United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE.
se petitioner Dylan Schumaker (“Petitioner”
or “Schumaker”) seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 on the basis that he is
being unconstitutionally detained in respondent Michael
Kirkpatrick's (“Respondent”) custody.
Petitioner is incarcerated pursuant to a judgment of
conviction entered against him on January 10, 2014 in New
York State Supreme Court, Erie County (the “trial
court”), following a jury trial in which he was
convicted of murder in the second degree. Petitioner was
sentenced to an indeterminate term of incarceration of 25
years to life, which was reduced on direct appeal to 18 years
petition, Petitioner asserts that his continued incarceration
is unconstitutional because: (1) the intentional murder
verdict was not supported by legally sufficient evidence; (2)
the prosecution exercised two peremptory challenges in a
discriminatory manner; (3) trial counsel provided ineffective
assistance; (4) appellate counsel provided ineffective
assistance; (5) his purported waiver of his Miranda
rights was insufficient, rendering his custodial statements
involuntary; and (6) his right to due process was violated by
the admission of prejudicial uncharged bad acts, the use of
evidence that was not marked for identification, the knowing
use of perjured testimony, and the display of the
victim's body and injuries at trial and in summation. For
the reasons discussed below, the Court finds that Petitioner
has not shown he is entitled to federal habeas relief.
Factual Background and Procedural History
The Underlying Crime, Initial Investigation, and
time of the underlying crime, Petitioner was 16 years old and
resided with his mother, his 19-year-old girlfriend, Ashlee
Smith (“Ashlee”), and Ashlee's two children,
23-month-old Austin and two-month-old Kristopher. Petitioner
is not the biological father of either Austin or Kristopher.
On March 19, 2013 at roughly 4:20 p.m., Ashlee went to work
at her job at Pizza Hut, leaving Austin and Kristopher in
approximately 8:20 p.m. that same day, Petitioner called 911
to report an unresponsive child. Erie County Sheriff's
Deputy Benjamin Pisa (“Deputy Pisa”) responded to
the call. Upon arriving at the scene, Deputy Pisa ran past
Petitioner and his mother, who were standing on the porch, to
an upstairs bedroom where he found Austin lying on a bed,
bleeding out of his mouth and with large bruises on both
sides of his face. Austin's pupils were dilated and he
did not appear to have a pulse. Deputy Pisa undertook
lifesaving measures (without success) until an ambulance
arrived, at which time he wrapped Austin in a blanket,
carried him downstairs, and placed him in the ambulance.
County Sheriff's Deputies Donald Hoelscher (“Deputy
Hoelscher”) and Jason Bouton (“Deputy
Bouton”) arrived at the scene shortly after Deputy
Pisa. As Deputy Hoelscher passed Petitioner on the porch, he
overheard Petitioner say, “oh my God, she's going
to kill me.” Deputy Bouton overheard Petitioner say,
“I can't believe I did this” and “oh my
God, I didn't mean for this to happen.” Deputy
Bouton asked Petitioner, who was still on the porch, what had
happened. Petitioner stated that Austin had fallen down the
stairs, but that he was acting normal thereafter and had been
bathed and put to bed. Petitioner also told the police that
he had sent Ashlee a text message after Austin fell down the
stairs. As Austin was moved out of the house, Petitioner
stated that he felt like he had killed a thousand babies.
was at the scene by this time, but was told she could not
ride in the back of the ambulance with Austin. Upon hearing
this, Petitioner became agitated. Deputy Pisa handcuffed
Petitioner and placed him in the back of a patrol car, but
explained that Petitioner was not under arrest and was being
restrained only so he could compose himself. After Petitioner
calmed down, Deputy Pisa removed the handcuffs. While
Petitioner was still in the back of the patrol car, he agreed
to turn his cell phone over to the police. The police seized
the phone to confirm Petitioner's statements about having
Pisa transported Petitioner to the police substation in his
patrol car. At the police substation, Petitioner sat on a
bench for roughly an hour before Erie County Sheriff's
Department Detective John Graham (“Detective
Graham”) asked him to speak in private. As Detective
Graham and Petitioner walked to a conference room, Petitioner
asked if Austin had died, and Detective Graham said that he
had. Once in the conference room, Detective Graham told
Petitioner that he was not under arrest and that he was free
to go. Detective Graham then administered Miranda
warnings to Petitioner, advising him that he had the right to
remain silent, that anything he said could be used against
him in a court of law, that he had the right to have counsel
present during questioning, and that an attorney would be
provided if he could not afford one. Detective Graham read
each warning individually and asked Petitioner if he
understood it. Petitioner confirmed that he understood the
warnings and, at 11:58 p.m., placed his initials on the card
from which the warnings were read. Petitioner agreed to speak
to the police and did not ask that anyone else be present
during the questioning.
