Opinion
97-CV-300E(F)
May 10, 2001
Mark R. Uba, Esq. Buffalo, NY, for Petitioner.
Frank J. Clark, III, District Attorney, Erie County, Steven Meyer, Assistant District Attorney, Buffalo, N Y for Respondent.
REPORT and RECOMMENDATION DECISION and ORDER
As Petitioner's request for reconsideration of the order denying bail is non-dispositive, to simplify consideration of all issues raised by Petitioner, the court addresses his bail request in this Report and Recommendation.
JURISDICTION
Petitioner, Salvator Letizia, initiated this action requesting habeas corpus relief under 28 U.S.C. § 2254 on April 21, 1997. The matter was referred to the undersigned by the Honorable John T. Elfvin, on September 9, 1997 for all proceedings necessary to reach a determination in this matter. It is currently before the court on Petitioner's motion for reargument and reconsideration of the court's order denying Petitioner bail (Doc. # 31), filed February 22, 1999, and the merits of the petition.
BACKGROUND
On September 2, 1987, Petitioner Salvator Letizia ("Letizia"), was indicted by an Erie County Grand Jury on three counts including Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110 and 125.25-1 (McKinney 1998), Assault in the First Degree (N.Y. Penal Law § 120.10-1), and Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 165.02-1), in connection with the stabbing of Joseph Bruno ("Bruno") on June 29, 1987 that occurred in the apartment of Joseph Johnson ("Johnson") located at 1234 Hertel Avenue in Buffalo, New York. At his arraignment before New York Supreme Court Justice Julian F. Kubiniec on September 11, 1987, Letizia pleaded not guilty to each charge. Letizia was represented at pre-trial proceedings and at trial by E. Carey Cantwell, Esq. Assistant District Attorney Yvonne Vertlieb prosecuted the case. Pre-trial hearings included, inter alia, a motion to sever and try Letizia separate from Johnson, which was granted on March 18, 1988.
Unless otherwise indicated, all references to New York Penal Law are to "McKinney 1998."
The Indictment also charged Johnson as a co-defendant in the attempted murder and assault charges, and separately charged Johnson with criminal weapon possession and two drug-related crimes.
Justice Kubiniec presided over the trial which commenced on March 21, 1988 and concluded on April 1, 1988 when the jury found Letizia guilty on all three counts. On June 27, 1988, Justice Kubiniec sentenced Letizia to indeterminate terms of incarceration ranging from seven to 21 years for the attempted murder conviction, four to 12 years on the assault conviction and two to six years for the weapon possession conviction, all terms to run concurrently.
Letizia, represented by Lisa Barnard, Esq., filed a timely notice of appeal to the Appellate Division, New York Supreme Court, Fourth Department. On March 16, 1990, the Appellate Division unanimously affirmed Letizia's conviction. People v. Letizia, 552 N.Y.S.2d 732 (App. Div. 4th Dep't 1990). Leave to appeal to the New York Court of Appeals was denied on May 10, 1990. People v. Letizia, 557 N.E.2d 1196 (N.Y. 1990). On June 11, 1992, Letizia filed a motion to vacate the judgment of conviction pursuant to N.Y. Criminal Procedure Law ("N.Y. Crim. Proc. Law") § 440.10 (McKinney 1994). Justice Kubiniec denied the motion by order dated January 21, 1993. Letizia's motion for reargument and reconsideration, filed February 26, 1993, was denied on January 18, 1994. Leave to appeal to the Appellate Division, New York Supreme Court, Fourth Department was denied on January 26, 1994.
Unless otherwise indicated, all references to N.Y. Crim. Proc. Law are to "McKinney 1994."
On January 13, 1997, Letizia filed a petition for a writ of error coram nobis, with the Appellate Division, New York Supreme Court, Fourth Department, asserting that he was denied effective assistance of appellate counsel. On April 25, 1997, the motion was denied.
Letizia maintains that the Court of Appeals denied his application for leave to appeal the Appellate Division's denial of his coram nobis petition. Petitioner's Pro Se Memorandum, filed April 21, 1997 (Docket Item No. 3), at 4-5. However, the record is devoid of any indication that Letizia applied for such leave to appeal.
Meanwhile, on April 21, 1997, Letizia filed a petition seeking federal habeas relief pursuant to 28 U.S.C. § 2254 asserting eight grounds for relief including (1) violation of Letizia's Sixth Amendment right to confrontation; (2) violation of Letizia's Fifth and Fourteenth Amendment right to exculpatory information; (3) violation of Letizia's Fourteenth Amendment right to present evidence in his own behalf; (4) the prosecution allegedly solicited testimony known to be false; (5) failure to provide Brady material; (6) improper jury instruction as to reasonable doubt; (7) ineffective assistance of appellate counsel; and (8) ineffective assistance of trial counsel. Petitioner also filed a Memorandum of Law (Docket Item No. 3) ("Petitioner's Pro Se Memorandum") with attached exhibits. By order dated May 5, 1997, Letizia was ordered to show cause as to why his petition should not be dismissed as time-barred under 28 U.S.C. § 2244(d)(1). Accordingly, on May 22, 1997, Letizia filed a response explaining that although his habeas corpus petition was filed more than one year after the final decision on his direct appeal, it was filed within one year of the final decision on his collateral appeal which was issued on April 25, 1997. By Order dated May 29, 1997, Letizia's petition was deemed timely filed.
On September 4, 1997, Respondent filed an answer to the petition (Docket Item No. 7), accompanied by a Memorandum of Law in support (Docket Item No. 8). The state court records were received on September 11, 1997.
On September 29, 1997, Letizia moved for appointment of counsel. The motion was granted on March 20, 1998 and the court assigned R. Nils Olsen, Jr., Esq., as Letizia's attorney. When an irreconcilable difference arose between Letizia and his assigned counsel, the court, on June 5, 1998, vacated the previous order assigning Mr. Olsen as Letizia's attorney, and assigned Alan Birnholz, Esq. as counsel.
On October 30, 1998, Letizia moved for release from custody pending determination of his habeas petition. Respondent, on November 17, 1998, filed an affidavit in opposition to the motion for release, and Letizia filed an affidavit in reply on December 2, 1998. By order dated January 11, 1999, the court granted Mr. Birnholz's request to withdraw as Letizia's attorney. On February 4, 1999, the court denied Letizia's motion to be released from custody pending determination of the merits of his habeas petition.
On February 8, 1999, Letizia filed a pro se motion for an evidentiary hearing. The court, on February 19, 1999, appointed Mark R. Uba, Esq., as Letizia's attorney. On February 22, 1999, Letizia filed a pro se motion for reargument and reconsideration of the court's order denying him bail. (Docket Item No. 31). On March 4, 1999, Respondent filed the Affidavit of Hans Walker in opposition to the motion for an evidentiary hearing (Docket Item No. 33) ("Walker Affidavit"), and a Memorandum of Law (Docket Item No. 34) ("Respondent's Reply Memorandum"). Respondent, on March 22, 1999, filed the Affidavit of Steven Meyer, Assistant District Attorney, in opposition to the motion for reargument and reconsideration. (Docket Item No. 37) ("Meyer Affidavit"). On May 24, 1999, Letizia filed an affidavit in opposition to the Walker Affidavit (Docket Item No. 41) and a supplemental affidavit in opposition to Respondent's opposition to an evidentiary hearing (Docket Item No. 43). By letter dated September 28, 1999, Letizia withdrew his motions for an evidentiary hearing (Docket Item No. 27) and for reconsideration of the bail determination (Docket Item No. 31).
On December 13, 1999, Letizia filed a Memorandum of Law in which he indicated he was renewing his motion seeking reconsideration of his motion for bail. (Docket Item No. 45) ("Petitioner's Memorandum"). On January 13, 2000, Respondent filed a Memorandum of Law in opposition to Letizia's motion for reconsideration. Docket Item No. 47 ("Respondent's Memorandum"). On February 4, 2000, Letizia filed a Reply Memorandum of Law in support of his motion for reargument and reconsideration of his motion for bail (Docket Item No. 49) ("Petitioner's Reply Memorandum").
Based on the following, Petitioner's motion for reargument and reconsideration of the court's order denying him bail (Docket Item No. 31) is DENIED, and the petition should be GRANTED in part and DISMISSED in part.
FACTS
The fact statement is taken from the transcript of Petitioner's trial and the papers filed in this action.
It is undisputed that on June 29, 1987, 30-year old Joseph Bruno was stabbed 32 times while inside the second-floor apartment of Joseph Johnson, located at 1234 Hertel Avenue in Buffalo, New York, and that Johnson participated in the stabbing. Bruno's injuries were life-threatening and have resulted in permanent nerve damage to Bruno's arm. In dispute, however, is whether Johnson acted alone, or whether Letizia, whose presence in the apartment was also at issue in the trial, assisted in the stabbing by encouraging the assault, hitting Bruno over the head with a pipe, and also stabbing Bruno.
On March 18, 1988, Justice Kubiniec granted Letizia's motion to be separately tried from co-defendant Johnson. Letizia's trial commenced on March 21, 1988 and continued through April 1, 1988 when the jury returned a verdict finding Letizia guilty on all three counts of the Indictment. Although Johnson was called by the defense to testify, he invoked his Fifth Amendment right against self-incrimination and answered no questions of any substance. T. at 715-16.
At trial, Bruno testified that he has been convicted of several crimes in New York, since 1973 when he was first convicted of disorderly conduct in connection with a charge that he stole beer from a grocery store. T. 149-50. Bruno's other convictions include (1) disorderly conduct in December 1975, (2) attempted criminal possession of a weapon in 1976, (3) attempting to resist arrest in 1979, (4) burglary in November 1979, (5) driving while impaired by alcohol in June 1981, (6) unauthorized use of a motor vehicle in August 1983, and (7) disorderly conduct in May 1986. T. 150-55.
