Opinion
99-CV-350 (JG)
November 3, 2003
TIMOTHY BURNIE DIN, Great Meadow Correctional Facility, Comstock, New York, for Petitioner Pro Se
CHARLES J. HYNES, Rhea A. Grab, Brooklyn, New York, for Respondent
MEMORANDUM AND ORDER
Timothy Burnie petitions for a writ of habeas corpus, challenging his convictions in state court arising out of a shooting incident in Brooklyn on December 20, 1989, On October 31, 2003, I held oral argument, in which Burnie participated by telephone conference. After due consideration of the papers and the arguments made at the hearing, the petition is denied for the reasons set forth below.
BACKGROUND
On the evening of December 20, 1989, Burnie, together with co-defendants Chaney Jenkins and Dwayne Jones, shot at Quinn Britton and his younger brother, Idriss Britton, as they walked down Blake Avenue in Brooklyn, The victims had been on their way to a basketball game. Sixteen-year-old Idriss died from a gunshot wound to his back. Earlier that evening, Burnie had told the other co-defendants, as well as David Jenkins, that he wanted to murder someone, and he passed out two guns for that purpose. Jenkins, who was with Burnie and his co-defendants that night, testified to these facts at trial.
"Jenkins" will refer to David Jenkins (as opposed to Chaney Jenkins) unless otherwise specified.
On June 18, 1991, Burnie was convicted by a jury of murder in the second degree, attempted murder in the second degree, and criminal possession of a weapon in the second degree, He was sentenced to concurrent prison terms of from twenty-five years to life, twelve and one-half to twenty-five years, and seven and one-half to fifteen years, respectively.
Burnie appealed the judgment of conviction to the Appellate Division, Second Department. Appellate counsel filed a brief that raised the following claims: (1) the trial court erred in not charging the jury that Jenkins was an accomplice, and (2) Jenkins's testimony should have been suppressed as the fruit an illegal interrogation of Burnie. On April 3, 1995, the Appellate Division rejected these challenges and affirmed Burnie's conviction. People v. Burnie, 624 N.Y.S.2d 463 (App.Div. 1995). It held that the testimony of Jenkins, who was a co-defendant in a companion case, was sufficiently attenuated from the suppressed statements to be admissible at trial. Burnie. 624 N.Y.S.2d at 464, The other claim was rejected as both unpreserved for appellate review and lacking m merit. Id. On June 21, 1995, the New York Court of Appeals denied Burnie leave to appeal his conviction. People v. Burnie. 655 N.E.2d 710 (1995).
In his petition, Burnie contends that his appellate counsel also raised a sufficiency of the evidence claim. (Pet, at 3,) Appellate counsel's brief, however, only stated that "[w]ithout the compromised testimony of David Jenkins, the evidence in this case would have been insufficient as a matter of law to sustain a conviction." (Resp't Mem. Law Opp. Pet., Ex. B.) (quoting appellate brief).
On March 25, 1997, Burnie filed a pro se motion in the Supreme Court to vacate his judgment of conviction pursuant to section 440.10 of the New York Criminal Procedure Law ("CPL"). He claimed that he had been denied a fair trial because of prosecutorial misconduct in withholding Rosario and Brady material (the cooperation agreement and audio and videotaped statements of David Jenkins) and in allowing perjured testimony by a prosecution witness to go uncorrected. He also asserted that his counsel was ineffective for not pressing the trial court to order the prosecution to provide the defense with the actual cooperation agreement. On September 9, 1997, Burnie's motion to vacate his judgment of conviction was denied on the ground that it was procedurally barred and without merit. On December 15, 1997, the Appellate Division denied Burnie's application for leave to appeal.
On December 16, 1998, Burnie, represented by counsel, filed a petition for a writ of habeas corpus in this Court, in which he raised all of the claims he had raised in his direct appeal to the Appellate Division and in his previous motion to vacate. In addition, Burnie claimed, for the first time, that the hearing court improperly failed to suppress the photographic identification of Burnie made by Quinn Britton. He also asserted that the existence of newly discovered evidence in the form of an affidavit from Tony a Forehand (Jenkins's girlfriend), which stated that Jenkins was with her at the time of the murder, negated Jenkins's trial testimony inculpating Burnie.