to both Detective Graham and Erie County Sheriff's
Department Detective Gregory McCarthy (“Detective
McCarthy”), Petitioner stated that Austin had fallen
down the stairs aat approximately 5:20 p.m. and that he had
texted Ashlee to let her know. Austin was bleeding from the
mouth at that point, likely from biting his tongue. At 6:30
p.m., Petitioner fed and bathed Austin, and at 8:00 p.m. he
put him to bed. At 8:20 p.m., Petitioner checked on Austin
and observed that he was sweaty, limp, and non-responsive.
Petitioner alerted his mother, who told him to call 911.
McCarthy left the room and Erie County Sheriff's Captain
Gregory Savage (“Captain Savage”) entered.
Petitioner told Captain Savage some additional facts. In
particular, Petitioner told Captain Savage that Austin had
fallen down three stairs and that Petitioner had notice blood
on his mouth and a mark on his face. Petitioner further told
Captain Savage that Austin had told him to “fuck
off” and that Petitioner had spanked the child in
response. Additionally, Petitioner reported that Austin had
fallen on his rear end while in the bath tub.
Savage left the room and Detective McCarthy reentered.
Detectives Graham and McCarthy informed Petitioner that they
did not believe his story and that they thought Petitioner
had hurt Austin out of frustration. Petitioner initially
denied having hurt Austin, but then admitted that he had.
Petitioner indicated that it was too difficult for him to say
aloud what had happened, and the police gave him a pen and
pad to write on. Petitioner wrote a statement, which he
signed at 2:08 a.m., setting forth a different version of
events. According to this statement, Ashlee had left for work
earlier than normal, and Austin was acting rambunctious and
had ripped his bed apart. Petitioner spanked Austin, but he
continued to act out. Petitioner then grabbed Austin by the
neck and stomach and carried him to the bedroom. Austin was
kicking and screaming, and Petitioner threw him onto the bed
and smacked him with the back of his fingers. Petitioner then
gave Austin juice and put him down for a nap. After Austin
awoke from his nap, Petitioner heard two bangs from the stair
area and heard Austin scream. He asked Austin if he was hurt
and Austin said yes. Petitioner changed Austin's diaper
and observed that he seemed fine. Petitioner fed Austin, at
which time Austin told him to “fuck off.”
Petitioner smacked Austin on his buttocks. At approximately
8:15 p.m., Petitioner tossed Austin onto the bed. Shortly
thereafter, Petitioner heard a noise - Austin had fallen down
the stairs and was bleeding from the tongue. Petitioner shook
Austin. Subsequently, when Austin became unresponsive,
Petitioner called 911 while his mother called Ashlee.
police told Petitioner that they did not believe his written
statement and that an autopsy of Austin would be performed.
Petitioner agreed to a formal interview, and the detectives
confirmed with him that he still understood his
Miranda warnings. In response to questioning by
Detectives Graham and McCarthy, Petitioner verbally described
shaking, slapping, slamming, and punching Austin. A typed
statement based on Petitioner's responses was prepared.
According to the typed statement, after Ashlee left for work,
Austin was rambunctious, kicking and screaming as his diaper
was changed. Petitioner grabbed Austin by the neck and held
down his arms and legs. Austin napped until about 5:00 p.m.,
and then he and Petitioner ate together. Austin spit food at
Petitioner and told him to “fuck off, ” and
Petitioner smacked the child in the face. Petitioner slammed
Austin's head into the floor while changing his diaper
and spanked him after giving him his bath. Austin was being
loud, and so Petitioner placed a pillow over his head (to
avoid waking Kristopher) and punched him three times.
Petitioner also indicated that Austin had fallen while they
were walking down the hallway. Petitioner shook Austin to
keep him awake until bedtime. After putting Austin to bed,
Petitioner checked on him and he seemed fine. Petitioner
returned five minutes later and Austin was breathing funny,
his eyes were half open, there was more blood on his lip, and
he was sweaty. Austin was not responsive. Petitioner alerted
his mother, who was downstairs, and removed Austin's
clothes. Petitioner then called 911. Petitioner indicated
that he had hurt Austin because he was frustrated and that he
had not meant to do it. Petitioner was arrested after making
this final statement.