"T." references are to the page number of the transcript of Letizia's trial.
On October 10, 1985, Bruno pleaded guilty in Nevada to Grand Theft Auto for which he was sentenced to five years probation. T. 156-57; State of Nevada Department of Parole and Probation, Probation Violation Report, attached as Exhibit B to Petitioner's Pro Se Memorandum. Bruno testified that in the spring of 1987, he violated his probation by moving from Nevada back to Buffalo, where he attempted to obtain work as a carpet cleaner. T. at 126-27, 157-59, 174. Upon returning to Buffalo, Bruno lived with his mother at 1018 Parkside Avenue. T. at 216.
Bruno testified that late in the evening on June 28, 1987, he stopped by his friend Joseph Johnson's apartment to watch television. T. at 143-44, 204-05. Letizia arrived while Bruno was present and Bruno, in Letizia's presence, mentioned that he had run into Billy Burkhardt who had invited Bruno to stop over. T. at 144. According to Bruno, Letizia appeared "irritated" upon hearing Burkhardt's name and stated that Burkhardt was "a no good rat" who had made statements against several of Letizia's friends implicating them as drug dealers. T. at 144-45, 207. Bruno stated that the conversation, although not an argument, had an "edge" to it which made Bruno uncomfortable and caused him to leave. T. at 144-45, 207-08.
After leaving Johnson's apartment, Bruno went to Buffalo's East Side neighborhood where he met up with some friends and had drinks with them at the Big Timers Club and another bar. T. at 173, 205, 210-14. Around 4:30 A.M. on June 29, 1987, Bruno drove home to his mother's house, dropping off his friend Jimmy Mazzone along the way. T. at 210, 213-14. Mazzone testified that Bruno arrived at the Big Timers Club on June 28, 1987 at 11:30 P.M., where they drank alcoholic beverages until 12:30 A.M. when they went to another bar, the Key Largo, for drinks, and then returned to the Big Timers Club around 3:00 A.M. where they each had another couple of drinks. T. at 807-09. Mazzone testified that Bruno drove him home at 3:45 A.M. on June 29, 1987. T. at 821.
Bruno testified that during the morning of June 29, 1987, he drove to the Daisy Fresh Carpet Service in the Buffalo suburb of Cheektowaga, New York, where he purchased $500 worth of carpet cleaning supplies for his carpet cleaning service. T. at 215-16. After completing the errand, Bruno returned to his mother's house where he worked on his truck while drinking beer. T. at 216-17.
Later, Bruno received a telephone call from Johnson who told Bruno he had been up all night using drugs with a friend and asked Bruno to bring him some beer. T. at 127, 218. Bruno obliged and bought a six-pack of beer which he brought to Johnson's apartment around 1:30 P.M. T. at 128-29, 218. Bruno recalled that Johnson appeared intoxicated, acted "strange," and seemed to be secreting a hypodermic needle in his hand. T. at 128, 198-99, 200. According to Bruno, he set the beer on a table near the kitchen where Johnson and Letizia were sitting and Johnson, for no apparent reason, stabbed Bruno in the chest. T. at 130, 224, 230. Bruno explained in detail the ensuing assault in the course of which he was stabbed more than thirty times.
According to Bruno, Johnson continued to stab him as Bruno moved throughout the apartment from the kitchen, through the living room and into the bedroom. T. at 130-301. In his narration of the attack, Bruno stated that although Johnson did most of the stabbing, Letizia stabbed him twice, once in the leg and once in the stomach, and also hit him on the head with a lead pipe twice. T. at 131-32, 239, 243, 245-46, 250-55, 262-65, 270-71, 286, 298-301.
Bruno also testified that Letizia encouraged Johnson to continue the assault. T. at 131. When Bruno pleaded for Letizia to help him, Letizia allegedly refused and taunted Bruno that Bruno's friend, Billy Burkhardt, was not there to help him. T. 131-32, 286. Bruno was left with no choice but to hug his knees to his chest and roll onto his side in an attempt to avoid having any vital organs stabbed. T. at 132-33, 262. Bruno also kicked Johnson, who appeared intoxicated, several times, knocking him to the floor. T. at 275-76. Eventually, Bruno crawled into a closet in the bedroom where Johnson continued to strike at him with the knife. T. at 133. According to Bruno, Johnson apologized to Bruno, but claimed that he had no choice but to kill Bruno. T. at 133, 278. Meanwhile, Letizia watched the assault from the kitchen where he sat drinking the beer that Bruno had brought. T. at 133-34.
Bruno asked Johnson to refrain from stabbing him as the knife wounds caused quite a bit of pain and Bruno believed he would expire within a minute or two. T. at 134, 279. In response, Johnson asked how it felt to die, and Bruno described the sensation that he felt weak, as if he were floating and about to fade away. T. at 134, 279-81. Bruno turned his head to the side and Johnson informed Letizia that Bruno was dead, and walked over to the kitchen table to drink beer with Letizia. T. at 135, 281, 283-84, 287-88. According to Bruno, Letizia, however, noticed Bruno was still breathing and, thus, was not dead. T. at 135, 292. Bruno also testified that his memory of the assault was somewhat impaired, which he attributed to the loss of blood. T. at 292.
Bruno testified that Johnson and Letizia both approached the closet where Bruno had managed to pull himself up to a kneeling position, Letizia grabbed the knife and attempted to stab Bruno whose arm blocked the strike, slashing across a tatoo on Bruno's arm. T. at 136, 293-95, 297-98. Letizia and Johnson then discussed whether it would be easier to finish off Bruno by slicing off Bruno's several tatoos, or by cutting out Bruno's eyes. T. at 136-37, 300-301. Johnson took the knife from Letizia who walked back toward the kitchen. T. at 137, 301. Johnson, kneeling on Bruno's stomach, raised the knife and attempted to stab Bruno who blocked the hacks with his arms and fingers, sustaining additional cuts. T. at 138-38, 305. Johnson next slashed Bruno across the face and Bruno responded by picking up a small pillow from the floor of the closet, wielding it like a shield against further blows. T. at 138, 303. Johnson, however, slashed through the pillow, informing Bruno that he intended to cut Bruno's throat. T. at 138-39, 305-07. Johnson grabbed Bruno by the hair in an attempt to pull back Bruno's head to expose his throat; however, as Bruno's hair was short and wet with blood, Johnson lost his grip. T. at 139, 307-09. The assault ceased only when Johnson's sister, Cecilia Johnson ("Sissy") unexpectedly arrived and knocked on the door to Johnson's apartment. T. at 139-40, 309, 415.
Upon the arrival of Johnson's sister, Letizia ran out the back door of the apartment. T. at 140, 310-11. Johnson threw down the knife, quickly changed clothes, said good-bye to Bruno and also fled through the back door. T. at 140, 315-17.
Bruno, who lay bleeding on the floor of the bedroom closet, heard Sissy call from the stairwell for Johnson, asking what was going on. T. at 311-12. Bruno called out for help and that he was being murdered. T. at 309, 313-14. Sissy testified that she heard someone crying for help from inside her brother's apartment, ran down the stairs into the restaurant below the apartment, and asked for someone to call the police. T. at 415. While she was speaking on the telephone to the police, Sissy noticed a police car parked across the street from the restaurant. T. at 415. Sissy ran to the police car, informed the police officer of the situation and asked the officer to investigate. T. at 415-16. Sissy then returned to her home to get her husband. T. at 417.
Buffalo Police Lieutenant Thomas Greco testified that at 2:00 P.M. on June 29, 1987, while parked on Hertel Avenue, he was approached by a woman who stated she believed something was wrong in her brother's apartment and asked Officer Greco to investigate. T. at 390-91. Lieutenant Greco and his partner, Officer Henry Wisniewski, kicked in the door to the apartment and found Bruno lying on the floor of a closet in the bedroom with multiple stabbing wounds. T. at 319, 391-92, 396, 736-37. Officer Wisniewski called for an ambulance and Bruno was taken by ambulance to the Erie County Medical Center ("ECMC") in Buffalo, where he was admitted for treatment of his wounds. T. at 319, 392, 404, 738. Lieutenant Greco asked Bruno who had stabbed him and Bruno named "Joe Johnson." T. at 404, 412, 739-40. While en route to the hospital, Bruno gave another statement implicating only Johnson as his attacker. T. at 322. Johnson surrendered to Buffalo Police Officer Louis Gallo shortly after Bruno was removed from the apartment. T. at 463-64.
Records from ECMC indicate that upon Bruno's arrival at ECMC following the assault, Bruno's blood alcohol content was .19%. Exhibit G to Petitioner's Pro Se Memorandum. Dr. George Bernstein testified that he treated Bruno in the emergency room at ECMC. T. at 493. Bruno was in "profound shock" upon his arrival at ECMC's emergency room, characterized by "extremely low" blood pressure, and that the emergency room staff first had to stabilize Bruno before operating on him. T. at 493-94.
