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Scott v. Racette

United States District Court, W.D. New York

January 17, 2018

ANDRE L. SCOTT, Petitioner,




         Pro 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 second-degree arson.


         The 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 (“Crandall”).

         I. The Jury Trial

         A. The Prosecution's Case

         April 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).[1] 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.).

         Steven 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[2] 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).

         A few 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).

         April's 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. (T.301).

         On the 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, [3] 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. (Id.).

         At 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).

         At 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).

         Members 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.).

         Captain 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.

         The day 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).[4] 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).

         Dr. 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).

         B. The Defense Case

         Petitioner 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 April's.

         In 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).

         Petitioner 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, 960-62).

         On the 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).

         Colon 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).

         Simmons 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).

         Lindner 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. (T.885).

         Colon's 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).

         C. Jury Verdict and Sentence

         On 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.

         II. Post-Conviction Proceedings in State Court

         Represented 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).

         In 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 denial. (SR.1100-21).

         III. The Habeas Proceeding

         In his 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.

         For the reasons discussed below, the request for a writ of habeas corpus is denied, as is the request for appointment of counsel.


         I. ...

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