On May 7, 1999, I dismissed Burnie's petition as untimely under § 2244(d)(J)(D). Burnie v. People. No, 99-CV-350, 1999 WL 342243 (E.D.N.Y. May 7, 1999), I noted that Burnie's conviction became final before the April 24, 199*5 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), thus entitling him to the one-year grace period set forth in Ross v. Artuz, 150 F.3d 97, 98, 103 (2d Cir. 1998). As Burnie did not file his petition until December 16, 1998 — more than one year after the expiration of the grace period — 1 found that his petition was out-of-time and thus dismissed it,
During the pendency of Burnie's petition before me, on March 4, 1999, Burnie filed a second pro se motion in the Supreme Court to vacate his judgment of conviction. This time, he alleged that newly discovered evidence from Forehand required the vacatur of his conviction. To determine the validity of this new claim, the Supreme Court held an evidentiary hearing on January 19, February 3, and February 8, 2000, at which both Forehand and Burnie testified. In an order dated February 14, 2000, the Supreme Court dented Burnie's motion to vacate as lacking merit, On May 23, 2000, the Appellate Division denied Burnie's application for leave to appeal.
On March 7, 2000, Burnie, represented by different counsel this lime, filed a motion to renew and reargue his previous, second motion to vacate his conviction. This time, he alleged other newly discovered evidence — an affidavit of Magda Santiago. Santiago purportedly saw David Jenkins, on the night of the murder, standing outside the front of the building where they both lived when gunfire erupted. The Supreme Court, on July 26, 2000, denied Burnie's motion based on Burnie's inability to satisfy the due diligence requirement. On May 3, 2001, the Appellate Division denied Burnie leave to appeal.
On June 7, 2001, Burnie sought leave from the Second Circuit to file a successive habeas corpus petition, based on alleged prosecutorial misconduct in the withholding of information about Forehand. In response, the Second Circuit issued a mandate on July 12, 2001, denying his application as unnecessary and transferring the proceedings to me so that Burnie could file a new habeas corpus petition based solely on this particular claim of prosecutorial misconduct. The court instructed that the determination of whether this claim was time-barred should focus on when the new evidence had been discovered or if the evidence could have been discovered with due diligence more than one year prior to the filing of the petition pursuant to § 2244(d)(1)(D).
On November 27, 2001, I issued an order directing Burnie to set forth in his new petition (should be choose to file one) when he became aware that Forehand would provide the information set forth in her affidavit and why, with the exercise of due diligence, Burnie (or his counsel) would not have been aware at the lime of trial of such evidence.
In his new petition for a writ of habeas corpus, Burnie alleges the following two grounds:
(a) that he was denied his Fifth Amendment due process right and that the state court's findings of fact denying his post-conviction motion are not entitled to a presumption of correctness pursuant to 28 U.S.C § 2254(d); and
(b) that defendant's federal constitutional rights were violated by prosecutorial misconduct in allowing perjured testimony to be admitted into evidence.
Burnie also raises two additional grounds; (c) that he was denied effective assistance of counsel; and (d) that the evidence was insufficient to support his conviction. I do not address these claims as the Second Circuit has granted permission for Burnie to file a new petition only with respect to the prosecutorial misconduct claim based on newly discovered evidence, and because I have issued an order to the same effect. Moreover, I have already found Burnie's ineffective assistance of counsel claim to be untimely. Burnie 1999 WL 342243, at *2, The sufficiency of the evidence claim is time-barred too, as well as procedurally barred due to Burnie's apparent failure to raise it on direct appeal and his inability under New York law to raise it now.See Bossett v. Walker. 41 F.3d 825, S29 (2d Cir. 1994) (holding claims barred because they were not presented to the New York Court of Appeals, each appellant had already made the one request for leave to appeal to which he is entitled, and collateral review under section 440, 10 of the CPL was barred since claims could have been raised on direct review but were not).
DISCUSSION
A. The Newly Discovered Evidence ClaimsBurnie asserts that "prosecutorial misconduct is the issue which underly[sic] petitioner's claim of Newly Discovered Evidence that is premised on, (1) the sworn affidavits of two material witnesses, to wit: Tonya Forehand and Magda Santiago," (Pet'r Reply and Mem. Law at 1); (see also Pet'r Suppl. Reply and Mem. Law at 20) ("the judgment is founded upon false and misleading testimony by the prosecutor's principal witness, i.e., David Jenkins. The prosecutor knew or should have reasonably known David Jenkins testimony . . . was self-serving, misleading and false.")
Burnie also seems to raise a claim of prosecutorial misconduct based on a cooperation agreement between the prosecution and Jenkins that was not provided to him. I do not address this claim here as I have previously dismissed it as untimely. See Burnie. 1999 WL 342243, at *2.
1. Tonya Forehand
Burnie asserts in his petition that he is entitled to the writ because of the purported newly discovered evidence that Forehand was with Jenkins at the time of the shooting, and thus Jenkins could not have witnessed Burnie committing the crimes for which has was convicted. Without this perjured testimony, he contends, there was no evidence that he was one of the shooters.
Burnie also claims that Jenkins's testimony was perjured because Quinn Britton, one of the victims, testified that he saw only two men firing guns, and that Burnie was not one of them. (Attach, to Pet. at 3.)