It was Dr. Bernstein's opinion that Bruno's injuries were life-threatening. T. at 495-96. However, Bruno's liver was the only major organ lacerated during the attack, T. at 496, and most of Bruno's stab wounds were repaired or sutured at that time. T. at 498. Later that night, Bruno, while in the intensive care unit at ECMC, told his uncle, Barry Mills, that someone had assisted Johnson in the attack. T. at 439-41. Because Bruno was unable to speak, he communicated with his uncle by pointing, blinking his eyes, nodding his head, and slightly moving his hand and shoulder to indicate "yes" or "no" in response to questions Mills put to him. T. at 435-441. To elicit from Bruno the name of the other individual who assaulted him, Mills went through the alphabet one letter at a time and Bruno nodded his head when Mills came to the letters in Letizia's name. T. at 440-41. Mills further testified that the next morning, June 30, 1987, he went to the Buffalo Police Station and informed the police officers on duty that Letizia was also involved in the attack on his nephew, Bruno. T. at 442. Cantwell objected to the admission of this evidence on the basis that it was hearsay not admissible as an exception to the hearsay rule and, as such, served only to bolster Bruno's testimony that Letizia participated in the assault. T. at 443-44. The court, however, overruled the objection on the basis that Mills's testimony was presented only to rehabilitate Bruno's testimony regarding the process by which he informed his uncle that Letizia also participated in the attack. T. at 444-45.
Bruno subsequently had additional surgery in an attempt to repair a severed nerve in his left arm. T. at 501-02. Bruno was released from ECMC on July 9, 1987, but was readmitted on July 28, 1987 complaining of chest pains which were determined to have been caused by an inflammation or fluid around his heart. T. at 502-03. Bruno was discharged on July 30, 1987 and readmitted on August 4, 1987, again complaining of chest pains. T. at 503-04. Medication to reduce inflammation around Bruno's heart was administered and he was discharged on August 14, 1987. T. at 504-05.
A Buffalo Police Department Intra-Departmental Correspondence memorandum prepared by Sergeant Carl A. Lipinczyk on June 30, 1987 ("Buffalo Police Intra-Departmental Memorandum") shows that additional information relative to the stabbing of Bruno, received from Barry Mills, indicated that Letizia was present in the apartment during the attack and urged Johnson to continue. Mills informed the police that Letizia had threatened to kill Bruno in the hospital. Buffalo Police Intra-Departmental Memorandum. Mills further reported that Bruno told him that he left Johnson's apartment to get some beer and when he returned, Letizia was there and Johnson, for no apparent reason, began to stab Letizia. Id. Letizia argued that this statement is inconsistent with Bruno's assertion that following the attack, he was not able to speak. T. at 164.
A copy of this memo is attached as Exhibit E to Petitioner's Response.
According to other testimony presented at trial, additional statements taken by the police indicate that Bruno was with Johnson the night before the stabbing and that the two were using illegal drugs and drinking alcohol. Specifically, Buffalo Police Officer Louis Gallo testified that he interviewed Bruno on July 6, 1987 when Bruno, although no longer in the intensive care unit, remained hospitalized at ECMC. T. at 457. Based on his conversation with Bruno, Officer Gallo typed a statement which he then presented for Bruno's signature. The statement provides:
On [June 29, 1987] in the apartment of Joseph Johnson located at 1234 Hertel Avenue in the City of Buffalo, I was attacked and stabbed numerous times with a butcher knife by a Joseph Johnson and Salvatore [sic] Letizia. Salvatore [sic] Letizia, not only stabbed me many times but he also took a pipe and began to strike me with this pipe. I was drinking all night with Joey Johnson and that morning on the 29th of June, I went out to buy some beer and when I returned, I found Salvatore [sic] Letizia in the apartment with Joey Johnson and they were shooting up Cocaine. When I entered this apartment Johnson began to stab at me and then Letizia began to help him attack me.
Prior to being taken to the hospital, I was assisted by Police Officers, whom [sic] I told that a Joseph Johnson did attack me with a knife in this apartment at 1234 Hertel Avenue, where I was so found.
Supporting Deposition of Bruno, Exhibit B to Petitioner's Response. Bruno testified that although he signed the above statement prepared by Officer Gallo, parts of the statement, including that Letizia stabbed Bruno "many times," that Bruno found Johnson and Letizia shooting up cocaine, and that Bruno had been up all night before the assault, drinking with Johnson, were untrue, but that Officer Gallo instructed Bruno to sign it anyway. T. at 165-69.
Buffalo Police Detective Henry Smardz testified that on June 19, 1987, while assigned to the Evidence Collection Unit, he was summoned to collect evidence and investigate the incident at 1234 Hertel Avenue. T. at 536. Among the items collected as evidence from the apartment were clothing allegedly worn by Bruno during the attack, a length of iron pipe, dry red stains and some brown stains from the bedroom and closet walls, and a serrated butcher knife. T. at 538, 543. The pipe was found on the floor in the living room near the front door to the apartment. T. at 540, 564. The knife was found on the dresser in the bedroom. T. at 542-43. No fingerprints were found on either the lead pipe recovered from the living room or the knife recovered from the dresser in the bedroom. T. at 575. While Bruno testified that he was stabbed and bleeding while in the kitchen, living room and bedroom, Detective Henry testified that blood stains were found only in the bedroom. T. at 570-71. Detective Smardz also testified, while viewing a photograph of the crime scene, that there was a can of beer on top of the television set in the living room. T. at 573.
Buffalo Police Officer Bernard McGonagle testified that in the evening of June 29, 1987, Buffalo Police received a telephone call from someone alleging to be Johnson's brother. T. at 624. The caller informed the police that a quantity of cocaine was hidden inside a television set at Johnson's apartment. T. at 624. Officers McGonagle and John King went to Johnson's apartment to search for the cocaine and, finding no television set, searched the entire apartment for the drugs. T. at 624-25, 633. McGonagle also searched the bedroom closet where he found a "mound of blood soaked clothing." T. at 625. Using a wire hanger, McGonagle picked through the clothing and discovered a knife lying on a sofa cushion inside the closet. T. at 625, 631, 635, 636. While Officer King photographed the closet, McGonagle telephoned Detective John Ludtka who went to the apartment. T. at 625-26; 605. Wearing rubber gloves, Officer Ludtka picked up the knife, placed it in an envelope and brought it to police headquarters. T. at 606-07. Ludka described the knife as a butcher knife with a 6 d inch serrated blade with dried red stains, T. at 610-11, which were later determined by Forensic Chemist John Smith to be human blood, Group O, the same type as Bruno's blood. T. at 640, 643-49. Over Letizia's objection, the knife was admitted into evidence as Exhibit 5. T. at 637-39.
Near the end of Bruno's cross-examination, defense attorney Cantwell brought to the trial court's attention that the defense had not been provided with Bruno's medical records. T. at 384-85. Ms. Vertlieb advised the court that additional records were under subpoena from ECMC. T. at 385. Justice Kubiniec then stated to Cantwell: I indicated to you earlier, either on or off the record, that the records that you do not have in your possession, when they do appear and surface, then I am reserving to you, your right to recall this witness for any examination that you might feel is necessary. T. at 385.
Cantwell responded, "I have no further questions at this time." T. at 385. Vertlieb then conducted re-direct examination of Bruno. T. at 385-89. When she finished, Justice Kubiniec reminded Bruno that he was still under subpoena and that he should make himself available to be recalled as it was likely he would be asked to give further testimony. T. at 389.
The defense did recall Bruno to the stand for additional cross-examination. T. at 787. However, as the additional cross-examination did not pertain to Bruno's medical records, Justice Kubiniec disallowed it. T. at 788. Letizia's objection to the ruling on the basis that he never agreed to such limitation was noted for the record. T. at 788-92.
The day after Letizia was convicted, Johnson pleaded guilty as charged in the Indictment. Johnson was sentenced to a term of incarceration of four to nine years for his involvement in the assault on Bruno.
On April 25, 1988, Ms. Vertlieb wrote a letter to Judge Miriam Shearing of Clark County Court, Nevada, informing that based on Bruno's testimony, both Letizia and Johnson were convicted for participating in a brutal attack on Bruno and that Bruno was "an ideal witness." Vertlieb Letter dated April 25, 1988. Vertlieb concluded that despite Bruno's extensive criminal history and his then probation violation, any possible leniency should be exercised in Bruno's behalf. Id.
A copy of Assistant D.A. Vertlieb's letter of April 25, 1988 to Judge Shearing is attached as Exhibit A to Petitioner's Memorandum.
According to a Probation Violation Report prepared on May 10, 1988 by the Nevada Department of Parole and Probation ("Probation Violation Report"), Bruno surrendered to the Las Vegas Metropolitan Police Department on May 1, 1988 where he was subsequently arrested for violating his probation. After interviewing Bruno at the Clark County Detention Center on May 4, 1988, the Department of Parole and Probation re-affirmed its original recommendation that Bruno remain on probation for a period of five years, expiring on October 10, 1990. Id. However, on July 20, 1988, Bruno was discharged from probation by the Nevada court. Order for General Discharge of Probationer, Exhibit D to Petitioner's Memorandum.
A copy of the Probation Violation Report is attached as Exhibit B to Petitioner's Memorandum.
Meanwhile, Letizia's conviction on the assault, weapon possession and attempted murder charges stemming from the assault against Bruno caused Letizia to withdraw a plea and stand trial on an unrelated incident, charging Letizia with Second Degree Murder, as the trial judge in that case allegedly informed Letizia it would no longer honor the plea arrangement which provided that Letizia be sentenced to five to 15 years in exchange for pleading guilty to that charge. Petitioner's Memorandum at 21-22. Letizia was subsequently convicted of second degree murder and was sentenced to incarceration for twenty-five years to life. Id.
DISCUSSION
1. Overview — Habeas Law
In reviewing habeas petitions, federal courts do not function as appellate courts to review matters within the jurisdiction of the state, or to review rulings and decisions of state trial and appellate courts; rather, the court determines whether the proceedings in the state court amount to a violation of federal constitutional rights. Coleman v. Thompson, 501 U.S. 722, 729 (1991), reh'g denied, 501 U.S. 1277 (1991). Federal review of a state court conviction is limited to errors of federal constitutional magnitude which denied a criminal defendant the right to a fundamentally fair trial. Cupp v. Naughton, 414 U.S. 141 (1973). A state prisoner applying for a writ of habeas corpus under 28 U.S.C. § 2254 is not entitled to an evidentiary hearing by the federal court, but the granting of a hearing is within the discretion of the federal district court. Keeney v. Tamayo-Reyes, 504 U.S. 1, 4-5 (1992) (citing Townsend v. Sain, 372 U.S. 293 (1963)).