Indictment No. 00499-2013, returned on April 19, 2013,
Petitioner was charged with murder in the second degree in
connection with Austin's death.
to trial, Petitioner moved, among other items, to suppress
the use of his statements to the police on the basis that
they were involuntary. The trial court held a hearing
pursuant to People v. Huntley, 15 N.Y.2d 72 (1965)
on July 24, 2013. On August 13, 2013, the trial court denied
Petitioner's motion to suppress in its entirety.
Petitioner's Trial, Conviction, and Sentencing
trial commenced on December 2, 2013 and continued through
December 9, 2013. During jury selection, the prosecution
exercised peremptory challenges as to two African American
women -Eula Hooker (“Ms. Hooker”), juror number
four, and Matika Henry (“Ms. Henry”), juror
number 14. Trial counsel raised an objection pursuant to
Batson v. Kentucky, 476 U.S. 79 (1986),
requesting that the prosecution articulate objective,
race-neutral reasons for the exclusions. Prior to questioning
the prosecution, the trial court observed with respect to Ms.
Hooker that she worked with a “human rights”
organization and that, in the Court's view, that was a
sufficient reason to use a peremptory challenge. The
prosecution then confirmed that Ms. Hooker had indeed been
challenged because she was a member of both a religious
organization and a human rights organization, which the
prosecution believed would make her overly sympathetic to
Petitioner. With respect to Ms. Henry, the prosecution stated
that she was a young, single woman, and that the prosecution
was looking for older jurors with more life experience. The
trial court determined that the prosecution's reasons
were not pretextual and denied the Batson challenge.
Pisa, Hoelscher, and Bouton and Detective Graham testified at
trial to the facts uncovered during their investigation,
which are set forth above. Forensic pathologist Tara Mahar
(“Dr. Mahar”) of the Erie County Medical
Examiner's Office also testified. Dr. Mahar, who is board
certified in anatomic, clinical, and forensic pathology,
performed an autopsy on Austin on March 20, 2013. Dr. Mahar
testified that Austin had suffered from blunt force and blunt
impact injuries to his head, neck, torso, and extremities.
Austin had a bruise on the front of his forehead, as well as
a pink abrasion and a pink contusion near his right eye.
There was an abrasion on the right side of his nose, and
contusions (both pink and brown) on his right cheek.
Austin's jawline had a pink contusion and the right side
of his chin had a dried red abrasion and an adjacent
purple-brown contusion. There was a red abrasion near
Austin's left ear, and his left ear itself had
contusions, an abrasion, and several burst blood vessels. Dr.
Mahar observed multiple abrasions near Austin's left eye.
She testified that the most “striking external
injury” she observed was a purple-blue contusion
covering the entirety of Austin's left cheek and
extending onto his neck. Austin's lower lip had an
abrasion and there was a laceration on the tip of his tongue.
Mahar observed approximately 10 blunt impact injuries to
Austin's neck area, including abrasions and contusions.
There were four contusions of the scalp. Upon performing an
internal examination, Dr. Mahar noted two areas of bleeding
on the brain, hemorrhage around the perioptic nerve, and
multiple retinal hemorrhages. Dr. Mahar testified that most
common cause of retinal hemorrhages is blunt force head
Austin's torso, Dr. Mahar again observed abrasions and
contusions, predominately on the upper portion. There was an
abrasion of the midback and contusion of the buttocks. Dr.
Mahar observed faint contusions on Austin's extremities.
Mahar testified that Austin's injuries were incompatible
with a fall down the stairs. She explained that on
individuals who have fallen down the stairs, she would expect
to see blunt impact injuries to the extremities, but that
Austin did not have any such injuries. She further explained
that a fall down the stairs would not cause the type and
extent of head and neck injuries that Austin suffered. With
respect to the injuries to Austin's buttocks, Dr. Mahar
indicated they were consistent with numerous strikes. Dr.
