United States District Court, W.D. New York
ANDRE L. SCOTT, Petitioner,
STEVEN RACETTE, Respondent.
DECISION AND ORDER
HONORABLE MICHAEL A. TELESCA, UNITED STATES DISTRICT JUDGE.
se petitioner André L. Scott
(“Petitioner”), presently incarcerated in
Respondent's custody, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. Petitioner challenges the
constitutionality of the judgment entered against him in New
York State, Genesee County Court (Noonan, J.) on October 28,
2010, following a jury verdict convicting him of arson,
first-degree burglary, attempted second-degree murder, and
BACKGROUND AND PROCEDURAL HISTORY
conviction here at issue stems from Petitioner's alleged
involvement in an accelerant-spiked fire that erupted on the
night of January 24, 2009, at the rooming house of Steven
Crandall (“Steven”), the father of
Petitioner's former paramour, April Crandall
The Jury Trial
The Prosecution's Case
testified that she and Petitioner began dating in March of
2008, and moved in together in June. At some point prior to
the fire, she had moved out of his apartment because they
were not getting along. However, they still talked on a daily
basis. (T.262, 270). Around the end of December 2008, or the
beginning of January 2009, April testified that she told
Petitioner she did not want to talk to him or see him at all.
(T.262). According to April, this made Petitioner “very
upset, ” and he became “really mad” when
she “kept ignoring his phone calls.” (T.263, 264,
266-67). On January 24, 2009, Petitioner left her a voicemail
stating it “was over[, ]” after which he listed
off the names of her mother, father, and brothers, and a
number of other family members, and stated that “they
were done” and it was “over for them, too.”
(T.263). April related that Petitioner asserted,
“I'm going to kill your mom, your dad, your
brothers[.]” (T.265). April told her father, Steven,
about this message. (Id.).
testified that sometime in early December of 2008, April and
Petitioner paid a visit to him at his apartment on the second
floor of 12 Elm Street in Batavia, New York. After they all went
out for lunch, Petitioner and April dropped Steven off at his
apartment. Steven testified that Petitioner did not enter the
basement of 12 Elm Street on that occasion, and did not visit
his residence again. (T.323-25).
days before the fire, Steven testified, there were some phone
calls and texts among him, Petitioner, and April; he was
aware that the two of them were having problems. One text
from Petitioner to Steven included a “revealing
picture” of his daughter. (T.326).
cousin, William Sachs (“Sachs”), testified that a
few days before the fire on January 24, 2009, Sachs had a
conversation with Petitioner, who was upset about April being
pregnant but not sure who the father was. (T.304). Petitioner
also was “angry at [April's] father” because
“supposedly they had some words on the phone.”
(Id.). Petitioner told Sachs that “some stuff
was going down, and he was going to take care of it, ”
by “get[ting] rid of things and tak[ing] care of
people.” (T.296, 301). Sachs also testified that
Petitioner remarked that he “was going to get rid of
part of [Sachs'] family[, ]” meaning “April,
Steve, stuff like that.” (T.296). Sachs told Petitioner
“not to do anything stupid” that would land him
back in jail. (T.296). Sachs testified that he liked
Petitioner and that they had hung out together on occasion.
day of the fire, Steven testified, Petitioner called him
sometime before 7 p.m., and was “talking to [him] with
some harsh words.” (T.328). Steven chastised Petitioner
about the inappropriate photograph of April, telling him
“don't be the streets; be an example on the
streets, ” and “[t]hat's when [Petitioner]
said[, ] [“]you don't want me to come out
there.” (T.327). Steven described Petitioner's tone
of voice as “[t]hreatening, harsh[, ]” and
“[m]eaningful.” (T.328). Steven, who was on
parole at the time,  immediately called his parole officer,
Christopher Van Schaik (“P.O. Van Schaik”) and
left voicemail messages reporting Petitioner's threats.
(T.328-29; 545-47). Steven and his roommate proceeded to
watch a DVD in their living room. (T.329-31). Steven recalled
hearing a car in the driveway at about 10:00 p.m.; he looked
out of the window but did not see anything. A little later,
Steven testified, he heard something outside his door; he
paused the DVD but did not hear anything else. (T.332).
