Opinion
98 CR 896 (TPG), 00 CV 6153 (TPG).
April 7, 2006
OPINION
The court has before it an amended habeas corpus petition filed by petitioner Anthony Boyd on July 27, 2003. The petition is denied. Petitioner's request for a certificate of appealability is also denied.
PROCEDURAL BACKGROUND
In a four day trial ending on November 19, 1998, petitioner was convicted on three counts of armed bank robbery in violation of 18 U.S.C. § 2113 (a), (d), and one count of robbery in violation of the Hobbs Act, 18 U.S.C. § 1951, and was sentenced to 135 months incarceration. Petitioner's direct appeal on numerous grounds was rejected by the Second Circuit in a summary order dated February 1, 2000.
Petitioner then filed a § 2255 habeas petition in this court. On August 2, 2001, the court issued an order denying the petition, but granted a certificate of appealability limited to the question of whether petitioner was denied effective assistance of counsel. On July 27, 2003, while petitioner's appeal from the court's August 2, 2001 order was pending, petitioner filed a motion to amend his original § 2255 petition. The court granted the motion to amend on September 2, 2004, and, on August 10, 2005, the court ordered the Government to answer the arguments presented by the amended petition. The answering memorandum was filed on January 26, 2006.
DISCUSSION
The petition contains three arguments, each of which is without merit. Petitioner first claims that the government violatedBrady v. Maryland, 373 U.S. 83 (1963), by withholding fingerprint evidence found at the scene of one or more of the robberies. Petitioner has submitted an FBI report, dated April 5, 1999, which states that certain latent fingerprints recovered from the crime scene were not those of petitioner.
As an initial matter, no violation of Brady has occurred here because the FBI report that petitioner claims was withheld was not created until April 5, 1999, more than four months after petitioner's trial ended with his conviction.
Furthermore, a violation of Brady occurs only where the Government suppresses evidence "that would deprive the defendant of a fair trial." Id. at 135. Under Brady, a defendant is deprived of a fair trial only where there is a reasonable probability that the Government's suppression affected the outcome of the case, or where the suppressed evidence could reasonably be taken to put the whole case in a different light as to undermine confidence in the verdict. Id.
The evidence petitioner has submitted is neither exculpatory nor did its absence deprive the petitioner of a fair trial. The fact that fingerprints belonging to someone other than petitioner were found at the bank is not exculpatory in light of the public, heavily trafficked nature of such venue. In addition, the record in this case showed that the perpetrator of these bank robberies wore gloves, and therefore would not be expected to leave fingerprints.
Furthermore, such overwhelming proof of petitioner's guilt was presented at trial that the absence of the (at best) marginally probative fingerprint evidence cannot be said to have deprived petitioner of a fair trial. The Government's proof at trial included six eyewitnesses each of whom saw the robber without his mask and positively identified petitioner as the perpetrator. Also entered into evidence at trial were bank surveillance photos of a partially masked bank robber matching petitioner's physical appearance; the gun, gloves, mask, and clothing recovered from petitioner upon his arrest; and casino records detailing petitioner's substantial cash expenditures immediately following each of the four charged robberies. In the context of such overwhelming evidence, the existence of the fingerprints referred to by petitioner does not raise an issue under Brady.
The petition next asserts that FBI Special Agent Bertram Fairries offered "testimony known to be false at trial" because he testified that the bank robber always wore gloves while other witnesses did not mention seeing the perpetrator wearing gloves.
In addition, attached to the petition are two somewhat similar documents, each of which appears to describe a bank robbery identified as Pattern D-98. Petitioner asserts that one of the documents must have been altered because it contains a redaction as well as a box labeled "Gloves/hand covering worn" checked off, whereas the other document contains no such box.
Petitioner failed to assert these claims on direct appeal and is therefore barred from raising them at this time. DeJesus v. United States, 161 F.3d 99, 102 (2d Cir. 1998).
In any event, these claims are wholly without merit. Testimony by one witness is not "false" merely because it is not confirmed by the testimony of others. Furthermore, the documents petitioner has submitted contain different handwriting, and one has a date stamp while the other does not. Aside from the small and commonplace redaction, there is no evidence that either document had been altered.
Finally, the court rejects petitioner's claim that his attorney's failure to discover the fingerprint evidence or raise it at trial denied petitioner effective assistance of counsel. As discussed above, the purported evidence is futile when viewed in light of the overwhelming evidence of petitioner's guilt presented at trial.
Accordingly, the amended petition for a writ of habeas corpus is denied. Additionally, because petitioner has not made a substantial showing of the denial of a constitutional right, his request for a certificate of appealability is denied. See 28 U.S.C. § 2253(c)(1).
CONCLUSION
The amended petition for a writ of habeas corpus is denied. Petitioners request for a certificate of appealability is denied.
SO ORDERED.