Opinion
03-CV-5941 (JG).
February 2, 2005
DARREL BUTTS, Clinton Correctional Facility Annex, Dannemora, New York, Petitioner Pro Se.
RICHARD BROWN, District Attorney, Queens County, Kew Gardens, New York, By: Anastasia Spanakos, Assistant District Attorney, Attorneys for Respondent.
MEMORANDUM AND ORDER
Petitioner Darrel Butts petitions for a writ of habeas corpus, challenging his murder conviction in state court. I held oral argument on November 12, 2004, in which Butts participated by telephone. The petition is denied for the reasons set forth below.
BACKGROUND
The government's evidence at trial established that on the afternoon of May 6, 1994, Emma Mears ("Mears") was murdered in her home in the St. Albans section of Queens. Mears was stabbed nine times in the chest, and suffered a blunt trauma injury behind her left ear. Butts dated Mears's daughter, Vikki Mears ("Vikki") until around April 1994. In March 1994, Butts had an argument with Mears and her other daughter, Terri. After this argument, Vikki told Butts to no longer visit the Mears's home. The following month, Vikki ended her relationship with Butts. Butts continued to visit Mears at home. On the morning of May 6, 2004, Butts told Vikki that he had a premonition: he envisioned police and an ambulance in front of the Mears's house, which was surrounded by yellow police tape. He stated to Vikki "God forbid if it be your mother, what would you think of me?" (Tr. at 448.) Around the time of the murder, which took place between 1:00 and 3:00 p.m., Butts allegedly purchased a package of the rare brand of cigarettes that Mears smoked from a store near the Mears's home.Butts was interviewed by the police during their initial investigation. He told the police about his premonition that something was going to happen at the Mears's home. He stated that on the day of the murder, he had left his residential substance abuse program ("J-CAP") at 6:00 a.m., attended cooking school at a YMCA in Brooklyn until 1:00 p.m., and then returned to the program residence. No one was charged with Mears's murder as a result of the initial police investigation.
In the spring of 1997, the police arranged for an incarcerated informant, Steven Knowles, to be housed with Butts, who was incarcerated on an unrelated conviction. Knowles testified that at one point during the four months that they were incarcerated together, Butts confessed to Knowles that he had killed Mears in order to become closer to his ex-girlfriend, Vikki Mears.
On November 26, 1997, Butts was arrested and charged with both intentional murder and depraved indifference murder.
While awaiting trial, Butts was incarcerated at the Queens House of Detention, as was Layshawn Mitchell, an acquaintance of Butts. Mitchell testified that while they were incarcerated together, Butts told him that he had killed Mears. Mitchell entered into a cooperation agreement with the government in connection with his testimony at Butts's trial.
The jury found Butts guilty of intentional murder. He was sentenced to a term of imprisonment of twenty-five years to life.
On February 28, 2001, Butts, through counsel, appealed to the Appellate Division, Second Department. Appellate counsel argued that Butts should receive a new trial because his guilt was not proved beyond a reasonable doubt and the verdict was against the weight of the evidence. Specifically, appellate counsel argued that the only direct evidence against Butts was the testimony of Mitchell and Knowles, both of whom had motives to commit perjury. Their testimony, counsel argued, was incredible and unworthy of belief.
On July 17, 2001, Butts filed a pro se supplemental brief claiming that (1) he received ineffective assistance of counsel because (a) his attorney failed to secure the testimony of two witnesses (Malvern Hooks and Ms. Jones) who could testify to Butts's presence at the cooking school in Brooklyn on the morning of the murder; and (b) the trial court denied defense counsel's request for arrest reports concerning Knowles, which effectively curtailed the cross-examination of Knowles, which in turn deprived Butts of effective counsel; and (2) the trial court's refusal to order the disclosure of Knowles's arrest reports violated Butts's rights under Brady v. Maryland, 373 U.S. 83 (1963).
The Appellate Division rejected these challenges, and affirmed Butts's conviction on May 6, 2002. People v. Louis, 294 A.D. 2d 377 (2d Dep't 2002). The court held that: (1) Butts's contention that the evidence was legally insufficient to establish his guilt was unpreserved for appellate review; (2) on the merits, the evidence was legally sufficient to establish guilt beyond a reasonable doubt; (3) the verdict was not against the weight of the evidence; (4) Butts received effective assistance of counsel; and (5) the remaining contentions raised in Butts's supplemental pro se brief were unpreserved for appellate review and/or without merit. The Court of Appeals denied Butts's application for leave to appeal on July 23, 2002. People v. Louis, 98 N.Y.2d 695 (2002) (Rosenblatt, J.).