Steven then recalled hearing a noise outside; he looked out
the window but could not figure out what had made the sound.
around the same time, Steven's downstairs neighbor, Terry
Luczak (“Luczak”) heard someone pass through the
side-door of the house, which is used to access the second
and third floor apartments. She also heard “very, very
heavy footsteps” “coming up the stairs, from the
apartment, the outside door, the upstairs [i.e.,
Steven's] apartment.” (T.379, 382; T.383-85).
Luczak said that the footsteps, which sounded “like
[they were from] two different people[, ]” stopped at
the door to her apartment that led “out to the hall,
the stairwell that goes up to the upstairs
apartments[.]” (T.379-80, 381-82, 383). Almost
immediately, Luczak testified, there was an explosion that
shook the building. In the space between the bottom of the
door and the floor, she could see flames in the hallway.
(T.379-81). Then she heard the outside door close.
(Id.). She and her roommate left through a different
door, located at the front of the house. (T.386).
around the same time, Steven also heard a “loud
boom” against his apartment door. Steven testified that
he opened the door to see a fire burning in the carpeted
stairwell at his doorstep. He grabbed a fire extinguisher,
but he was driven back inside due to the flames. He and his
roommate evacuated by means of the fire escape. (T.333-35).
of the Batavia Fire Department (“BFD”) responded
to the scene and extinguished the fire. Batavia Police
Department (“BPD”) Detective Charles Dudek
(“Det. Dudek”) arrived soon thereafter. Upon
entering the side door off the driveway, he noticed a
“strong odor of gasoline.” (T.394). While going
down the cellar stairs, Det. Dudek encountered BFD Captain
James Steinbrenner (“Capt. Steinbrenner”) holding
a Clorox bottle, and he had the cap off. (T.395). Det. Dudek
asked Capt. Steinbrenner to replace the Clorox bottle where
he found it because he was not wearing gloves. (T.396). Det.
Dudek testified that he also noticed a white matchbook on the
second stair from the bottom. (Id.).
Michael Drew (“Capt. Drew”) of the BFD arrived
after the fire was extinguished and smelled gasoline
immediately upon entering. (T.509, 516-18, 532-33). Capt.
Drew observed a “deep charring burn” to the
stairs and landing and concluded that the fire had been very
hot and unusually low to the ground. Based on this pattern,
Capt. Drew believed that a heat source, such as a flammable
liquid on the staircase, accelerated the fire. Capt. Drew
testified that he found no evidence that the fire's
origin was electrical, accidental, or weather-related, and he
concluded that it had been deliberately set. (T.520-37).
Capt. Drew indicated that the Clorox bottle and cap, as well
as multiple floor and carpet samples from the scene of the
fire, were packaged and sent to the New York State Police
forensic laboratory for testing.
after the fire, Det. Dudek took statements from Steven and
April. He and a colleague, Detective Sergeant Corona
(“Det. Sgt. Corona”), then traveled to Rochester
and enlisted the help of the New York State Division of
Parole (“Parole Division”) to locate Petitioner.
Det. Dudek, Det. Sgt. Corona, P.O. Van Schaik, and two other
parole officers staked out Petitioner's apartment
complex. At about 8:50 p.m., they saw Petitioner's black
GMC Yukon SUV into the parking lot. (T.400-01). Petitioner
was approached by one of the parole officers and taken into
custody. The other two parole officers searched the vehicle
and recovered two cell phones. P.O. Van Schaik testified that
Petitioner had a “strong odor” of alcohol on his
breath. (T.401-02; T.551, 553-54, 585). Petitioner was
transported to the Parole Division office in Rochester where
he was administered an Alco-Sensor by P.O. Van Schaik, who
also obtained a buccal swab from him to test for drugs.
(T.403-08, 494-95). The buccal swab subsequently was provided
to Det. Dudek, who sent it to the New York State Police
Forensic Investigation Center (“FIC”) for DNA
testing. (T.403-06, 408, 494-95, 552-58).