The state court's determination, however, is presumed to be correct unless one of the specified conditions pursuant to 28 U.S.C. § 2254(e), formerly 28 U.S.C. § 2254(d), is found to exist or unless the federal habeas court concludes that the relevant state court determination is not fairly supported by the record. Sumner v. Mata, 449 U.S. 539 (1981). Absent these factors, the burden rests on the petitioner to establish, by clear and convincing evidence, that the factual determination is erroneous. Sumner, supra.
Prior to the enactment of the Antiterrorism and Effective Death Penalty Act ("the AEDPA") in 1996, pure questions of law and mixed questions of law and fact for § 2254 petitions were subject to de novo review. Washington v. Schriver, 240 F.3d 101, 110 (2d Cir. 2001). Although Petitioner filed his petition for habeas relief after the effective date of the AEDPA, the court reviews his claims under pre-AEDPA standards in accordance with the Second Circuit's recent instructions. Washington, supra, 240 F.3d at 110. Specifically, in Washington, the court held that where, as here, the state courts did not reference federal law, nor rely upon precedents which in turn cited or applied federal law, the petitioner's federal constitutional due process claims were not "adjudicated on the merits" for purposes of the AEDPA's deferential review. Washington, supra, 240 F.3d at 110. Rather, such claims remain subject to de novo review. Id.
Generally, erroneous evidentiary rulings do not rise to the level of constitutional error sufficient to warrant habeas relief. Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988); Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985); Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983). A "per se" reversal rule applies to "[s]tructural errors [which] are fundamental defects in the trial mechanism that affect the entire framework within which the trial proceeds," thereby "defy[ing] analysis by harmless error standards." Peck v. United States, 106 F.3d 450, 454 (2d Cir. 1997) (citing Arizona v. Fulimante, 499 U.S. 279, 310 (1991), and Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)) (internal quotations omitted). However, erroneous evidentiary rulings are trial errors, rather than structural errors. Lyons v. Johnson, 99 F.3d 499, 502 n. 5 (2d Cir. 1996). This distinction is significant as trial errors are subject to harmless error analysis. Peck, supra, at 454.
To determine whether an error is harmless, the court must examine the totality of the circumstances, including all of the evidence and the jury instructions. United States v. Pimental, 83 F.3d 55, 59 (2d Cir. 1999) (citing cases). Habeas or other collateral relief must be granted if the constitutional violation had a "substantial and injurious effect or influence in determining the jury's verdict." Peck, supra, at 454 (quoting Brecht, supra, at 637). Further, "[o]n collateral review, in determining whether the constitutional error substantially influenced the jury's decision, a reviewing court should grant relief if it is in `grave doubt as to the harmlessness' of a constitutional error." Peck, supra, at 454 (quoting O'Neal v. McAninch, 513 U.S. 432, 445 (1995)).
It is within the court's discretion whether an evidentiary hearing is necessary. Pagan v. Keane, 984 F.2d 61, 63 (2d Cir. 1993). Here, the court is in possession of the state record relevant to Letizia's claims, including the trial transcript and challenged statements. Although on February 8, 1999, Letizia filed a motion requesting the court conduct an evidentiary hearing regarding the merits of his petition, Letizia withdrew that motion on September 28, 1999, and has not renewed it. Nevertheless, the court has reviewed the record to determine whether such a hearing is necessary.
Upon review, the court finds an evidentiary hearing is unnecessary. Specifically, Letizia's petition essentially challenges the veracity of testimony presented by several key witnesses at trial, namely Bruno and his uncle, Barry Mills. Such testimony was the sole evidence that placed Letizia at the scene of the crime. Factual determinations by the jury are, however, presumed correct and, thus, not subject to federal habeas review absent clear and convincing evidence rebutting the presumption of correctness. 28 U.S.C. § 2254(e)(1). Here, no such evidence has been presented as to the evidence that was before the jury. Accordingly, an evidentiary hearing is unnecessary, and the court turns its attention to the merits of the petition.
That nothing in the record rebuts the presumption that the jury's factual determinations were correct insofar as they were based on the evidence before it, thereby negating the need for an evidentiary hearing does not preclude the court from finding that a new trial is warranted if such evidence is found to be factually inadequate to sustain conviction. See Discussion, infra, at 26-39.
In this case, Letizia asserts eight grounds for habeas relief including (1) denial of the Sixth Amendment right to confrontation; (2) violation of the Fifth and Fourteenth Amendment right to exculpatory information when the prosecutor failed to disclose certain evidence; (3) violation of Letizia's Fourteenth Amendment right to present evidence in his own behalf; (4) the prosecution allegedly solicited testimony known to be false; (5) failure to provide Brady material; (6) improper reasonable doubt jury instruction; (7) ineffective assistance of appellate counsel; and (8) ineffective assistance of trial counsel. Petition, ¶ 12. Respondent maintains that some of those grounds should be dismissed as they are not exhausted.
2. Exhaustion
In reviewing a state prisoner's petition pursuant to 28 U.S.C. § 2254, a district court makes an independent determination as to whether the petitioner is in custody in violation of his rights under the Constitution or any laws or treaties of the United States. Coleman, supra, at 729. A state petitioner's federal habeas corpus petition may be dismissed if the petitioner has not exhausted available state remedies as to any of his federal claims, Rose v. Lundy, 455 U.S. 509 (1982). Under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(b)(2), a federal court is now permitted to deny a state prisoner's habeas corpus petition on the merits of the claims for which the prisoner has exhausted available state remedies, even though the petition contains unexhausted claims. Failure to timely exhaust state remedies will result in procedural default of the claims. Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 169-70 (2d Cir. 2000); Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993), cert. denied, 510 U.S. 678 (1994).
For a federal habeas claim to be exhausted, it must be presented to the state appellate court in the same factual and legal context in which it appears in the federal habeas petition. Daye v. Attorney General of the State of New York, 696 F.2d 186, 191 (2d Cir. 1982), cert. denied, 464 U.S. 1048 (1984). In order to be subject to federal collateral review, a habeas claim must be the "same claim" as that raised in the state courts. Velasquez v. Senkowski, 1991 WL 159054 (E.D.N.Y. 1991). To establish that a federal claim was raised in state court, a petitioner must, in the state courts, have relied on federal case law employing federal constitutional analysis; (2) relied on factually similar state cases employing federal constitutional analysis; (3) asserted the claim "in terms so particular as to call to mind a specific right protected by the Constitution"; or (4) alleged a set of facts well within ordinary constitutional litigation. Daye, supra, at 194.
In this case, two of Letizia's eight grounds on which he seeks habeas relief have not been exhausted, i.e., Letizia's First (Sixth Amendment right of confrontation) and Eighth (ineffective assistance of trial counsel) grounds. Although Letizia included his First and Eighth claims for habeas relief in his pro se supplemental brief in connection with his direct appeal to the Appellate Division, such claims were not included in Letizia's application for leave to appeal to the New York Court of Appeals. Accordingly, Letizia's First and Eighth claims are not exhausted.
Moreover, Letizia is precluded from seeking further direct review by the Court of Appeals on his First and Eighth claims and his failure to exhaust such claims on direct review also forecloses him from seeking collateral relief from the New York courts. Strogov v. Attorney General of the State of New York, 191 F.3d 188, 193 (2d Cir. 1999) (citing N.Y. Rules of Court, Court of Appeals, § 500.10(a) (McKinney 1999), and N Y Crim. Proc. Law § 440.10(2)(c) (McKinney 1994)). Accordingly, Letizia has procedurally defaulted on these claims, Washington, supra, 996 F.2d at 1447, and the default "will bar federal habeas review unless [Letizia] can either: (1) show cause for the default and actual prejudice as a result of the constitutional violation, or (2) demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice, or, in other words, an unjust incarceration." Spence, supra, at 170 (citing Coleman, supra, at 750 and Murray v. Carrier, 477 U.S. 478, 496 (1986)) (internal quotation marks omitted). "[I]n an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default." Carrier, supra, at For purposes of testing the availability of federal habeas jurisdiction, "[c]ause" is established by showing "some objective factor external to the defense [which] impeded counsel's efforts to comply with the State's procedural rule." Murray, supra, at 488. Included among such factors are constitutionally ineffective assistance of counsel, interference by government officials rendering compliance with the state procedural rule impracticable, or situations in which the factual and legal basis for the claim was not reasonably available to counsel at the time of default. Murray, supra, *488. "Prejudice" is established by showing that the claimed error worked to [the petitioner's] actual and substantial disadvantage." United States v. Frady, 456 U.S. 152, 170 (1982). A fundamental miscarriage of justice is established by showing that the alleged constitutional violation "has probably resulted in the conviction of one who is actually innocent" of the crime for which he has been convicted. Carrier, supra, at 496.
As discussed below, Letizia's appellate counsel's failure to include in the application for leave to appeal to the Court of Appeals the claim set forth as Letizia's First ground for habeas relief is sufficiently constitutionally significant such that the failure of Letizia's appellate counsel to include it in Letizia's petition for leave to appeal to the Court of Appeals constituted ineffective assistance of appellate counsel.