By pro se motion dated November 15, 2002, Butts moved in the New York Supreme Court, Queens County, to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. Butts argued that his conviction should be vacated because his trial attorney had rendered ineffective assistance of counsel. Specifically, Butts argued that his attorney: (1) should have requested a suppression hearing regarding Butts's alleged statements to the informant-witnesses Knowles and Mitchell because they were agents of the state; (2) failed to object to or request a limiting instruction regarding Knowles's testimony that Butts was incarcerated at the time of his alleged confession to Knowles; (3) failed to object when Officer O'Brien bolstered Mitchell's testimony by referring to Mitchell having told O'Brien about Butts's alleged confession; (4) failed to try to locate witnesses Hooks and Jones until the beginning of trial, and ultimately failed to get either of them to testify; (5) failed to move to preclude testimony of several witnesses, including Mitchell, Knowles, and Rafael Torres, a grocery clerk who testified that Butts had purchased cigarettes near the Mears home on the day of the murder; (6) failed to properly preserve a legal sufficiency claim for appellate review; and (7) at a pre-trial hearing, failed to move to preclude identification evidence provided by an unidentified witness.
The Queens County Supreme Court denied Butts's § 440.10 motion on February 3, 2003. The court held that Butts's claims were procedurally barred from review because the overarching claim, ineffective assistance of counsel, was reviewed on the merits and rejected by the Appellate Division on direct appeal. See N.Y. Crim. Proc. Law § 440.10(2)(a) (procedural bar where appeal court previously determined claim on the merits); § 440.10(2)(c) (procedural bar where defendant unjustifiably failed to raise claim on appeal). The court held that "this Court finds many procedural reasons to deny the defendant's instant motion to vacate this judgment. The claims raised here have previously been determined in the appellate courts. All other claims raised are unsupported, conclusory statements made by the defendant." The Appellate Division denied Butts's application for leave to appeal on October 7, 2003.
NY Crim. Pro. Law § 440.10(2) reads, in pertinent part: [the court must deny a motion to vacate a judgment when] (a) The ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment, unless since the time of such appellate determination there has been a retroactively effective change in the law controlling such issue; or (b) The judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal; or (c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him.
On November 21, 2003, Butts filed the instant petition for a writ of habeas corpus, raising the following grounds: (1) that the evidence at trial was legally insufficient to support his conviction; (2) that he received ineffective assistance of counsel because (a) counsel failed to call witnesses Hooks and Jones; (b) the trial court improperly curtailed the cross-examination of Knowles; and (c) counsel unprofessionally erred; and (3) the trial court deprived Butts of exculpatory material, violating his rights under Brady v. Maryland.
The petition also raised the ground that the verdict was against the weight of the evidence. Whereas such a claim may be grounds for relief in state court, it is not a cognizable ground for federal habeas corpus relief.
DISCUSSION
A. The Standard of ReviewThe Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a 'governing legal principle' to 'a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 539 U.S. 510, 520 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 76 (2003)).
Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (quoting Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 540 U.S. 1, 5 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable."); Wiggins, 539 U.S. at 520-521 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (ellipsis in original) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated in Sellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.261 F.3d 303, 312 (2d Cir. 2001).
B. Butts's Claims
1. The Sufficiency of the Evidence Claim
Butts claims that the evidence was insufficient to support the verdict against him because "the only direct evidence connecting [Butts] to the crime was the untrustworthy testimony of two jail-house informants who claimed that petitioner confessed to them."
The Appellate Division held both that the insufficiency claim was unpreserved for appellate review and that the evidence was legally sufficient to establish guilt beyond a reasonable doubt. People v. Louis, 294 A.D.2d 377 (2d Dep't 2002) (explaining that "[t]he fact that two of the People's witnesses had unsavory and criminal backgrounds, and one testified pursuant to a cooperation agreement, does not render their respective testimony incredible as a matter of law.").
Federal courts generally may not review state court decisions that rest on an adequate and independent state procedural ground unless the petitioner can show both cause for the default and prejudice or demonstrate that a fundamental miscarriage of justice will result if the claim is not reviewed. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Harris v. Reed, 489 U.S. 255, 262 (1989); but see Lee v. Kemna, 534 U.S. 362, 376, 381 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question").