At the evidentiary hearing in state court. Forehand testified that she was continually with Jenkins in front of her building, from approximately six to nine o'clock on the evening of December 20, 1989, except for about one-half hour. That half-hour included the time of the shooting, Forehand testified that Jenkins had gone to his building during that period, which was down the road and across the street from where they were. The building was also right near the crime scene. Forehand had gone into her building at this time. (Jan. 19, 2000 Hg'r Tr, at 5, 13, 21-22) (Feb. 8, 2000 Hg'r Tr. at 24-26.)
Burnie asserts that the time period when Jenkins was not with Forehand was five to twenty minutes. (Attach, to Pet. at 9.)
Before reaching the merits of this claim, I must first consider whether the petition is timely filed under AEDPA. See La Torres v. Walker, 216 F. Supp.2d 157, 165 (S.D.N.Y. 2000). I cannot consider the merits of Burnie's claim if the petition is untimely.
Section 2244(d)(1)(D) governs the timeliness of habeas corpus petitions. Insofar as it applies here, it provides that:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of — (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C, § 2244(d)(1)(D).
Respondent persuasively contends that Burnie's petition is out-of-time because at the evidentiary hearing in state court it was shown that he had knowledge of Forehands's claim that Jenkins was with her on the night of the murder before the trial in state court. (Jan, 19, 2000 Hr'g Tr, at 27-28) (Forehand testifying that prior to trial, Burnie had asked her to testify at his trial that she was with Jenkins); (Id. at 29-30) (Forehand testifying that she was asked to be a witness by Burnie at his trial to say she was with Jenkins at the time of the crimes, and that she agreed to do so,) Burnie himself admitted that she was supposed to testify at his trial but that she did not show up. (Id. at 47-49.) Further, Burnie testified that although his attorney knew about Forehand and her proposed testimony, he rested the defendant's case without asking the trial court for an adjournment to locate Forehand, (Id. at 49); (geealso Feb. 8, 2000 Hr'g Tr. at 22-23) (The Court; "The fact that the defendant knew about [Forehand] and had an expectation of what she might say, and when she didn't say it., he can't say now he didn't know what she was going to say and that was newly discovered.") Burnie has failed to demonstrate otherwise; indeed, he has not responded to this argument or to my instruction for him to address this issue.
In this connection, Burnie asserted in state court, as well as in this petition, that Forehand did not appear in court to testify because she has been threatened by Jenkins, (Attach, to Pet. at 9.) This fact, which was found to be incredible by the state court, has no bearing on the timeliness inquiry.
Clearly, well over one year passed between Burnie's discovery of this evidence and the initial filing of the petition in this case. This is not a situation where the new evidence consists of a recantation by the witness himself. See Pacheco v. Artuz. 193 F. Supp.2d 756, 761 (S.D.N.Y. 2000) (petitioner could not have obtained evidence, through the exercise of due diligence, that the witness was lying until he actually recanted even though petitioner could have contacted the witness prior to such admission). Burme knew of Forehand's purportedly exculpatory testimony as early as 1991, when he was tried in state court. Thus, the claim is time-barred, and I need not reach the merits of the claim.
In any event, I note that on the merits, this claim would fail because the state Supreme Court's and Appellate Division's decisions did not "result[ ] in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding" 28 U.S.C. § 2254(d). A state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C. § 2254(c)(1). Here, Burnie has failed to meet this high standard. After holding an evidentiary hearing, the state court found Forehand's testimony to be incredible and to have been known by Burnie and his lawyer prior to trial. Moreover, the court found that her testimony did not refute Jenkins's trial testimony in any way. As noted above, the testimony at the hearing revealed that although Forehand was with Jenkins the night of the shooting she was not with him during the time of the shooting. Indeed, Forehand's testimony actually corroborated Jenkins's trial testimony by placing him, shortly before the shooting, within one-half a block of where he claimed to be during the shooting. Thus, I find that Burnie has not rebutted the presumption of correctness.
Burnie cannot make out a claim for prosecutorial misconduct based on these facts. Habeas relief based on a claim of prosecutorial misconduct is unavailable unless the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process,"Donnelly v. DeChristoforo. 416 U.S. 637, 643 (1974). Under this standard, a conviction based on perjured testimony must be set aside only if "the prosecution knew, or should have known., of the perjury," and "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs. 427 U.S. 97, 103 (1976); see also Fama v. Commissioner of Corr. Servs, 235 F.3d 804, 816 (2d Cir. 2000) (government must be aware of the perjury, and even then the perjury must be "material and the court [is left] with the firm belief that but for the perjured testimony, the defendant would most likely not have been convicted") (citation omitted, brackets in original). Burnie has not demonstrated that Jenkins committed perjury, let alone that the prosecutor was aware of any such tainted evidence.