Discussion, supra, at 26-39. Ineffective assistance of appellate counsel resulting in procedural default of a meritorious claim constitutes "cause" necessary to excuse the procedural default for purposes of habeas review. Coleman v. Thompson, 501 U.S. 722, 753-54 (1991); Restrepo v. Kelly, 178 F.3d 634, 639-40 (2d Cir. 1999). Moreover, where "cause" is demonstrated based on ineffective assistance of counsel, prejudice "`is legally presumed.'" Restrepo, supra, at 641 (quoting in Strickland v. Washington, 466 U.S. 668, 692 (1984)). As such, Letizia has demonstrated cause and prejudice for the court to consider his unexhausted and procedurally barred First claim for relief.
Alternatively, the circumstances relevant to the alleged violation of Letizia's Sixth Amendment right to confront his accuser, here, Bruno, indicate that such violation may have "resulted in the conviction of one who is actually innocent" of the crime for which he has been convicted." Carrier, supra, at 496. Accordingly, the court also considers Letizia's First ground for relief on this basis, despite Letizia's technical default on it.
However, Letizia asserts no grounds for failing to exhaust his Eighth claim in state court. As such, Letizia has failed to demonstrate good cause for the procedural default and the court lacks jurisdiction to consider Letizia's Eighth ground unless Letizia demonstrates that such ground alleges constitutional violations that "ha[ve] probably resulted in the conviction of one who is actually innocent" of the crime for which he has been convicted. Carrier, supra, at 496. The circumstances relevant to the alleged violation of Letizia's Eighth ground alleging violations of his Sixth Amendment right to effective trial counsel, as discussed below, similarly indicate that the failure to address this claim is likely to result in a fundamental miscarriage of justice. As such, a disregard of Letizia's procedural default as to this claim is warranted, and the court considers Letizia's Eighth ground for relief.
3. Merits of the Petition
A. Ground 1 — Sixth Amendment Confrontation Clause
Letizia maintains that he was denied his Sixth Amendment right to confront his accuser when the trial court erroneously restricted his additional cross-examination of Bruno, the only witness for the prosecution who testified that Letizia participated in the stabbing attack. Petition, ¶ 12.A. According to Letizia, by restricting such cross-examination, Letizia was denied the opportunity to develop the testimony establishing that Bruno was motivated to fabricate his claim that Letizia participated in the attack because in exchange for his testimony, Bruno anticipated the prosecutor would assist him in obtaining leniency with regard to his status as a probation violator in Nevada. Petitioner's Pro Se Memorandum at 7-11. Respondent asserts in opposition that this claim, although presented to the Appellate Division, Fourth Department, was not included as a basis for relief in Letizia's application for leave to appeal to the New York Court of Appeals and is, thus unexhausted. Respondent's Memorandum at 5.
Alternatively, Respondent maintains the trial judge acted within his discretion in restricting the additional cross-examination of Bruno to issues relating to medical records with which the prosecution did not provide Letizia until his trial. Respondent's Memorandum at 5-6. As such, Respondent maintains that Justice Kubiniec did not restrict Bruno's cross-examination but, rather, expanded it. Id. at 6. Respondent further asserts that defense counsel later clarified that he recalled Bruno for cross examination as to Bruno's conviction in Nevada of a "savage attack" which was not previously disclosed. Id.
As noted, Respondent asserts, Respondent's Memorandum at 5, although the alleged Sixth Amendment Confrontation Clause violation was raised as a ground for relief in Letizia's direct appeal as of right to the Appellate Division, Fourth Department, it was not included in Letizia's application for leave to appeal to the Court of Appeals. As such, state remedies as to this claim have not been exhausted. Spence, supra, at 169-70; Washington, supra, 996 F.2d at 1447. Nor may Letizia now bring such claim in a § 440 motion (N.Y. Crim. Proc. Law § 440.10) or in a petition for a writ of error coram nobis as his failure to exhaust such claims, which appear on the record, on direct review also forecloses him from seeking collateral relief from the New York courts. Strogov, supra, at 193. Accordingly, Letizia has procedurally defaulted on this claim, Washington, supra, 996 F.2d at 1447, and federal habeas review is unavailable absent a demonstration of (1) cause for the default and actual prejudice as a result of the constitutional violation, or (2) that failure to consider the federal claim will result in a fundamental miscarriage of justice. Spence, supra, at 170.
However, as discussed, supra, Letizia's appellate counsel's failure to include this claim in applying for leave to appeal to the Court of Appeals has resulted in both cause and prejudice sufficient to excuse Letizia's failure to exhaust and procedural bar of this claim. Alternatively, the circumstances of this case, as found in the record, demonstrate that the failure to address this claim is likely to result in a fundamental miscarriage of justice. The court thus disregards Letizia's procedural default and reaches the merits of this claim. Spence, supra, at 170.
The Sixth Amendment Confrontation Clause guarantees the defendant in a criminal prosecution the right to confront the witnesses against him. Henry v. Speckard, 22 F.3d 1209, 1214 (2d Cir. 1994). "The main and essential purpose of confrontation is to secure for the opposition the opportunity of cross-examination." Davis v. Alaska, 415 U.S. 308, 315-16 (1974) (quoting 5 J. Wigmore, Evidence § 1395, p. 123 (3d ed. 1940) (emphasis in Wigmore)); See Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). The Confrontation Clause does not, however, completely prohibit the trial judge from imposing any limitations as to the scope of cross-examination for potential bias or motive, Van Arsdall, supra, at 679, but the court "must allow some cross-examination of a witness to show bias," United States v. Abel, 469 U.S. 45, 50 (1984); accord Olden v. Kentucky, 488 U.S. 227, 231 1988) (per curiam), as a complete bar on examination into bias or motive would impermissibly deny the jury information essential to assessing the witness's reliability. Van Arsdall, supra, at 677.
"The witness's motivation and bias are especially important areas for cross-examination when the witness is the complainant and the sole witness to the acts of which [he] accuses the defendant." Henry, supra, at 1215. Even though the witness may answer motivation or bias-probing questions in the negative, it is within the sole province of the jury to determine whether to believe such answers based on the witness's demeanor in giving them. Id. Further, the trial court's exercise of discretion in restricting cross-examination will be upheld provided the jury has before it sufficient information to make discriminatory appraisal of the witness's possible motives for testifying falsely in favor of the prosecution. United States v. Scotti, 47 F.3d 1237, 1248 (2d Cir. 1995) (citing United States v. Concepcion, 983 F.2d 369, 391-92 (2d Cir. 1992)); see Henry, supra, at 1216 (holding violation of petitioner's Sixth Amendment right of confrontation did not warrant reversing conviction as "the jury had an adequate basis to assess [the witness's] credibility and to draw fair conclusions as to whether or not [the witness] might have fabricated the serious charge she made against [the petitioner] and whether or not the charges were proven beyond a reasonable doubt.").
In the instant case, the only evidence that Letizia was present in Johnson's apartment when Bruno was stabbed was Bruno's testimony. Johnson, who was called as a witness for the defense, invoked his Fifth Amendment privilege and, upon the advice of his attorney, did not give any testimony on the ground that it may incriminate him. T. 715-16. As noted, however, Johnson subsequently pleaded guilty to the same charges and received a significantly lesser sentence than Letizia.
In support of his assertion that he was not present when Bruno was attacked, Letizia submits a portion of the transcript from the colloquy given by Johnson in pleading guilty to attempted murder in connection with Bruno's stabbing in which Johnson admits that he and Bruno were both under the influence of drugs and alcohol when Johnson stabbed Bruno. Petitioner's Exhibit F. As relevant, Johnson stated:
Petitioner's Exhibits are attached to Petitioner's Pro Se Memorandum.
. . . I was drinking for an excessive amount of time, for a period of a day and a half and was under the influence of LSD and cocaine. So was Joe Bruno, even though he said he wasn't. He took LSD and cocaine with me, but he didn't deserve to get what he got. I flipped out. I wasn't in my right mind when I did this and when he came back to the apartment, we were arguing. We had an argument. We were — I picked up a knife and started stabbing Joe Bruno, not knowing what I was doing. When I finally came to my senses for a brief moment, I don't know, God gave me a moment to come to my senses. I don't know how he did but he did. That's when I ran for help. But I never — in my right — I don't know if I had intentions to kill Joe Bruno . . . .
Petitioner's Exhibit F.
Johnson's failure to mention Letizia during the colloquy is consistent with Letizia's assertion that he was not in Johnson's apartment when Bruno was attacked. Unlike Bruno who testified that Letizia encouraged the attack, Johnson blames his use of alcohol and narcotics — cocaine and LSD — as causing him to "flip out" and stab Bruno. Johnson's statement that Bruno was drinking alcohol and using narcotics prior to the attack, and Bruno's supporting deposition prepared by Detective Gallo that Bruno was drinking with Johnson the entire night before the attack, are contrary to Bruno's statement that he was not with Johnson and suggest that some of Bruno's testimony was not true.
Letizia also submits what is purported to be an affidavit prepared by Johnson. Johnson Affidavit, attached as Exhibit M to Petitioner's Memorandum. In his affidavit, Johnson, consistent with statements made at his plea colloquy, states that he and Bruno were drinking and using cocaine and LSD from June 28, 1987 through the late morning of June 29, 1989. Johnson Affidavit, ¶ 8. Johnson also states that Bruno lied when he implicated Letizia in the attack, Johnson Affidavit, ¶ 5, and that Letizia was not even present when the assault took place. Johnson Affidavit, ¶ 14. Johnson explains that he was offered a four to 12 year sentence for Johnson's crimes and that had he testified to such facts, exculpating Letizia, at Letizia's trial, the plea arrangement would have been withdrawn and a harsher sentence imposed. Id., ¶¶ 3-4. Further, contrary to Bruno's testimony that he was first stabbed in the kitchen and eventually made his way through the living room and into the bedroom closet where he was found, Johnson states the assault took place only in the bedroom, Johnson Affidavit, ¶¶ 11-12, which is consistent with the fact that although Bruno lost a significant amount of blood from the stabbing, and many blood stains were found in the bedroom, no other bloodstains were found throughout the apartment other than on clothing lying on the floor in the living room near the front door. Because Letizia was tried before Johnson, such information would not have been available to present to the jury at Letizia's trial, thus demonstrating the importance of a full cross-examination of Bruno as to any possible motive for fabricating his testimony.