Mahar testified that Austin's head and neck injuries were
consistent with having been struck numerous times in the
face, head, and neck, having been shaken, and having had his
head pushed or slammed to the ground. Dr. Mahar also
testified that the injuries were consistent with having been
thrown on a bed and having had someone put a pillow over his
head and punch it. The cause of Austin's death was blunt
impact injuries of the head, resulting in diffuse axonal
injury. Dr. Mahar told the jury that her findings were
inconsistent with accidental trauma.
also testified at Petitioner's trial. Ashlee told the
jury that in early 2013, she, Austin, and Kristopher had been
living with her father and step-mother, but that she was
kicked out of the house when her father and step-mother
discovered an unused condom in her bed. Regarding her
relationship with Petitioner, Ashlee told the jury that she
had known him for three to four years, during which time they
had dated on and off and otherwise been friends. Ashlee
testified that she and Petitioner had sexual intercourse on
one occasion around the time she became pregnant with
Kristopher, and that she subsequently stopped having sexual
intercourse with him both because she was uncomfortable with
the age difference and because Petitioner went to rehab.
Ashlee explained that she and Petitioner had believed
Petitioner might be Kristopher's father, but that
subsequent DNA testing had revealed he was not.
testified that after she was kicked out of her father's
house, Petitioner asked his mother if Ashlee and the children
could stay with them. Ashlee and the children moved in with
Petitioner and his mother in approximately February 2013.
Ashlee was working at a nearby Pizza Hut, and Petitioner
would generally watch Kristopher while she worked, while
Austin would stay with either Ashlee's aunt, her father
and stepmother, or his biological father. However, Ashlee
twice asked Petitioner to watch both children while she went
March 18, 2013, the day before Austin's death, Ashlee and
Petitioner had an argument. Ashlee testified that she had
jokingly asked Petitioner if he was sending text messages to
another girl and that he had not taken it as a joke. The
argument escalated and resulted in Petitioner throwing Ashlee
out of the bedroom and locking the door, with Kristopher
still inside. Ashlee began banging on the door and telling
Petitioner to let her in or she would call the police.
Petitioner opened the door and told Ashlee that if she called
the police, he would report her for statutory rape. Ashlee
entered the room to check on Kristopher, and she and
Petitioner began to fight again. Ashlee hit Petitioner with a
pillow, and he responded by grabbing the pillow out of her
hands and throwing her across the bed into Kristopher's
swing and car seat. Petitioner walked to where Ashlee was
laying on the ground and screamed at her to get out. He then
picked her up off the ground and threw her to the side,
before leaving the room with a pillow, a blanket, and his
night and into the next morning, Ashlee and Petitioner sent
each other a number of text messages about the status of
their relationship. They spoke the next morning while
Petitioner was getting ready for school, and he told Ashlee
that he wanted her out by the end of the week. Ashlee asked
him for a little more time, as she was waiting to receive her
income tax refund.
cared for Austin and Kristopher while Petitioner was at
school on March 19, 2013. After school, she and Petitioner
continued to send text messages. Ashlee told Petitioner that
she was going to call off work, but Petitioner told her not
to do so. Ashlee went to work that day at approximately 4:20,
leaving the children in Petitioner's care. Austin did not
have any injuries when Ashlee left him.
at work, Ashlee received a text message from Petitioner
stating that Austin had fallen down the stairs. Ashlee asked
if the child was okay and Petitioner indicated that he was.
Later, Ashlee sent Petitioner a text message how things were
going, and Petitioner told her that Austin had told him to
fuck off, so Petitioner had “smacked his ass
good.” At approximately 8:20 that evening, while still
at work, Ashlee received a call from Petitioner's mother
telling her she needed to come home right away and that an
ambulance was on the way for Austin.
aunt gave her a ride home from work. Ashlee witnessed Austin
being placed into the ambulance, but the EMTs would not allow
her to ride with him to the hospital. The police officers
asked Ashlee about the text messages she had received from
Petitioner and she gave them her phone and consented to them
performing a search of it. She then packed up
Kristopher's things and went to the hospital, where she
learned Austin had died.
testified in his own defense at trial. He reported having
been to rehab at the age of 15 by order of a family court
judge. Petitioner also indicated that his pediatrician had
prescribed him a medication called Intuniv for attention
deficit hyperactivity disorder (“ADHD”) and anger
problems, but that he had chosen to stop taking it in
stated that he and Ashlee had an on and off relationship and
confirmed that in the time period before he went to rehab,
they had sexual intercourse on one occasion. He learned she
was pregnant and believed the child might be his. However,
DNA testing results received after Petitioner's arrest
indicated that Kristopher was not his child.