2. Magda Santiago
Burnie also claims that after his first newly discovered evidence claim was denied, he discovered another new witness, Magda Santiago. Santiago provided an affidavit in which she stated that she saw Burnie's mother on the same day that the state court denied his first newly discovered evidence claim. In her affidavit, Santiago stated that she recalled seeing Jenkins standing outside the hallway of his building, halfway up the block from the scene of the murder, at the time of the shooting, Santiago also stated that, at the time of the murder and Burnie's arrest, she lived in the same building as Burnie and Jenkins, but that she did not know that Jenkins had testified at Burnie's trial.
The timing and content of Santiago's affidavit lend considerable support to respondent's claim that its procurement was a desperate attempt to plug the holes in Forehand's testimony.
The state court denied Burnie's motion to reargue the motion to vacate (which was based initially on Forehand's testimony) because Burnie did not exercise due diligence to locate Santiago before the evidentiary hearing and because her testimony could have been discovered by him, with the exercise of due diligence, prior to his trial, see People v. Burnie. No. 10128/90 (N.Y.Sup. Q. July 26, 2000) ("An investigator might have been able to locate Ms. Santiago prior to the hearing date by canvassing the 375 Williams Avenue building. Ms. Santiago's mother still resides at the building."); see also id. ("Ms. Santiago and defendant knew each other and they resided in the same building at the time that defendant was arrested and charged with the murder. Thus, there was a likelihood that her proffered testimony could have been discovered by defendant hiring an investigator to canvass the neighborhood for witnesses prior to the trial or at the time of the hearing.") Burnie contends that such reasoning is illogical since he was indigent and thus could not afford to hire an investigator. (Pet'r Reply and Mem. Law at 20.) I find that his assertion is undermined by the fact that he was able (with the help of his family) to "gather[ ] enough funds to retain an investigator in an attempt to locate Ms. Forehand." (Id. at 3.) In any event, Burnie knew of this evidence as of February 8, 2000 (see Burnie. No. 10128/90 (N.Y.Sup.Ct. July 26, 2000)) and yet filed his habeas petition based on this claim (for the first time) on July 26, 2002 — well after the one-year limitations period under § 2244(d)(1)(D) had expired. Thus, I dismiss this claim as time-barred as well.
Burnie's first petition before this Court did not include this particular claim.
As with the claim concerning Forehand's evidence (see supra note 8), I find even if the claim concerning Santiago's evidence had not been time-barred, it would fail on merits. Burnie has not shown that, based on Santiago's testimony, Jenkins's testimony was perjured, or that the prosecutor had knowledge of the perjury.
B. The Request for an Evidentiary Hearing in This Court
Burnie also contends that he is entitled to an evidentiary hearing in federal court because the facts underlying his constitutional claim are in dispute and he did not receive a full and fair evidentiary hearing in state court, (Pet'r Suppl, Reply and Mem. Law at 19-21.) He appears to make this argument only with respect to Santiago's evidence, (Pet, Reply and Mem. Law at 20-21,) As Burnie correctly points out.
There was no evidentiary hearing as to Santiago's purported testimony. The state court decided the proceeding on the parties' papers and by using previous transcripts.
[T]he presumption of correctness [to state court fact finding] does not adhere in a case in which the state court has not actually resolved the merits of a factual dispute. If the state court did not provide a full and fair hearing and did not make reliable findings relating to the material facts supportable by the record, a federal evidentiary hearing is required. Nevertheless, even if no express findings are made by the state court, a federal court must initially assess whether the state court impliedly made findings relating to the material facts. Moreover, unless it appears otherwise from the record, the federal court may presume that the state court applied the appropriate law.Campaneria v. Reid., 891 F.2d 1014, 1019 (2d Cir. 1989) (citations omitted). Although Burnie correctly recites the standard, his argument is without merit. He fails to recognize that because Santiago's evidence cannot be said to be newly discovered under AEDPA's standard, he cannot be entitled to an evidentiary hearing on the merits of his untimely claim.
To the extent that Burnie may be asserting this argument with respect to Forehand's evidence (which is not clear from his papers), his arguments are even less persuasive. Not only is this claim time-barred under AEDPA, but the state court conducted a full and fair evidentiary hearing as to the timeliness of his discovery of the new evidence as well as on the merits of that evidence. This hearing spanned three days and included the testimony of Forehand and Burnie. (see supra Part A.1.) Thus, I conclude that Burnie is not entitled to another evidentiary hearing before this Court.
CONCLUSION
For the foregoing reasons, the petition is denied. Because Burnie has failed to demonstrate that he has timely filed his claims of newly discovered evidence, and in any event his claims do not make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.
So Ordered.