The existence of cause for a procedural default turns on whether the prisoner can show an objective factor external to the defense that "impeded counsel's efforts to comply with the State's procedural rule." Coleman, 501 U.S. at 753 (internal quotation omitted). For example, a petitioner may establish cause by showing "'that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that some interference by officials . . . made compliance impracticable.'" Coleman, 501 U.S. at 753 (ellipses in original) (quotation marks omitted) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). To satisfy the prejudice requirement, the alleged error must have worked to the petitioner's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003) (internal quotation omitted). If the petitioner cannot show cause and prejudice, he may "bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup v. Delo, 513 U.S. 298, 321 (1995)).
Here, Butts has not demonstrated cause for his procedural default, and I cannot find that a fundamental miscarriage of justice will result if I decline to entertain the claim.
In any event, the sufficiency claim fails on habeas review. A petitioner challenging the sufficiency of the evidence bears "a very heavy burden." Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (internal quotation omitted). A state criminal conviction will be upheld if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); see also Ponnapula, 297 F.3d at 179 ("we review the evidence in the light most favorable to the State and the applicant is entitled to habeas corpus relief only if no rational trier of fact could find proof of guilt beyond a reasonable doubt based on the evidence adduced at trial.").
In making this assessment, a court may neither "disturb the jury's findings with respect to the witnesses' credibility," United States v. Roman, 870 F.2d 65, 71 (2d Cir. 1989), nor "make credibility judgments about the testimony presented at petitioner's trial or . . . weigh conflicting testimony." Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (citing United States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989)). Thus, under this "rigorous standard," a "federal habeas court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994) (quoting Jackson, 443 U.S. at 326).
Butts argues that the evidence is insufficient to support his conviction because Mitchell and Knowles were "jail house" informants, who had strong motives for perjuring themselves. Testimony by informants in prisons is often unreliable. See Zappulla v. New York, 391 F.3d 462, 470 n. 3 (2d Cir. 2004) ("As a general matter, we note that numerous scholars and criminal justice experts have found the testimony by 'jail house snitches' to be highly unreliable."). As the Appellate Division noted in this case, however, this general observation regarding "jailhouse" informants does not translate into a per se rule that all such testimony is incredible as a matter of law. See Louis, 294 A.D.2d at 377. Mitchell and Knowles both testified before the jury. Mitchell was extensively cross-examined about his criminal background and the benefit he would receive from cooperating. See Tr. at 679-707 (Mitchell testified that by cooperating, he would significantly reduce the amount of prison time he was facing for his latest offense). Knowles also testified on cross-examination to, among other things, his extensive criminal background, his long-term use of cocaine and heroin, and a purported desire to inform on Butts out of a sense of justice and without expecting any benefit in return. See Tr. at 807-828. In his summation, defense counsel argued at length that the jury should not find Mitchell or Knowles to be credible. See Tr. at 1203-09.
As a habeas court, I assume that any conflicting inferences one could draw from Mitchell and Knowles testimony were resolved by the jury in favor of the prosecution. In addition to the testimony of Mitchell and Knowles, the state's evidence included: (1) Butts had told Vicky on the morning of the murder that he envisioned police and an ambulance in front of Mears's home, and said to Vicky, "God forbid if it be your mother, what would you think of me?"; (2) Butts purchased a package of the uncommon brand of cigarettes Mears smoked from a grocery near Mears's home around the time that the murder occurred; and (3) Butts had been told by Vicky to no longer go to Mears's home, but Butts continued to do so. I cannot say that, viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found Butts guilty of murder. The Appellate Division's holding that the evidence was legally sufficient to convict Butts was not an unreasonable application of federal law, and Butts cannot prevail on this ground for relief.
2. The Ineffective Assistance of Counsel Claims
Butts argues that he received ineffective assistance of counsel because (1) his trial counsel failed to call two witnesses on his behalf; (2) the trial court curtailed cross-examination of Knowles; and (3) his counsel unprofessionally erred.
The Supreme Court has established the following standard for ineffective assistance claims:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984).
Thus, to make out this type of claim, the petitioner must demonstrate both (1) that his attorney's performance "fell below an objective standard of reasonableness," id. at 688, and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In assessing the reasonableness of counsel's performance, judicial scrutiny "must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (quotation marks omitted); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); see also Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003) (per curiam) ("[C]ounsel has wide latitude in deciding how best to represent a client. . . .").