The record also indicates that it was brought to the trial court's attention at the March 18, 1988 oral argument on Letizia's motion to sever his trial from co-defendant Johnson that the two defendants intended to present contradicting testimony, to wit: Johnson, if called to testify at a joint trial, would testify that Letizia was not present during the assault, while Letizia would testify that he was present, but that only Johnson stabbed and assaulted Bruno and that such attack was in self-defense. Severance Motion T. at 12, 17-19. This proffer explicitly raised a question as to whether, at the time of the assault, Letizia may have been present at Johnson's apartment, but may not have participated in the assault. As neither Johnson nor Letizia testified, consistent with their Fifth Amendment privileges, Bruno's credibility as the sole evidence against Letizia was critical.
Complete transcripts of the oral argument pertaining to Letizia's motion to sever ("Serverance Motion T.") are included in the state court records provided by Respondent, and are also attached as Exhibit L to Petitioner's Response.
Further, in this case, the record fairly indicates that just before the trial court restricted the cross-examination of Bruno, Cantwell intended to question Bruno about possible motivation for falsely implicating Letizia. Compare Jones v. Berry, 880 F.2d 670, 674 (2d Cir. 1989) (holding harmless error where no indication what defense attorney intended to offer as proof through forbidden line of questioning). Here, upon recalling Bruno for further cross-examination, Cantwell asked, "When you returned from Las Vegas you did so illegally, is that correct?" T. at 788. Prosecutor Vertlieb objected to the question, and the court sustained the objection stating "I am reminding you now on the record in front of the jury that I permitted you to recall this witness for further cross examination as to the medical status of your request, all right?" T. at 788. As such, Bruno never answered the question regarding his probation status in Nevada.
In response to the trial judge's comment, Cantwell insisted that he never agreed to limit the questions put to Bruno upon recalling him stating "I have not cross-examined this witness with regard to his criminal record." T. at 788-89. When Justice Kubiniec remarked that further cross-examination was to be limited to the medical records that were not previously available to the defense, Cantwell asked, "You will not allow me to cross-examine him with regard to his current status?" T. at 789 (emphasis added). Justice Kubiniec stated, "Absolutely. That's the Court's ruling." Id. Cantwell replied that he objected to such ruling and posed no further questions for Bruno, who was then excused. Id.
The exchange between Justice Kubiniec and Cantwell continued off the record, with Cantwell advising:
Your Honor, I was not aware of the Court's stricture on me on any time in the future. My recollection is different from the Court's regarding my ability to recall Mr. Bruno for cross examination. The record would indicate whatever discussion we had that was not my recollection what the Court said out in the courtroom before. In case, Your Honor, abiding by the Court's ruling, there is, since I can't review the medical records and since I can't go into Mr. Bruno's past record and current record, I would like to, however, put on the record that I have information that Mr. Bruno was convicted of a savage attack on an individual in Nevada and that there were witnesses present to that. He was prosecuted for it and convicted and that's the reason for his current want and in the state of Nevada. I have asked Ms. Vertlieb about that. She has indicated to me that she had spoken to Nevada authorities and that information that I have is simply not true. However, I have been told that information again today by Mr. Cacciato who indicated to me he has a very reliable source that says that information is true. Now Miss Vertlieb indicated she personally has spoken to Nevada authorities and made a determination that simply is not true. I have no way of knowing the truth or falsity of it at this point, but I had a good faith basis at least to ask Bruno. In any case, Your Honor, I expected that I would be allowed to cross-examine Mr. Bruno, since I did not do it at the time I was cross examining him, on his past criminal history. To deny me that is a severe detriment to the Defendant in this case and I have noted my objection on the record . . . .
T. at 790-92.
Cantwell's belief that the trial court's earlier reservation of Letizia's right to recall Bruno was not intended to foreclose additional cross-examination of Bruno beyond issues related to Bruno's medical records was reasonable. Justice Kubiniec had stated that he was "reserving to you, your right to recall this witness for any examination that you might feel is necessary." T. at 385 (emphasis added). The fact that such statement came in response to the unavailability of the medical records does not support a finding that Cantwell's failure to pursue cross-examination on other issues amounted to a waiver of Letizia's confrontation rights going to Bruno's credibility status as a parole violator and, possibly, his guilt of other criminal charges in Nevada. Cantwell may well have intended to save the question of Bruno's status as a Nevada probation violator until other issues regarding the records had been explored, something Cantwell could not have considered earlier as the medical records had not been made available to him. Given the importance of Bruno's credibility to the strength of the case against Letizia, a circumstance that should have been obvious to everyone, Cantwell's apparent understanding, that the trial court's use of the word "any" in fully reserving Letizia's cross-examination right meant exactly that, was more than reasonable.
At best, if the trial court intended, in order to avoid undue repetition, to restrict the scope of further cross-examination, its choice of words created manifest ambiguity. The prosecutor's direct examination of Bruno did not clearly put in issue Bruno's status as a probation violator based on his leaving Nevada in the spring of 1987 without first obtaining permission from the court, or the additional charges Bruno faced upon returning to Nevada for violating his probation. Rather, careful analysis of the trial transcript reveals Ms. Vertlieb's direct examination of Bruno obfuscated the fact of Bruno's status as a probation violator, focusing instead on the reasons why Bruno returned to Buffalo without permission and engendering sympathy for Bruno's predicament.
In relevant part, Bruno testified on direct examination as follows:
Q Have you ever been convicted of a crime in the state of Nevada?
A Yes, I have.
Q What crime is that?
A Well, in Nevada it's Grand Theft Auto, Stolen Automobile
* * *
Q You subsequently pled guilty to that?
A Yes, I did.
Q Now, what sentence were you given relative to that particular case?
A I was given five years probation.
Q Did a problem arise with your probation?
A Yes. Well, what happened was the company that I was working for, this carpet cleaning company, I didn't have any money saved or anything. Well, it seemed to me like everything was fine, I guess they were in financial trouble, I didn't know. One day they hit me with, we're going bankrupt, we have to give back the trucks and equipment because we're broke. So, that left me without a job. Now, when that happened everything was due. My car payment was due, my rent was due, I was broke. You know, I didn't have the money to get another apartment or anything so I asked my Probation Officer if I could have a pass, you know, to come home. They either give you a pass for thirty days or transfer your probation. She said they wouldn't transfer my probation because they had transferred me once back to New York. I decided I made the wrong move and had it transferred back. She told me they wouldn't let me yo-yo back and forth. I didn't have anywhere to go. I explained the situation to her. I asked her for a thirty day pass so I could come home and recoup my finances; I had family that owned a few businesses I could go to work at and get another chance. I had to give up my car. She said, no, she said, you know my predicament, how could you tell me no you put my back to the wall. She says, that's too bad, you will have to work it out. I have friends that I am not the kind of person that likes to impose on people, I had to leave any way. When I left, I had just reported, when I left, I was going to stay home for the month and go back to report and report and hope I got away without her knowing. It didn't turn out that way because of what they did.
Q So you had planned to return?
A I had planned to return, yes.
Q But, you were stopped after you were injured?
A Yes, I was going to go back after the 4th of July. That would have been past the month but you could go, see, because you only report once a month, if you miss one month they don't get too mad at you. You could say, again there were times I was there I wouldn't report, I wouldn't report for two months; I would go, she would ask me.
Q It was a little bit negligent?
A Right.
Q Was that a right thing to do?
A I didn't have any choice. I, probably not, because I am in trouble for it now but I, I didn't have any choice at the time.
Q Are you returning to the state of Nevada?
A Yes, I am.
Q When are you going to do that?
A As soon as this is over with. I don't mean today but I mean shortly. I have to have an operation on my arm next Monday to repair the nerve damage that was done when I was stabbed . . . .
T. at 156-59.
In any event, a defendant's need to fully exercise his Sixth Amendment right of confrontation, particularly in a case such as this where the accusing witness's credibility was a critical issue, should not have turned on a question of semantics.
The record thus indicates that Cantwell intended to question Bruno about his probation violation status in Nevada, and Bruno's answers to that line of questioning likely could reasonably have revealed any possible motive for Bruno to falsely implicate Letizia in the assault. At a minimum, the jury could have considered Bruno's credibility based on his having violated his legal obligations in Nevada. Accordingly, the court finds that the trial court's limitation on Letizia's questioning Bruno with regard to a possible motive for fabricating his testimony against Letizia violated Letizia's Sixth Amendment right of confrontation.
Nevertheless, even when a reviewing court concludes that a defendant's Sixth Amendment right to confrontation has been improperly curtailed by the trial judge, automatic voiding of the conviction is not required; rather, the reviewing court should apply harmless-error analysis. Henry, supra, at 1215. More specifically, "[o]n collateral review of a state court conviction, an error of constitutional magnitude is to be considered harmless unless it had a "substantial and injurious effect or influence in undermining the jury's verdict." Id. (internal quotations omitted). An error is harmless if "absent the error, the evidence was sufficient to support the conviction." Id. (citing Moore v. United States, 429 U.S. 20, 22 (1976)). The five factors to be considered in assessing whether the effect of a confrontation error is substantial and injurious or harmless include:
(1) the importance of the witness's testimony, (2) whether that testimony was cumulative, (3) the presence of contradictory evidence on material points, (4) the extent of cross-examination otherwise permitted, and (5) the strength of the evidence against the witness.