Frank Padula, a forensic scientist at the FIC testified as an
expert in fire debris analysis, and stated that his testing
of the Clorox bottle and samples of wood and carpet from 12
Elm Street showed that they all contained gasoline.
(T.604-16). Peter Lewis (“Lewis”), a laboratory
scientist at the FCI, testified regarding his DNA testing on
the various items of physical evidence recovered at the fire
scene and the buccal swab taken from Petitioner. He obtained
swabs from the matchbook, the Clorox bottle cap, the
bottle's handle, and various points on the bottle itself.
He testified that the cap of the Clorox bottle contained a
mixture of Petitioner's DNA and the DNA of another
unidentified person, with Petitioner's DNA being the
major contributor. (T.668-73). Defining the term “major
contributor, ” Lewis testified that the possibility of
selecting an unrelated individual with a single tandem repeat
(“STR”) DNA profile matching that of the major
contributor was less than 1 in 300 billion. (T.673; see
also T.669-70). Lewis explained that the handle of the
Clorox bottle contained a DNA mixture that was consistent
with Petitioner's DNA profile and the profile DNA of
another donor. (T.666-67). Lewis stated that the body of the
Clorox bottle yielded a partial STR DNA profile that was
consistent with Petitioner's DNA profile and the profiles
of two additional donors. (T.667-68). Lewis stated that his
laboratory used the term “consistent” when some
alleles were missing in the comparison profiles or there was
an absence of any DNA because there was not much on the swab
to begin with. (T.665). Finally, Lewis testified that he
developed a partial DNA profile from the matchbook that was
consistent with Petitioner's DNA. (T.665-66).
The Defense Case
recalled meeting April in early February of 2008; she moved
in with him in mid-July of 2008. (T.903-04). Petitioner
testified that by mid-October of 2008, they were not getting
along, and April moved out. However, Petitioner said, the two
maintained daily contact and continued to have a sexual
relationship. (T.906-07, 916, 965). Petitioner testified
stated that after breaking up with April, he got back
together with an old girlfriend, Heather Bentley
(“Bentley”), who was an acquaintance of
November of 2008, Petitioner finalized plans to sell a car to
April's cousin, Sachs. (T.907-09). On January 18, 2009,
Petitioner testified, April told him that she was pregnant
and that he might be the father. (T.909-10). On January 21,
2009, Petitioner disclosed to April that he was having sex
with Bentley. According to Petitioner, April became angry
upon learning this; she began obsessively phoning him, but he
ignored her calls. (T.918, 964). Petitioner acknowledged that
he sent April at least 41 text messages in the two days
preceding the fire. (T.970-71). Petitioner also conceded that
he may have sent April as many as 45 text messages on the day
of the fire, and that his last text to her that day was sent
at 6:43 p.m. (T.962-64).
testified that he met April's father, Steven, once at his
apartment, on the day that they all had gone out for pizza in
Batavia. According to Petitioner, even after April moved out,
he and Steven shared friendly text messages. (T.914-15).
Petitioner admitted that the day before the fire, he sent
Steven a topless photograph of April via text message, but
testified that he did so accidentally. (T.918-19, 922, 948,
night of the fire, Petitioner testified, he went to a party
hosted by his friend Denise Colon (“Colon”) at
her house in Rochester at around 7:00 p.m. He stayed there
until between 10:30 and 11:00 p.m., except for a brief errand
that he ran with Savon Simmons (“Simmons”) to buy
beer, liquor, chips and cigarettes. Petitioner said that
after the party, Simmons drove him to his cousin's house.
(T.905-06, 926-27, 949-50). Petitioner said that he discussed
the events of that night with his alibi witnesses (Colon,
Simmons, and Lauren Lindner (“Linder”)) when they
visited him in jail. (T.946-47).
described herself as Petitioner's
“god-sister” and said that Petitioner and his
mother were her closest friends. (T.798-803). Colon testified
that she had prior arrests for possession of a weapon and
convictions for possession of marijuana and driving while
intoxicated. (T.824). Colon admitted that she refused to
speak to the police but did provide a statement to a defense
investigator. (T.818-19, 831).
testified that he and Petitioner left Colon's party to
buy Hennessey at around 9:15 p.m., returned to the party
after running that errand, and then left for good at around
10:00 or 10:30 p.m. (T.836-38, 841-43). Simmons dropped
petitioner off at Petitioner's cousin's house.
