Reddick v. New York

• Court: U.S. District Court — Eastern District of New York
• Writing for the Court: ANN M. DONNELLY, United States District Judge.
• Decision Date: 28 September 2018
• Docket Number: 14-CV-2809 (AMD)
• Citation: Reddick v. New York, 14-CV-2809 (AMD) (E.D. N.Y. Sep 28, 2018)
• Parties: QIYDAAR REDDICK, Petitioner, v. STATE OF NEW YORK, Respondent.

QIYDAAR REDDICK, Petitioner, v. STATE OF NEW YORK, Respondent.

14-CV-2809 (AMD)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 28, 2018

MEMORANDUM DECISION AND ORDER

ANN M. DONNELLY, United States District Judge.

The pro se petitioner, currently incarcerated at Five Points Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petitioner was convicted in Richmond County Supreme Court of Rape in the First Degree, Aggravated Criminal Contempt, and Burglary in the Second Degree, and was sentenced to concurrent prison terms totaling twenty-three years, and twenty-five years' post-release supervision. The petitioner claims that his attorneys were ineffective, and that the DNA expert's testimony was perjured and violated the Sixth Amendment. For the following reasons, the petition is denied.

BACKGROUND¹

I. Overview

The petitioner was convicted of raping his ex-girlfriend, Michelle Niesz, in the early morning hours of May 18, 2009. The petitioner, armed with a knife, kicked in the door to Ms. Niesz's third-floor apartment, grabbed Ms. Niesz, and dragged her outside. He took Ms. Niesz to her neighbor's cellar, and where he raped her at knifepoint. Ms. Niesz was able to escape when the police arrived; the petitioner fled through the backyard.

The petitioner was charged with Rape in the First Degree, two counts of Burglary in the Second Degree, Aggravated Criminal Contempt, and Criminal Contempt in the First Degree. The petitioner went to trial before the Honorable Robert Collini and a jury in September 2010. The petitioner was convicted of rape, second-degree burglary, and aggravated criminal contempt, and acquitted of one count of second-degree burglary and first-degree criminal contempt.

II. Pre-Trial Proceedings

When the petitioner was arraigned on May 29, 2009, he filed notice of his intent to testify before the grand jury. (ECF No. 13-17 at 1.)² On June 15, 2009, Richard Kopacz, who was the petitioner's lawyer at the time, informed the court that the petitioner no longer wished to testify before the grand jury. (Id.) On June 18, 2009, a grand jury returned an indictment charging the petitioner with Rape in the First Degree, Burglary in the Second Degree, Aggravated Criminal Contempt, and Criminal Contempt in the First Degree. (Id.; ECF No. 13-16 at 4.) On June 24, 2009, the petitioner, represented by new counsel Matthew Zuntag, was arraigned on the indictment. (ECF No. 13-17 at 1.)

On January 11, 2010, the petitioner, through counsel, moved to dismiss the indictment, claiming that the petitioner's "prior counsel failed to adequately advise [him] of his right to testify in the Grand Jury." (ECF No. 13-16 at 1-2, 8-9.) The petitioner also claimed that his previous attorney had a conflict of interest because he simultaneously represented both the petitioner and the victim, Ms. Niesz. (Id. at 8-10.)

On February 4, 2010, Judge Leonard Rienzi denied the petitioner's motion because the motion was untimely and because his prior counsel's "strategic decision" to withdraw the grand jury notice was not a basis for dismissal. (ECF No. 13-17 at 1-2.)

III. Trial

The trial commenced on September 16, 2010 before Judge Collini and a jury.³ (ECF No. 13-22.)

A. The Prosecution's Case

The prosecution called ten witnesses, including the victim, Ms. Niesz, and the medical examiner who confirmed that the petitioner's DNA was in the underwear that Ms. Niesz was wearing the night of the attack. The prosecution presented evidence of Ms. Niesz's order of protection against the petitioner (ECF No. 13-22 at 438:2-15), as well as the testimony the police officer who encountered Ms. Niesz after the rape (id. at 442-57), and the nurse who treated her and prepared a rape kit (id. at 662-82).

1. Michelle Niesz

Ms. Niesz dated the petitioner from 2006 through October or November 2008 (id. at 489:2-3, 492:14-21); they had a baby together in 2007 (id. at 542:16-19). Ms. Niesz allowed the petitioner to stay in her apartment even after they broke up. (Id. at 492:22-24.) Counsel established on cross-examination that Ms. Niesz's son was in North Carolina with the petitioner's family (id. at 544:15-545:6), and that she believed that the petitioner and his family were keeping the child from her, which made her "very upset" (id. at 546:24-547:5).⁴

Sometime around Easter 2009, the petitioner broke into Ms. Niesz's apartment and threatened to kill her. (ECF No. 13-22 at 494:4-16.) The petitioner was arrested and charged with menacing, to which he pled guilty. (Id. at 494:20-23; ECF No. 13-20 at 3:3-13.) Ms. Niesz obtained an order of protection (ECF No. 13-22 at 494:7-9) that required the petitioner to "stay away from Michelle Niesz" and "her home," and to "refrain from . . . intimidation, threats or any other criminal offense against her" (id. at 439:18-25).