In assessing counsel's performance, I "must conduct an objective review . . . measured for 'reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen 'from counsel's perspective at the time.'" Wiggins v. Smith, 539 U.S. 510, 523 (2003) (quoting Strickland, 466 U.S. at 688-89)). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "'the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Id. at 521 (quoting Strickland, 466 U.S. at 688).
To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome. Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
a. Failure to call witnesses
Butts alleges that his trial counsel was ineffective because he failed to call two witnesses on Butts's behalf, Malvern Hooks and Ms. Jones. Hooks was in the same residential program as Butts, and she attended the cooking school with Butts on the day of the murder. Jones was an instructor at the cooking school.
i. Malvern Hooks
Defense counsel stated that Hooks would testify that on the day of the murder, she attended cooking school in Brooklyn with Butts, but that she left the school around 12:00 p.m. Counsel's failure to secure Hooks's testimony did not constitute ineffective assistance.
First, counsel's efforts to secure the testimony were not objectively unreasonable. After counsel's investigator located Hooks at the start of the trial, the investigator made numerous attempts to subpoena Hooks, but she actively avoided the investigator. After all the other witnesses had testified, counsel requested, and was granted, an adjournment to try and produce Hooks, which he was unable to do.
Even if counsel's efforts were arguably unreasonable, however, Butts's claim also fails on the second prong of Strickland. The testimony counsel sought to elicit placed Butts at the cooking school in Brooklyn until 12:00 p.m. The murder occurred in St. Albans, Queens, sometime between 1:00 and 3:00. Hooks's testimony did not negate Butts's guilt. It was not the sort of testimony that would have altered the result of the trial. The failure to procure it thus did not constitute ineffective assistance of counsel.
ii. Ms. Jones
Defense counsel stated that, according to a report prepared by a police detective, a YMCA cooking instructor named Ms. Jones told the detective that Butts was at the cooking school until 1:00 in the afternoon on the day of the murder. Though counsel knew of the existence of Ms. Jones for a significant amount of time prior to trial, he apparently did not begin to make inquiries into her whereabouts until the trial began. Unable to find Jones during the trial, counsel requested that he be able to call the detective to testify regarding the contents of his report. (Tr. at 1102-03.) The court denied this request. (Tr. at 1109.) The court further denied a request for an adjournment while counsel made further attempts at finding Jones. (Tr. at 1179.)
The record is devoid of any reason why defense counsel did not investigate the whereabouts of Ms. Jones earlier. His failure to do so, however, does not constitute ineffectiveness assistance. Testimony that Butts was at the cooking school — even until 1:00 — was not inconsistent with the prosecutor's theory that Mears was killed between 1:00 and 3:00 in Queens. Therefore, as with the testimony of Hooks, counsel's failure to call Jones did not constitute ineffective assistance of counsel.
b. Curtailment of Cross-Examination
Butts contends that the trial court curtailed the cross-examination of informant Steven Knowles, and this in turn violated Butts's right to effective assistance of counsel. (As discussed below, Butts casts virtually the same claim as a violation of Brady v. Maryland.)
Before the prosecution's opening statement, defense counsel was provided with Knowles's rap sheet. On the morning that Knowles testified, the following colloquy took place:
THE COURT: [F]or the record, do you have any detailed information about [Steven Knowles's] background that you have not turned over to counsel?
. . .
MS. LEOPOLD [prosecutor]: I have copies of his arrest reports.
THE COURT: Did you give that to him, counsel.
MS. LEOPOLD: I'm not required to give it to him. If the Court is directing me to give it to him, I certainly will.
THE COURT: No. Do you have any detailed information about this witness's prior criminal record that you did not turn over to counsel?
MS. LEOPOLD: What I turned over to counsel was the rap sheet, which I was required to do and which the Court had directed me to do. Just this morning, before the witness testified, I was provided with copies by my paralegal of records she had requested, which were arrest run reports. I did not believe I was required to give that to defense counsel, but I believe I fulfilled what I was required to do.
. . .
MR. DE FELICE [defense counsel]: I'd like to have what she has on Mr. Knowles. She said just before she was provided something by her assistant, a paralegal, and I've never gotten that, these runs or arrest reports. I don't have that on Mr. Knowles.