respect to the argument with Ashlee on March 18, 2013,
Petitioner described it as a “punch/shove and back and
forth.” He told the jury that he felt he and Ashlee
should not be living together because of his youth and
because he didn't like subjecting the children to their
arguments. He also acknowledged having told a neighbor and
acquaintance shortly after the argument that Austin was a
“dick” because Ashlee gave him whatever he
respect to the events leading to Austin's death,
Petitioner testified that on the evening of March 19, 2013,
Austin was sleeping when Ashlee left for work. Upon waking,
Austin was walking toward Petitioner when he fell down the
steps. Petitioner heard a noise and walked to the steps,
where he found Austin laying on the ground with a mark on his
cheek and blood in his mouth. Austin cried a little, but then
seemed fine. Petitioner cleaned the blood from his mouth and
then texted Ashlee to tell her about the incident.
then gave Austin a cup of either juice or milk and put
cartoons on the television for Austin to watch. Petitioner
was sending text messages during this time, including text
messages in which he attempted to sell synthetic marijuana
and text messages in which he attempted to arrange a sexual
tryst with a girl other than Ashlee.
dinner time, Petitioner went to the kitchen to warm food for
Austin, and then fed it to him on the bed upstairs. Austin
spit the food out, perhaps because of his mouth injuries.
Austin told Petitioner to “fuck off” while
eating, so Petitioner slapped him in the face with the back
of his hand, after which Austin continued to eat.
point in the evening, Petitioner needed to change
Austin's diaper. Austin did not want his diaper changed
and was trying to get up. Austin was on the wooden floor at
this time, and Petitioner testified that he
“slammed” Austin down to get the diaper on him,
and that Austin hit his head.
testified that at another point in the evening, he became
angry at Austin for reasons he could not recall. He placed a
pillow over Austin's head and punched him multiple times
in the head through the pillow.
told the jury that he had not meant to kill Austin and that
he did not believe he had the strength to kill anyone. He
stated that there was “some sort of intent in it
because [he] did it, ” but that he did not think that
Austin would end up dead. Petitioner stated that he had
limited experience with children and that he had been angry
and wanted to discipline Austin but did not know how. He also
testified that he had placed the pillow over Austin's
head thinking that it would provide some protection from his
respect to his interactions with the police, Petitioner
testified that Detective Graham provided him with the
Miranda warnings and that, as to each warning,
Petitioner stated that understood them. Petitioner claimed,
however, that he had in fact not understood the warnings and
that he was merely trying to be cooperative. Petitioner
confirmed that at the end of his questioning, he indicated
that the police had treated him “fine” and
“better than most detectives would have given the
cross-examination, Petitioner acknowledged having told his
mother in a phone call on July 29, 2013 that he was “a
16-year-old blond” and that “probably all [he
has] to do is cry in front of that jury and they're going
to feel sorry for [him.]” Petitioner testified he had
made this statement of anger.
December 9, 2013, upon consideration of all the evidence, the
jury found Petitioner guilty of murder in the second degree.
On January 10, 2014, the trial court sentenced Petitioner
indeterminate term of incarceration of 25 years to life.
took a counseled direct appeal of his convictions, arguing
that: (1) the evidence was legally insufficient to support a
guilty verdict as to intentional murder; (2) the
prosecution's use of peremptory challenges was
discriminatory; (3) trial counsel provided ineffective
assistance; (4) he did not properly waive his
Miranda rights and his statements to the police were
involuntary; (5) the trial court erred in allowing in
testimony regarding the argument between Ashlee and
Petitioner on March 18, 2013; and(6) Petitioner's
sentence was unduly harsh, excessive, and severe.
Appellate Division, Fourth Department (the “Appellate
Division”) entered a decision on February 11, 2016
rejecting the first five of Petitioner's arguments. The
Appellate Division found that: (1) the evidence of record,
including Dr. Mahar's testimony and Petitioner's
actions on the night at issue, was legally sufficient to
sustain a finding of intentionality; (2) Petitioner failed to
preserve for review his objection the trial court's
procedure for determining the Batson challenge; (3)
as to the parts of the Batson challenge preserved
for review, the trial court properly found that the
prosecution's explanations were race-neutral and not
pretextual; (4) trial counsel did not provide ineffective
assistance; (5) the police who questioned Petitioner were
under no obligation to provide his Mira ...