Opinion
No. 02 Civ. 9505 (BSJ) (MHD).
April 29, 2005
Order and Opinion
On November 16, 2002, Petitioner Richard Dukes ("Dukes") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 challenging his murder conviction in New York State Supreme Court, New York County. I referred Dukes' petition to Magistrate Judge Dolinger. On December 14, 2004, Magistrate Judges Dolinger issued a Report and Recommendation recommending that I deny Dukes' petition. On December 23, 2004, Dukes submitted timely objections to Judge Dolinger's Report and Recommendation pursuant to Rule 72 of the Federal Rules of Civil Procedure and the Federal Magistrates Act, 28 U.S.C. § 636(b)(1)(c). I review those portions of the report to which Dukes objects de novo, Ramirez v. Atty. Gen., 2001 WL 902557, at *1 (S.D.N.Y. 2001), and those parts of the report to which Dukes does not object for plain error. Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991).
Dukes advances four grounds for relief: (1) that the prosecutors violated Brady v. Maryland, 373 U.S. 83 (1963) and People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448 (1961) by withholding written notes and reports prepared by detectives investigating his case; (2) that the prosecutor failed to prove his guilt beyond a reasonable doubt; (3) that the prosecutor failed to correct a witness's testimony regarding consideration received from the District Attorney's office in exchange for testifying; and (4) that he was prejudiced by "pre-indictment" delay. Dukes withdrew the third and fourth grounds before Judge Dolinger's issued his Report and Recommendation. I therefore address only grounds one and two in this order.
Discussion
As to ground one, Judge Dolinger found that that Dukes' Brady and Rosario claims were procedurally barred. The Brady and Rosario claims were first brought by Dukes in a section 440.10 motion to vacate, which the trial court denied in 1992. Judge Dolinger explained that Dukes failed to comply with the thirty-day time limit for seeking leave to appeal from an adverse trial-court opinion, and the claim was therefore procedurally barred.
A federal court may not grant a petitioner habeas relief unless the petitioner has exhausted his remedies in state court. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). These remedies include discretionary appeals. Id. at 845. Dukes did not object to Judge Dolinger's finding that this claim is procedurally barred. I find that those findings meet the clear error standard, and therefore I adopt his recommendation to deny ground one of the petition.
Ground two of Dukes' petition reads: "The sole witness to the incident testified that he did not see the defendant fire the shot. The People failed to prove appellant's guilt beyond a reasonable doubt." (Pet. at ¶ 13). Judge Dolinger found that this claim was procedurally viable, but that it failed on the merits. Dukes objects to this finding; I therefore review this portion of the Report and Recommendation de novo.
I find no clear error in this aspect of Magistrate Judge Dolinger's analysis and therefore adopt it.
Habeas relief for a state court decision on the merits may only be granted if it "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or if it "resulted 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)(1) (2).
In his objections to Judge Dolinger's Report, Dukes primarily relies on Ortega v. Duncan, 333 F.3d 102 (2d Cir. 2003), where the Second Circuit wrote that "when false testimony is provided by a government witness without the prosecution's knowledge, due process is violated only if the testimony was material and the court is left with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted." Id. at 108 (internal quotations omitted). I note that as a matter of habeas law, Ortega is a Second Circuit case the holding of which has not been adopted by the Supreme Court. Even if Ortega were "clearly established federal law" within the meaning of section 2254, it does not create a constitutional claim for the case at hand and therefore does not require the granting of Dukes' petition.
Dukes argues that the prosecution's sole eye witness against him, William Walker, did not actually see the shooting, and was therefore lying when he gave testimony to that effect at trial. In the alternative, Dukes asserts that Walker lacked credibility, and that therefore the prosecution failed to present sufficient evidence to prove his guilt beyond a reasonable doubt. In support of the latter argument, Dukes points to the fact that after the trial, Walker recanted his trial testimony (only to later recant that recantation). He also relies on Walker's admission to having provided false testimony for the government at a separate, unrelated homicide trial.
Unlike in Ortega, however, I find there is no violation of due process here. On the contrary, the trial court very carefully weighed the credibility of Walker's testimony and recantations in response to Dukes' 440.10 motion. Walker was thoroughly cross-examined at trial about his ability to see the shooting and his willingness to be truthful, and the judge credited Walker's testimony. In the face of the recantations, the judge again heard testimony from Walker and again credited his testimony, finding that Walker recanted his testimony because he feared retaliation from Dukes. (R. at 600D.) Walker "asserted, unequivocally, that his earlier recantations were false and that his trial testimony was true." (R. at 600D.) The trial court chose to credit that testimony.
"[P]articularly strong deference" should be given to the credibility determinations made by the factfinder, as he is in the best position to assess the witness. Ortega, 333 F.3d at 107. When considering the reasonableness of the factfinder's determinations, it is not for the federal court to assert its own opinion as to the guilt or innocence of the petitioner, but instead to ask "whether, 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 added); Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir. 1994).
I find that the trial court made no error in crediting Walker's testimony, and having found Walker's testimony to be credible, a reasonable factfinder could find that the evidence was sufficient to convict Dukes. Accordingly, it cannot be said that Dukes' conviction was "a decision that was based on an unreasonable determination of the facts in light of the evidence presented." Dukes' insufficiency claim therefore fails on the merits. Moreover, since the trial court determined that Walker's trial testimony was true, Duke's due process rights were not violated.
Conclusion
For the forgoing reasons, Dukes' 28 U.S.C. § 2254 petition is denied.
SO ORDERED.