(T.843, 859). Simmons gave a statement to a defense
investigator but did not respond to a police officer who was
investigating the case. (T.849, 852, 860-61).
also testified in support of Petitioner's alibi defense.
She admitted to a prior arrest for drug-possession. She
acknowledged that, prior to trial, she reviewed her
anticipated testimony with Petitioner. (T.881, 886-87).
Lindner testified that Petitioner arrived at Colon's
party on January 24, 2009, at around 5:00 or 6:00 p.m.
Lindner recalled that at around 8:30 p.m., Petitioner left
briefly to buy a bottle of Hennessey. He departed at 11:00
p.m. and did not return to the party. Lindner stated that
Simmons drove her and Colon to visit Petitioner in jail.
daughter, K.J., who refers to Petitioner as her uncle,
testified that Petitioner attended a party at her
mother's house the night before he was arrested for the
parole violation. She recalled that Petitioner left the party
at 11:00 p.m., but she could not remember at what time any of
the other guests left. (T.890-95, 898). K.J. testified that
she discussed her testimony with her mother, who forbade her
from talking to the police. (T.895-97).
Jury Verdict and Sentence
August 31, 2010, the jury returned a verdict finding
Petitioner guilty of all charges submitted to it.
(T.1097-99). Prior to sentencing, new counsel was substituted
for trial counsel, at Petitioner's request. On October
28, 2010, the trial judge sentenced Petitioner to concurrent
determinate terms of 20 years' imprisonment on each
conviction, to be followed by 5 years of post-release
supervision on each conviction.
Post-Conviction Proceedings in State Court
by new counsel, Petitioner pursued a direct appeal of his
conviction, which was unanimously affirmed. See People v.
Scott, 93 A.D.3d 1193 (4th Dep't), lv.
denied, 19 N.Y.3d 967, recons. denied, 19
N.Y.3d (1001) (2012).
January of 2013, Petitioner filed a pro se
application for a writ of error coram nobis
challenging appellate counsel's ineffectiveness, which
was summarily denied. People v. Scott, 104 A.D.3d
1261 (4th Dep't), rearg. denied, 107 A.D.3d 1502
(4th Dep't 2013), lv. to appeal rearg. denied,
22 N.Y.3d 1159 (2014), lv. denied, ___ N.E.3d ___
(Mar. 25, 2014), recons. denied, 23 N.Y.3d 1025,
recons. denied, ___ N.E.3d ___ (June 24, 2014). In
May of 2014, Petitioner filed an unsuccessful pro se
motion in the trial court challenging the orders of
protection issued at the sentencing hearing. In August of
2014, again acting pro se, Petitioner filed a motion
in the trial court pursuant to New York Criminal Procedure
Law (“C.P.L.”) § 440.10 to vacate his
conviction, which was denied on October 30, 2014
(SR.1093-96). Petitioner's motion to reargue and to renew
was denied on February 27, 2015. (SR.1099-1100). The Fourth
Department denied leave to appeal, and reargument of that
The Habeas Proceeding
timely petition for a writ of habeas corpus, Petitioner
asserts that (1) he is actually innocent; (2) trial and
appellate counsel were ineffective; (3) the evidence was
legally insufficient; (4) his conviction was obtained through
the use of a suggestive identification procedure; (5) he was
subjected to an unlawful search and seizure; (6) he was
deprived of his right to present a defense; (7) the jury was
unconstitutionally selected; (8) the police and prosecution
engaged in misconduct; (9) his conviction rested on
unreliable scientific evidence; and (10) the sentence was
harsh and excessive and discriminatory. Petitioner also has
moved for the appointment of counsel. Respondent answered the
petition, and Petitioner filed a reply brief and a traverse.
reasons discussed below, the request for a writ of habeas
corpus is denied, as is the request for appointment of