Henry, supra, at 1215-16 (citing Van Arsdall, supra, at 658 and Tinsley v. Kuhlmann, 973 F.2d 163, 166 (2d Cir. 1992), cert. denied, 506 U.S. 1081 (1993).
Applying these five factors to the facts of the instant case demonstrates that the error was not harmless. As the only evidence, either direct or circumstantial, placing Letizia at Johnson's apartment at the time of the stabbing, Bruno's testimony was of paramount importance in making a case against Letizia.
The testimony of Barry Mills was admitted only to rehabilitate Bruno's testimony as to the process by which Bruno identified to his uncle the other individual involved in the attack. T. at 444-45.
Nor was such testimony cumulative. Contradictory evidence on material points was sparse and the extent of Bruno's cross-examination otherwise permitted consisted largely of drawing out apparent inconsistencies in Bruno's description of the attack, e.g., Bruno's statement that he was stabbed in the kitchen and living room of Bruno's apartment before the attack moved into the bedroom where the final blows were delivered, T. at 230-83, although detective Smardz testified that blood was found only in the bedroom. T. at 570-71. No reason for Bruno to lie about where the stabbing occurred is readily apparent and such inconsistencies could be attributed to the fact that Bruno was in extremis during the attack. Nor is there any indication that Cantwell's cross-examination of Bruno was excessively lengthy, requiring the court to curtail it in the interest of avoiding unnecessary trial delay. Rather, given that Bruno's testimony was the only evidence linking Letizia to the crime, Cantwell's thorough and extensive cross-examination on the entire scenario was expected. Finally, based on the paucity of evidence placing Letizia at the scene of the stabbing, absent Bruno's testimony, the prosecution's evidence against Letizia was weak, if non-existent.
Under the circumstances, by restricting without justification cross-examination of Bruno, the court prevented bringing to the jury's attention the fact of Bruno's status as a probation violator. Had Bruno's status as a probation violator been more fully developed, the jury may have found it likely, based on Bruno's willingness to engage in unlawful conduct, that Bruno lied about Letizia's involvement in the assault, thereby committing perjury. As such, the jury did not have a complete basis to assess Bruno's credibility so as to draw fair conclusions as to whether Bruno may have fabricated the case against Letizia, thereby creating in the jury's mind a reasonable doubt as to Letizia's guilt. Indeed, the record indicates that the jury requested further instruction of reasonable doubt, T. at 950, and asked for a reread of Bruno's lengthy testimony in which he described the attack. T. at 949. Further, the jury deliberated for a day and a half, being sequestered for one night, before reaching their verdict. T. at 903, 960-65, 979. Combined with the nature of the information sought by the jury based on the testimony requested for readback, the jury's protracted deliberations indicate difficulty in reaching a verdict. Had the excluded line of questioning been permitted, it may have revealed Bruno had a motive to testify as he did. For example, Bruno may have believed that in exchange for his testimony, the prosecution would encourage the Nevada probation board to show leniency with regard to Bruno's probation violation; or Bruno may have believed that if he would face criminal charges in New York for perjury if he admitted falsely implicating Letizia in the attack in his earlier statements. Moreover, evidence obtained by Letizia after his conviction indicates that following Letizia's trial, Assistant District Attorney Vertlieb wrote a letter on Bruno's behalf urging that Bruno be shown leniency with regard to his violation of probation upon his return to Nevada. See Exhibit A to Petitioner's Pro Se Memorandum.
Subsequently, on July 20, 1988, not only did Bruno avoid suffering adverse treatment based on his violation of probation, but Bruno was discharged from his sentence of probation, even though the Nevada Department of Parole and Probation had continued to recommend that Bruno continue to serve the remaining 2 1/2 years of his probation sentence. See Exhibits B and D to Petitioner's Pro Se Memorandum. Although such information does not necessarily indicate the existence of any prior rearrangement whereby the prosecution agreed to intervene on Bruno's behalf with regard to his status as a probation violator in Nevada in exchange for Bruno's testimony, it is relevant to Bruno's belief that by cooperating with the prosecution, he may obtain such a benefit, which could motivate Bruno to give false testimony. However, the trial court's restriction of Letizia's cross-examination prevented the jury from hearing any testimony as a possible motive for Bruno to falsely implicate Letizia. The court therefore finds that such testimony reasonably could have caused a reasonable juror to believe there existed reasonable doubt as to Letizia's culpability.
Respondent's contention that Bruno had no greater incentive to fabricate Petitioner's involvement in return for the District Attorney's assistance regarding his Nevada probation violation than he had in testifying truthfully against Johnson, Respondent's Memorandum at 13-14, Respondent's Reply Memorandum at 5-6, begs the fundamental question. Whether or not the Respondent's argument carries some logical force, such a judgment was exclusively for the jury to make based on a full and robust cross-examination, one that did not occur in this case because of the trial court's unwarranted restriction on the efforts of defense counsel to perform this vital function. On this record, the court finds that Letizia's petition should be granted on the ground that Letizia's Sixth Amendment right to confront his accuser was violated when the trial court impermissibly restricted Letizia's cross-examination of Bruno, the prosecution's primary witness whose testimony was the only evidence presented at trial linking Letizia to the scene of the attack.
Such characterization of the proof was confirmed by the prosecutor in her post trial letter to the Nevada court. See Discussion, infra, at 40-41.
B. Ground 2 — Concealment of Exculpatory Information
Letizia asserts that the prosecutor failed to disclose the fact that Bruno had made a "deal" with the prosecution in exchange for Bruno's testimony and then argued that no such deal existed, in violation of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972). Petition, ¶ 12.B; Respondent's Memorandum at 12. Respondent asserts in opposition that no such deal was made, and that Petitioner's information presented in support of this ground provides no proof that Bruno and the prosecution had come to an earlier agreement or understanding that the prosecutor would, in exchange for Bruno's testimony, assist Bruno with matters pending against him in Nevada. Respondent's Memorandum at 13.
Letizia's argument is based on the April 25, 1988 letter of Assistant District Attorney Yvonne Vertlieb informing Judge Miriam Shearing of Clark County Court, Nevada, that Bruno's testimony at Letizia's trial "was the only evidence to tie a very dangerous individual to the crime," and that based on such testimony, both Letizia and Johnson were convicted for participating in a brutal attack on Bruno. Vertlieb Letter dated April 25, 1988 (emphasis added). Vertlieb states that during trial preparation, "Bruno was courteous, responsible and diligent toward his responsibility as a witness for the state notwithstanding pressure from his peers," and referred to Bruno as "an ideal witness with which to work." Id. Vertlieb continues
A copy of Assistant D.A. Vertlieb's letter of April 25, 1988 to Judge Shearing is attached as Exhibit A to Petitioner's Pro Se Memorandum.
At trial, Mr. Bruno proved to be one of the best witnesses we have ever seen and, based almost exclusively on the strength of his testimony, Defendant Letizia was convicted. . . . In fact, [Bruno] was so impressive that the co-defendant, Joseph W. Johnson, pled guilty as charged on the day after Letizia was convicted by jury.
Id.
Vertlieb acknowledges Bruno's extensive criminal history, yet concluded that she "strongly recommend that any possible leniency be exercised in Mr. Bruno's behalf as it is my opinion that Mr. Bruno has already been severely punished for his past lifestyle and has actively demonstrated a commitment to the laws of society that may have been absent prior to the incident described herein." Id.
According to a Probation Violation Report prepared on May 10, 1988 by the Nevada Department of Parole and Probation ("Probation Violation Report"), Bruno surrendered to the Las Vegas Metropolitan Police Department on May 1, 1988 where he was subsequently arrested for violating his probation. After interviewing Bruno at the Clark County Detention Center on May 4, 1988, the Department of Parole and Probation re-affirmed its original recommendation that Bruno remain on probation for a period of five years, expiring on October 10, 1990. Id. On July 20, 1988, Bruno was nevertheless discharged from probation. Order for General Discharge of Probationer, Exhibit D to Petitioner's Pro Se Memorandum.
A copy of the Probation Violation Report is attached as Exhibit B to Petitioner's Pro Se Memorandum.
Such information does not demonstrate the existence of any "deal" between Bruno and the prosecution whereby in exchange for Bruno's testimony, the District Attorney agreed to assist Bruno in obtaining more lenient treatment from the Nevada Department of Parole and Probation upon returning to Nevada following Letizia's trial. Significantly, all such evidence post-dates Letizia's trial. While, as discussed in connection with Letizia's Sixth Amendment claim, it is possible that Bruno's testimony may have been motivated by his subjective belief that the prosecution would assist him with matters pending against him in Nevada, nothing indicates that the District Attorney specifically offered Bruno any deal in exchange for testimony of any kind or veracity.
Accordingly, Letizia's petition for habeas relief should be DISMISSED on this ground.
C. Ground 3 — Interference with Witnesses
Letizia asserts that the prosecution improperly influenced co-defendant Johnson to invoke his Fifth Amendment right and not testify at Letizia's trial, by offering that if Johnson also pleaded guilty to the charges against him, Johnson would be sentenced to only four to nine years. Petition, ¶ 12.C. Letizia maintains, based on pre-trial preparation, that Johnson's testimony would have exonerated Letizia and that the timing of Johnson's plea was controlled to ensure Johnson fulfilled his terms of the agreement. See T. at 720 (Cantwell arguing at trial that the District Attorney had refused to permit Johnson to take the anticipated plea offer until after Letizia's trial concluded to prevent Johnson from taking the stand and exonerating Letizia). Letizia further argues that because Johnson, had he testified, would have exonerated Letizia, Johnson's failure to testify has prejudiced Letizia, thereby violating Letizia's right to due process. Petitioner's Memorandum at 15. Respondent argues in opposition that as the only evidence submitted in support of this claim is Letizia's conclusory assertions, it is without merit. Respondent's Reply Memorandum at 12. Letizia's claim fails for two reasons.