In the early morning hours of May 6, 2009, Ms. Niesz awoke to find the petitioner lying next to her. (Id. at 498:9-499:2.) He told her "to give him what he want[ed] or he was going to put [her] to sleep and take what he want[ed]." (Id. at 499:4-5.) The petitioner choked Ms. Niesz, causing her to vomit. (Id. at 499:15-17.) He took her to the bathroom so that she could clean up. (Id. at 499:20-23.) Ms. Niesz refused the petitioner's demand that she go back to the bedroom "to talk." (Id. at 499:23-25.) The petitioner left, and Ms. Niesz called the police, but left to take her daughter to school before they arrived. (Id. at 500:15-19.) She came home to find that the petitioner was back, and had kicked in her kitchen door. (Id. at 500:23-24, 502:3-4.) Ms. Niesz called the police, and the petitioner left. (Id. at 500:25-501:3.) The police arrived and took pictures of the apartment. (Id.)

On May 18, 2009 at around 3:00 a.m., the petitioner, armed with a knife, returned to the apartment and kicked down the door. (Id. at 503:23-25.)⁵ He grabbed Ms. Niesz, put the knife to her back, told her that they needed "to talk," and forced her down the stairs. (ECF No. 13-22 at 504:10-14.) Ms. Niesz pleaded with the petitioner to put his knife down, but he told her to be quiet, and at one point, cut her thumb. (Id. at 504:15-24, 510:17-20.)

The petitioner put the knife in his back pocket, threw Ms. Niesz over his shoulder, and carried her to the side of the house. (ECF No. 13-22 at 510:23-511:2.) She grabbed the knife and tried to throw it over the fence, but the petitioner was able to retrieve it. (Id. at 511:3-15.) Ms. Niesz's friend Mohammed came down the stairs, and told the petitioner to "leave [Ms. Niesz] alone" and that he did not "have to do this." (Id. at 511:23-25.) The petitioner ignored him and forced Ms. Niesz at knifepoint into a neighbor's cellar. (Id. at 512:6-24.) Once inside, the petitioner told Ms. Niesz that he would "take what [he] want[ed]" if she did not give it to him. (Id. at 513:3-7.) Ms. Niesz refused, and the petitioner pulled down her sweatpants, and raped her. (Id. at 513:8-15.) At one point, Ms. Niesz could hear that the police had arrived; she wrestled the knife from the petitioner's hand. (Id. at 513:21-514:10.) She threw the knife into the yard, and the petitioner escaped through the neighbor's backyard. (Id. at 514:6-10.) Ms. Niesz ran to the front of the house, and told an officer that the petitioner had raped her and was escaping through the backyard. (Id. at 514:12-15.) Ms. Niesz was taken to the hospital, and examined by medical professionals who prepared a rape kit, which included vaginal and oral swabs, her clothing, and debris from her feet. (Id. at 517:4-519:6.) The kit was sent to the medical examiner's office for testing. (See ECF No. 13-23 at 620:16-621:5.)

2. Kerry Annitto

Kerry Annitto, a forensic expert at the Office of Chief Medical Examiner (id. at 615:11-13, 617:16-17), testified that the Office examined the rape kit on May 20, 2009 (id. at 620:16-621:5). Testing revealed the presence of semen in Ms. Niesz's underwear.⁶ (ECF No. 13-23 at 622:20-24.) Ms. Annitto compared the petitioner's DNA with the DNA profile on Ms. Niesz's underwear and concluded that it was his semen. (ECF No. 13-23 at 627:22-628:10.) On cross- examination, Mr. Fonte established that Ms. Annitto could not determine how long the DNA found on Ms. Niesz's underwear had been there. (ECF No. 13-23 at 636:5-7.)

B. The Defense Case

The petitioner did not call any witnesses.

C. Verdict and Sentencing

On September 28, 2010, the jury found the petitioner guilty of Rape in the First Degree, Aggravated Criminal Contempt, and Burglary in the Second Degree, and acquitted him of Burglary in the Second Degree and Criminal Contempt. (ECF No. 13-24 at 812:10-20.)

On November 3, 2010, Judge Collini sentenced the petitioner as a predicate felon to concurrent sentences of twenty-three years for the rape, fifteen years for the burglary, and three-and-a-half to seven years for criminal contempt, with twenty-five years of post-release supervision. (ECF No. 13-25 at 19:7-19.)⁷

PROCEDURAL HISTORY

I. 330.30 Motion to Set Aside Verdict⁸

On October 23, 2010—after the verdict, but before sentencing—the petitioner filed a pro se C.P.L. § 330.30 motion, claiming that the court should not have admitted the knife recovered at the crime scene, and that Ms. Annitto's testimony violated the Sixth Amendment right to confrontation because it was "hearsay" and based on another lab analyst's notes. (ECF No. 13-1 at 1.) He also alleged that he was denied the right to be present at side bar conferences, and that his conviction was a result of "falsified legal documents." (Id.) Finally, the petitioner claimed that testimony about the April 2009 menacing conviction was unfairly prejudicial. (ECF No. 13-1 at 3.)

Judge Collini denied the petitioner's motion as "procedurally barred" and "without merit." (ECF No. 13-25 at 2:16-25.) The petitioner did not seek leave to appeal the denial of his motion.

II. 440.10 Motion to Vacate Judgment

On November 3, 2010, the petitioner filed a pro se...