision. People v. Bryant, 71 A.D.2d 564 (1st Dep't 1979). On August 16, 1979, the First Department granted leave to appeal to the New York Court of Appeals, (Chamoy Decl. at ¶ 11), which, on June 24, 1980, unanimously affirmed Petitioner's conviction and, inter alia, upheld the lower court's finding that Petitioner's confession was not involuntarily obtained, People v. Bryant, 50 N.Y.2d 949, 950 (1980). On November 3, 1980, the United States Supreme Court denied Petitioner's petition for a writ of certiorari. Bryant v. New York, 449 U.S. 958 (1980).

         On August 12, 2005, Petitioner, acting pro se, filed a Freedom of Information Law ("FOIL") request, pursuant to New York Public Officers Law § 84 et seq., with the Office of the District Attorney, Bronx County ("Bronx DA"). The Bronx DA located an incomplete appeals folder containing only Respondent's Brief on appeal in the First Department and Petitioner's Brief and Appendix in the Court of Appeals, both of which Petitioner received on July 10, 2006. Petitioner filed similar FOIL requests with the New York City Police Department ("NYPD") and, on May 31, 2017, filed a civil action seeking an order directing the NYPD to provide Petitioner with access to records pertaining to the Smith investigation. (See Chamoy Decl., Ex. 6; id. at ¶¶ 16-17.)

         In July 2008, Petitioner and the NYPD entered into a Stipulation of Settlement, providing Petitioner with certain paperwork from the NYPD file, including several photographs, a one-page request for Laboratory Examination dated April 1, 1975, and a one-page memorandum dated July 23, 1976. (See Chamoy Decl. at ΒΆ 18.) Around this time, ...


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