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Schumaker v. Kirkpatrick

United States District Court, W.D. New York

June 28, 2018




         I. Introduction

         Pro 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 to life.

         In the 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.

         II. Factual Background and Procedural History

         A. The Underlying Crime, Initial Investigation, and Indictment

         At the 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 Petitioner's care.

         At 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.

         Erie 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.

         Ashlee 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 texted Ashlee.

         Deputy 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.

         Speaking 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.

         Detective 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.

         Captain 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.

         The 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.

         Under Indictment No. 00499-2013, returned on April 19, 2013, Petitioner was charged with murder in the second degree in connection with Austin's death.

         B. Pre-trial Proceedings

         Prior 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.

         C. Petitioner's Trial, Conviction, and Sentencing

         Petitioner's 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.

         Deputies 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.

         Dr. 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 trauma.

         On 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.

         Dr. 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.

         Ashlee 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.

         Ashlee 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 to work.

         On 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 dog.

         That 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.

         Ashlee 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.

         While 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.

         Ashlee's 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.

         Petitioner 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 February 2013.

         Petitioner 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.

         With 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 wanted.

         With 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.

         Petitioner 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.

         At 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.

         At some 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.

         Petitioner 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.

         Petitioner 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 blows.

         With 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 situation.”

         On 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.

         On 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.

         D. Direct Appeal

         Petitioner 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.

         The 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 ...

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