Schlesinger v. United States
2012 U.S. Dist. LEXIS 15754
| E.D.N.Y | 2012Background
- Petitioner Nat Schlesinger was convicted on 28 counts including arson and related frauds (2006).
- Fire at the factory on December 31, 1998 allegedly incendiary; experts testified to arson theories.
- Fourth §2255 petition filed October 5, 2009 alleging ineffective assistance of trial counsel.
- Petitioner claims counsel failed to investigate non-arson causes, challenge testimony based on negative corpus, and cross-examine or obtain defense experts.
- NFPA 921 guidance and distinction between process of elimination and negative corpus were discussed.
- Court denied the petition, holding no prejudice and upholding conviction and sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prejudice from failure to investigate non-arson causes | Schlesinger shows more information would have changed outcome | No reasonable probability of different result given overwhelming circumstantial evidence | Denied; no reasonable probability of different outcome |
| Daubert challenge to arson testimony | Counsel should have challenged reliability of negative corpus | Admissibility not undermined; Daubert failure would not have altered result | Denied; no prejudice from lack of Daubert challenge |
| Failure to consult/call arson expert | Expert would refute negative corpus and strengthen non-arson defense | Cross-examination already addressed weaknesses; no prejudice given evidence | Denied; no prejudice; circumstantial evidence strong enough |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (ineffective assistance standard; prejudice and performance prongs)
- Bierenbaum v. Graham, 607 F.3d 36 (2d Cir. 2010) (Strickland standard applied in Second Circuit)
- Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001) (prejudice threshold in habeas review)
- Gersten v. Senkowski, 426 F.3d 588 (2d Cir. 2005) (cumulative prejudice considerations)
- Aguirre v. United States, 912 F.2d 555 (2d Cir. 1990) (summary of adversarial reliability standards)
- Hebshie, 754 F.Supp.2d 89 (D. Mass. 2010) ( Daubert/Rule 702 reliability in arson expert)
- Dugas v. Coplan, 428 F.3d 317 (1st Cir. 2005) (non-arson defense and prejudice in arson case)
- Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007) (prejudice from lack of arson expert where accelerants evidence)
- Thompson v. United States, 436 F.App’x 669 (7th Cir. 2011) (knottier prejudice analysis when expert would find undetermined cause)
- Narrod v. Napoli, 763 F.Supp.2d 359 (W.D.N.Y. 2011) (admission of arson expert testimony not reversible error given overwhelming evidence)