MS. LEOPOLD: Your Honor, I mean, if I may, I would like to know what provision, what statutory provision defense counsel is looking to to have the prosecution provide that?
Mr. DE FELICE: You see, if she has it, it's one thing. If she doesn't have it and I can't get it out of storage and I can't go to the files because they're old, and the Court relies on the statute and doesn't give me a continuance. It's another thing if she has it. The Court knows I can't get it because of the situation and files are in storage and I can't get it from counsel if she has it, I think that's another impropriety, I think I should be provided that. That's fundamental fairness.
THE COURT: All right. I'm not going to order her to turn anything over other than she's given you the rap sheet.
MR. DE FELICE: Fine.
Tr. at 835-37.
Shoehorning Butts's dissatisfaction with the trial court's ruling into an ineffective assistance of counsel claim is a stretch. Butts has not alleged, let alone established, any conduct on the part of his counsel with respect to the court's ruling on the arrest records that is unreasonable.
More substantively, the claim fails because the absence of the arrest records did not effectively curtail counsel's cross-examination of Knowles. Counsel elicited testimony from Knowles regarding four prior felony convictions, six prior misdemeanor convictions, crimes for which Knowles was never caught, and extensive drug use. Specifically, Knowles testified regarding convictions for: (1) robbery in the first degree, where other perpetrators brandished a plastic gun that appeared real; (2) criminal possession of stolen property; (3) possession of a controlled substance (three convictions, for both heroin and cocaine); (4) larceny (twice); (5) reckless endangerment in the second degree; and (6) robbery in the second degree. In addition, Knowles testified to: (7) violating parole; (8) jumping bail; (9) using cocaine for nine years; (10) using heroin for seven years; (11) being in and out of jail; (12) stealing to, in part, maintain his drug habit; and (13) stealing items that he later sold for money, and for which he was never arrested. In addition, counsel cross-examined Knowles extensively about his rationale for becoming an informant, which Knowles maintained was solely because he "wanted justice to be served," Tr. at 807, and not because he was seeking any benefit from the government.
Counsel effectively challenged Knowles's credibility by exploring Knowles's extensive criminal past. His examination of Knowles was not limited in any meaningful way by the trial court, who other than sustaining two insignificant objections, did nothing to limit counsel's questioning of Knowles. While Knowles's arrest records may have added some level of detail to Knowles prior criminal activities, Butts has not established that the inability of counsel to examine Knowles about these reports created the reasonable probability that the outcome of Butts's trial would have been different. Accordingly, Butts' claim of ineffectiveness of counsel on this ground fails.
c. Unprofessional Errors
Butts claims that he received ineffective assistance of counsel because his trial counsel made "unprofessional errors." It is not clear, however, to which errors he is referring. In the exhibit included in his "Traverse" (Butts's reply to the state's opposition to his habeas petition), Butts includes references to: (1) the failure to locate witnesses Hooks and Jones; and (2) the failure to preserve for appellate review the claim that Butts' right to confront witnesses was violated because of the curtailment of the cross-examination of Steven Knowles. The first claim was discussed, and rejected, above. The second claim fails because there was no confrontation clause violation in the examination of Knowles.
The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution to confront and cross-examine witnesses against him. Davis v. Alaska, 415 U.S. 308, 315 (1974). The Clause does not prohibit, however, a trial judge from imposing reasonable limits on a defense attorney's cross-examination of a government witness. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) ("[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant."). The Confrontation Clause "guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Id. quoting Delaware v. Fensterer, 474, U.S. 15, 20 (1985) (per curiam) (emphasis in original)). "So long as the 'jury is in possession of facts sufficient to make a discriminating appraisal of the particular witness's credibility, cross-examination is not improperly curtailed." Lugo v. Edwards, No. 97 Civ. 7789 DC, 1998 WL 601080 (S.D.N.Y. Sept. 9, 1998) (quoting United States v. Roldan Zapata, 916 F.2d 795, 806 (2d. Cir. 1990) (internal quotations omitted)).
Here, as discussed above, non-disclosure of Knowles's arrest record did not prevent counsel from having the opportunity to to provide the jury with facts sufficient to make a discriminating appraisal of Knowles's credibility. Because there was no violation of the Confrontation Clause, there can be no ineffectiveness of counsel in counsel's failure to preserve the claim for appellate review.
