Allen v. Graham

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Docket Number16-cv-1285(KAM)(LB)
Decision Date04 August 2020

CARL ALLEN, Petitioner,



August 4, 2020


KIYO A. MATSUMOTO, United States District Judge:

On March 9, 2016, pro se petitioner Carl Allen ("petitioner") filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Eastern District of New York, challenging his November 2, 2012 conviction in the Supreme Court, Richmond County, on one count of murder in the second degree. (See ECF No. 1, Petition for Writ of Habeas Corpus ("Pet.").) For the reasons set forth below, the court finds petitioner's claims are without merit, and denies and dismisses his petition.


I. 1999 Murder of Ms. Ortiz

Petitioner's November 2, 2012 conviction stemmed from the murder of Noemi Ortiz ("Ms. Ortiz"). (Pet. at 1.) On September 4, 1999, Ms. Ortiz's boyfriend, Eric Donaldson ("Donaldson"), found Ms. Ortiz dead in her apartment, at 73 Wave

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Street, Staten Island, New York, lying on the floor between her living room and bedroom. (ECF No. 10-5, People v. Allen, Indictment No. 390/2010 (Richmond County Crim. Ct.), Trial Transcript ("Trial Tr."), at 83:8,14-17,20-22.)1 Ortiz had suffered several blunt force injuries to her head, neck, torso, and extremities, as well as numerous stab wounds to her neck and the right side of her head. (Id. at 600:10-12.) Large amounts of blood were found throughout the bedroom, on the walls, blinds, bedding, sheets, comforter, and doorknob; in addition, there were teeth on the floor and bloody palm prints on the walls. (Id. at 301:8-25.) The officers who arrived at the scene also discovered a blood-covered, green, plastic-coated dumbbell (Id. at 290:22-25), which, during the September 5, 1999 autopsy, the medical examiner determined to be the weapon used to inflict blunt force trauma to Ms. Ortiz. (Id. at 604:21-24.) During the autopsy, the medical examiner also collected rape kit evidence from Ms. Ortiz's body, and the swabs tested positive

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for semen. (See ECF No. 6-10, State Court Record, Attachments to Opposition to Motion to Dismiss ("Attachments"), at 11; Trial Tr. at 668-670.)2 The cause of death was found to be homicide. (Attachments at 49, 57; Trial Tr. at 610:11.)

Following the autopsy, an officer from the Crime Scene Unit returned to Ms. Ortiz's apartment and recovered the dumbbell. (Id. at 306:19-25.) Additionally, the Crime Scene Unit recovered the aforementioned bloody palm prints by cutting the sheetrock of the prints out of the walls as well as the blood-covered doorknob. (Id. at 308: 17-23.)

Around the same time, a NYPD criminalist tested several items found in Ms. Ortiz's apartment for readable prints: a manila envelope, a plastic rotisserie chicken container, the doorknob, the dumbbell, a mop, a bleach container, a light switch, and the two pieces of sheetrock. (Trial Tr. at 459:22-25; 460:11-12; 461:5-6, 12-19, 20-21; 462:19-25; 464:5-7, 21-23; 465:1-3, 6-9; 466-467.) The criminalist visually examined each item, looking for ridge details in the prints that could be compared and identified. (Id. at 24-27.) She photographed any visible prints she determined to be "potentially of value" and sent them to NYPD property clerk's office for a secondary evaluation. (Id.)

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In addition, Detective Michael McLoughlin assisted with the ongoing investigation by taking palm prints of more than 30 suspected individuals. (Trial Tr. at 272:17-22; 274:9-18.) Detective McLoughlin testified that on September 11, 1999, he and another detective met with and questioned petitioner regarding Ms. Ortiz's murder and whether he owed Ms. Ortiz money; petitioner denied both having a romantic relationship with Ms. Ortiz and owing her money. (Id. at 29-31; see also Attachments at 53-54.) The detectives then asked petitioner to accompany them to the precinct so they could obtain a set of petitioner's palm prints from him. (Attachments at 53.) Petitioner stated that he was preparing dinner for his children and would need to find a babysitter, but he would be happy to meet the detectives at the precinct in an hour. (Id.) Petitioner failed to arrive at the precinct at the designated time. (Id.) The detectives called petitioner's residence, and an unidentified female informed them that petitioner had left the residence and would not be going to the precinct. (Id.)

Detective McLoughlin made numerous attempts to reach petitioner through his beeper and, after approximately two hours, the detectives received a call from petitioner, who stated that he would not be coming to the precinct that evening. (Id. at 54). Petitioner informed the detectives that he retained legal counsel, and would be coming in with said counsel

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on Monday, September 13, 1999, to be interviewed and fingerprinted. (Id.) Petitioner did not show up to the precinct as he had indicated. (See ECF No. 6-9, Government's Opposition to Motion to Dismiss, ("Opp. to Mot. to Dismiss"), at 13; see also ECF No. 6-8, Petitioner's Motion to Dismiss ("Pet. Speedy Trial Mot."), at 17.)