The state has construed Butts's claim of "unprofessional errors" to include those errors which he submitted in his § 440 motion to vacate. See Mem. in Opp'n to Habeas Petition ¶ 21 n. 1. To the extent that Butts is realleging claims from his § 440 motion not discussed in his papers in support of his petition, I decline to entertain those claims, which the state court held were procedurally barred. This bar is an adequate and independent state ground that generally precludes habeas review. Butts has failed to show any cause for his procedural default, and I do not find that a fundamental misarrange of justice will result if I decline to entertain these claims, which are therefore rejected.
Claims set forth in Butts § 440.10 motion but not discussed in his papers in support of his petition include the claim that counsel was ineffective because he (1) did not request a suppression hearing regarding Butts's alleged statements to Knowles and Mitchell, who were agents of the state; (2) failed to object or request a limiting instruction regarding Knowles's testimony that he and Butts were incarcerated at the time Butts allegedly confessed; (3) failed to object to Officer O'Brien's bolstering of Mitchell's testimony; (4) failed to move to preclude testimony of Mitchell, Knowles, or Rafael Torres; and (5) failed to move to preclude identification evidence at a pre-trial hearing.
3. The Brady Claim
Butts claims that the trial court's refusal to order disclosure of exculpatory evidence violated the disclosure requirements of Brady v. Maryland, 373 U.S. 83 (1963). As a preliminary matter, the state argues that habeas review is precluded because of a procedural default, namely, that the Brady claim was unpreserved for appellate review, which provides an adequate and independent state ground that in turn bars federal habeas review. In its order affirming the judgment against Butts, the Appellate Division stated that Butts's "remaining contentions, raised in his supplemental pro se brief (which included the Brady claim) are unpreserved for appellate review and/or without merit." Because of the ambiguity inherent in such a statement, I conclude that Butts's claim is subject to federal review on the merits. See Harris v. Reed, 489 U.S. 225, 261-63 (1989) ("state court must actually have relied on the procedural bar as an independent basis for its disposition of the case [by] clearly and expressly stat[ing] that its judgment rests on a state procedural bar.") (internal citations and quotations omitted); Galarza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001) (state court's reliance on a procedural bar must be unambiguous); Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810 (2d Cir. 2000) (claims disposed of by stating "either unpreserved for appellate review or without merit" are subject to federal habeas review on the merits).
In a criminal prosecution, the government has a constitutional obligation to disclose material, exculpatory evidence to the defendant. See Giglio v. United States, 405 U.S. 150, 154 (1972); Brady, 373 U.S. at 87. A Brady violation occurs where "(1) the government failed to disclose favorable evidence; and (2) the undisclosed evidence was material." United States v. Amiel, 95 F.3d 135, 144 (2d Cir. 1996). Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). A "reasonable probability" of a different result exists where the nondisclosure "undermines confidence in the outcome of the trial." Kyles v. Whitley, 514 U.S. 419, 434 (1995) (internal quotation omitted). Both impeachment evidence and exculpatory evidence fall within the Brady rule. See United States v. Bagley, 473 U.S. 667, 676 (1985) ("[s]uch evidence is "'evidence favorable to an accused,' so that, if disclosed and used effectively, it may make the difference between conviction and acquittal." (quoting Brady, 373 U.S. at 87)). Impeachment evidence is material "where the likely impact on the witness's credibility would have undermined a critical element of the prosecution's case." United States v. Amiel, 95 F.3d at 145 (quoting United States v. Wong, 78 F.3d 73, 79 (2d Cir. 1996)). Impeachment evidence is not material, however, if it "merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable." Id. (quoting Wong, 78 F.3d at 79).
Here, for the reasons discussed above in connection with Butts's claim of ineffective assistance of counsel, Butts fails to establish that there is a reasonable probability that disclosure of Knowles's arrest records would have altered the result of his trial. Butts's counsel had the opportunity to impeach Knowles's credibility by examining his extensive prior criminal record in detail, with Knowles testifying to numerous convictions, a long-term drug habit, being in and out of jail, and jumping bail, among other things. The arrest records could only serve to merely furnish "an additional basis on which to impeach a witness whose credibility has already been shown to be questionable." Amiel, 95 F.3d at 145. I find that disclosure of Knowles's arrest record does not create a reasonable probability that the result of his trial would have been different. Accordingly, Butts cannot prevail on this ground for habeas relief.
CONCLUSION
For the foregoing reasons, the petition is denied. As Butts has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.So Ordered.