The investigation continued, but the police could not find petitioner after their September 11, 1999 correspondence and interactions. (See Attachments at 54; Opp. to Mot. to Dismiss at 13.) Between October 1999 and November 2001, the police ran US postal checks, DMV checks, and arrest reports in an effort to locate petitioner, which were unsuccessful. (Id.; see also Attachments at 21-27.)

II. Petitioner's 2003 Arrest and Release

On April 25, 2003, petitioner was arrested on unrelated rape charges. (ECF No. 5, People's Affidavit in Opposition to Writ of Habeas Corpus ("Aff. in Opp.") ¶ 6; Pet. Speedy Trial Mot. at 17.) In connection with that arrest, petitioner's palm prints were taken and submitted for comparison with an unidentified bloody palm print from the Ortiz murder scene. (See Opp. to Mot. to Dismiss at 14.) Later that day, the relevant police squad was informed that petitioner's palm

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prints matched the bloody palm print from the Ortiz murder scene. (See id.; see also Attachments at 49, 55.)

Petitioner was arrested for Ms. Ortiz's murder on the same day. (See Opp. to Mot. to Dismiss at 14.) The detectives read petitioner his Miranda rights, which petitioner voluntarily waived, and petitioner was then interviewed by the detectives. (See Attachments at 55-56.) Petitioner admitted to knowing Ms. Ortiz, but he refused to provide any other information to the detectives. (See id. at 53-54.) Respondent asserts that, after petitioner's arrest, the assigned assistant district attorney ("ADA") reviewed the casefile and saw that the print on the dumbbell was still unidentified. (See Opp. to Mot. to Dismiss at 15.) As such, the ADA decided not to proceed with the murder charges against petitioner and, instead, to develop more evidence or identify the dumbbell print. (Id.)

On May 1, 2003, petitioner was released on the homicide case docket pending in Richmond County Criminal Court; however, petitioner remained incarcerated for the unrelated later rape charge. (Id.) Later in May 2003, the murder case was waived to the Grand Jury, and there were no court appearances until 2010. (See id. at 15-16; see also Pet. Speedy Trial Mot. at 17.) On August 14, 2003, petitioner pled guilty in the rape case, and, on September 9, 2003, petitioner was

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sentenced to a one-year term of imprisonment. (See Opp. to Mot. to Dismiss at 16.)

III. Interim Investigation

On May 8, 2003, respondent obtained an order for petitioner's DNA to be tested and compared to evidence collected from Ms. Ortiz's rape kit. (Opp. to Mot. to Dismiss at 17.) On July 15, 2003, a DNA report revealed a match between petitioner's sample and the semen sample obtained from Ms. Ortiz's autopsy. (See Attachments at 5-9.) In late 2004, an ADA from the Richmond County DA's office requested a crime reconstruction in the case from the Forensic Analysis and Reconstruction Unit ("FARU"). (Id. at 46.) The unit reviewed various NYPD reports, DNA reports, autopsy reports, and photographs of the crime scene. (Id.) On January 3, 2005, FARU issued a report, which noted that the palm print on the wall was consistent with petitioner's palm print, but it could not be determined if the particular print was made before or after the blood had spattered on the wall. (Id.)

In 2006, a new ADA was assigned to the case. (Opp. to Mot. to Dismiss at 19-20.) The ADA contacted the NYPD Cold Case Squad for assistance with the investigation and met with a detective from that squad on May 4, 2007 to discuss the case. (Id. at 20-21.) On May 8 and June 30, 2007, the detective made requests to compare the unidentified dumbbell print with the

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prints of the mother of petitioner's children and the petitioner's girlfriend, respectively. (See id. at 21; see also Attachments at 28-29.)

In August 2007, the ADA worked with two detectives of the NYPD Major Case Print Lab regarding the Ortiz case. (Opp. to Mot. to Dismiss at 21.) One of the detectives determined the dumbbell print to be of "no value" and informed the ADA that although an NYPD print report had initially listed the dumbbell print as being "of value," said designation was only a criminalist's preliminary determination and could be reversed. (See id.; see also Trial Tr. at 538:7-8, 20-23; 539:11-21; 540:16-24.)

The cold case detective made unsuccessful efforts throughout September and October 2007 to locate petitioner, including visiting petitioner's registered address and his place of employment. (See Attachments 30-42.) On October 3, 2007, the ADA and cold case detective met with the print lab detective to discuss his finding of "no value" for the dumbbell print and the print's unreadability. (Opp. to Mot. to Dismiss at 24-25.) Of the prints initially determined to be "potentially of value" by the 1999 criminalist, the print lab detective found...

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