First, this claim is supported by nothing other than Letizia's bald, conclusory and self-serving statements which are insufficient for granting habeas relief. See Dory v. Commissioner of Correction of the State of New York, 865 F.2d 44, 45 (2d Cir. 1989) (sua sponte summary dismissal of petition for writ of habeas corpus is permitted where allegations are patently frivolous, false, vague, conclusory, or palpably incredible).
Second, even if a deal existed wherein the prosecutor agreed to recommend that Johnson be sentenced to a specific term in exchange for Johnson agreement to plead guilty as charged and to invoke his Fifth Amendment privilege at Letizia's trial, such offer cannot be considered improper influence as the court was not required to sentence Johnson in accordance with that agreement. People v. Schultz, 532 N.E.2d 1274, 1275 (N.Y. 1998) (citing People v. Farrar, 419 N.E.2d 864, 865 (N.Y. 1981) (trial court not bound by sentence recommended by prosecutor in plea agreement; rather, appropriate sentence remains trial court's discretion until time of sentencing)). "While the court legitimately may indicate that a proposed sentence is fair and acceptable, the necessary exercise of discretion cannot be fixed immutably at the time of the plea, for the decision requires information that may be unavailable then." Farrar, supra, at 865.
Accordingly, as the trial court was not required to accept any sentence the prosecution may have agreed to recommend in exchange for Johnson's guilty plea and invocation of his Fifth Amendment right, any such recommendation cannot be considered improper influence.
Letizia's petition should, on this ground, therefore, be DISMISSED.
D. Ground 4 — Knowing Use of Perjured Testimony
Letizia alleges that the prosecutor's knowing use of false evidence and perjured testimony at trial deprived Letizia of due process of law in violation of the Fourteenth Amendment. Petition, ¶ 12.D; Petitioner's Pro Se Memorandum at 20-23; Petitioner's Memorandum at 15-16. Letizia, in particular, challenges as unreliable (1) Bruno's description of the assault which Letizia asserts is factually impossible, (2) Barry Mills's testimony regarding the labored process to which Bruno, who was then unable to speak, resorted to provide Mills with Letizia's name, although the information Mills provided to the Buffalo Police the next morning was much more detailed; and (3) Bruno's testimony that he had neither consumed alcohol nor abused drugs prior to the assault, although evidence in the record, including a toxicology report indicating that Bruno's blood alcohol content was almost twice the limit to be considered legally drunk, suggests otherwise. Petitioner's Pro Se Memorandum at 20-23. Respondent argues in opposition that although the knowing use of perjured testimony is grounds for granting a § 440.10 motion, Letizia's submissions in support of this ground fail to demonstrate that any particular trial testimony was false. Respondent's Memorandum at 13; Respondent's Reply Memorandum at 15.
Letizia's assertions with regard to this claim involve factual determinations for which the jury's resolution, absent clear and convincing evidence to the contrary, are presumed correct and not proper grounds for habeas relief. 28 U.S.C. § 2254(e)(1). Even if such testimony was false, Letizia has failed to present "clear and convincing evidence" to rebut the presumption that the jury's determination was correct. In particular, as to Letizia's claim that Bruno's description of the assault was factually impossible, the record indicates that during cross-examination Cantwell emphasized such inconsistencies. See e.g., T. 188-354, passim. In addition to vehemently objecting to Mills's testimony regarding how he obtained Letizia's name from Bruno, T. at 435-42, Mills's testimony was admitted not for the truth of the matter asserted, but only to rehabilitate Bruno's testimony as to the method by which Bruno provided Mills with the identity of his other assailant. T. at 444-45.
Although the results of Bruno's toxicology report indicate he was legally drunk, Exhibit G to Petitioner's Pro Se Memorandum, Bruno did testify that he was drinking the night before the attack, and that he drank beer while working on his truck shortly before the attack, T. at 174, 205, 210-14, 216-17, which could explain his elevated alcohol level immediately following the assault. The record further indicates that Bruno's blood was not screened for cocaine and no test for LSD was available. Exhibit G to Petitioner's Pro Se Memorandum. As such, Letizia has failed to provide any clear and convincing evidence that the prosecution knowingly presented false testimony when Bruno testified that he was not using drugs the night before, or the morning of the assault.
On this record, none of Letizia's submissions constitute clear and convincing evidence to rebut the jury's resolution of the factual inconsistencies. As such, this ground presents no basis for habeas relief.
C. Ground 5 — Withholding Brady Material
Letizia argues that his Fourteenth Amendment due process rights were violated when the prosecution failed to disclose certain Rosario material which, based on its exculpatory character, also qualified as Brady material. Petition, ¶ 12.E; Petitioner's Pro Se Memorandum at 24-29; Petitioner's Memorandum at 16-17. Letizia specifically objects to the prosecution's failure to provide him with statements Bruno made to the Crime Victim's Compensation Board in which Bruno implicated only Johnson as the perpetrator of the assault. Id. Further, Letizia asserts that although such information was not within the District Attorney's possession or control, under N.Y. Exec. Law § 625, the District Attorney was required to obtain the statement from the Crime Victim's Compensation Board. Petitioner's Pro Se Memorandum at 24-29; Petitioner's Memorandum at 17. Respondent argues in opposition that no Brady violation occurred as the prosecution was not required to turn over the material allegedly withheld from Bruno. Respondent's Reply Memorandum at 6.
People v. Rosario, 173 N.E.2d 881 (N.Y. 1961), requires that upon request the prosecution must provide defendant with all statements made prior to trial by prosecution witnesses for use by defendant on cross examination of such witnesses. Brady v. Maryland, 373 U.S. 83 (1963) requires that upon request the prosecution must provide defendant with all exculpatory evidence that is material either to defendant's guilt or punishment.
Even assuming, without holding, Bruno's statements to the Crime Victim's Compensation Board constituted discoverable Brady material, the prosecution's failure to disclose such evidence to Letizia warrants reversal of his conviction only if there is a reasonable probability that upon such disclosure the results of the trial would have been different. Tinsley, supra, at 166. In other words, an alleged Brady violation is subject to harmless error analysis on habeas review. Id. In this context, a "reasonable probability" means "`a probability sufficient to undermine confidence in the outcome,' one that might make the difference between a verdict of guilt and innocence." Tinsley, supra (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)) (additional internal quotation omitted).
In the instant case, although Letizia was not provided with Bruno's statements to the Crime Victim's Compensation Board prior to trial, the record indicates that such information would have been cumulative as Bruno admitted on direct examination that when the police first inquired as to the identity of his assailant, Bruno named only Johnson. T. at 162-63. Upon further questioning, Bruno explained that he did not also implicate Letizia at first because his physical condition rendered him unable to engage in extended conversation and that Johnson was the only person Bruno recalled seeing at the end of the assault. T. at 163. Additionally, Letizia was provided with the opportunity to procure a copy of the Crime Victim's Compensation Board statement for use in cross-examining Bruno about the apparent inconsistent statements. T. at 100-103. Under these circumstances, the prosecution's failure to provide Letizia with Bruno's statements to the Crime Victim's Compensation Board, assuming, arguendo, such statements qualify as Brady material, was harmless and habeas relief should not be granted on this ground.
D. Ground 6 — Reasonable Doubt Jury Instruction
Letizia challenges the trial court's instruction on reasonable doubt as erroneous as a matter of law and, therefore, prejudicial. Petition, ¶ 12.F; Petitioner's Pro Se Memorandum at 30-37; Petitioner's Memorandum at 18-19. Letizia also assert that the deliberating and alternative jurors were not kept separate and apart, that the jury notes were not read into the record in the presence of counsel, and that Letizia was not present during a material stage of the proceeding, namely, during the first part of the oral argument held on Letizia's motion to sever. Petitioner's Pro Se Memorandum at 32-37.
As to Letizia's claim that the trial court's reasonable doubt jury instruction was erroneous as a matter of law, Letizia contends that the court erroneously gave a "two inference" charge which has been specifically "condemned" by the Second Circuit. Petitioner's Pro Se Memorandum at 30-31; Petitioner's Memorandum at 18-19. While Respondent admits that "standing alone," a two inference charge may so mislead a jury as to the requisite degree of proof needed to convict, in this case, the jury received sufficient instructions as to reasonable doubt such that the charge, as a whole, passes constitutional muster. Respondent's Reply Memorandum at 8; Respondent's Memorandum at 16.
The term "two inference charge" refers to an instruction that if the jury views the evidence in the case as reasonably permitting either one of two conclusions, i.e., either innocence or guilt, the jury should conclude the defendant is innocent. United States v. Khan, 821, F.2d 90, 92 (2d Cir. 1987). The Second Circuit has held that such an instruction by implication suggests that a preponderance of the evidence standard is relevant when it is not. Moreover, the instruction does not go far enough. It instructs the jury on how to decide when the evidence of guilt or innocence is evenly balanced, but says nothing on how to decide when the inference of guilt is stronger than the inference of innocence, but not strong enough to be beyond a reasonable doubt. In a charge that properly instructs the jury on reasonable doubt, the `two inference' language `adds nothing.' Khan, supra, at 93 (quoting SAND, SEIFFERT, LOUGHLIN REISS, MODERN FEDERAL JURY INSTRUCTIONS, ¶ 4.01, at 4-9 (1986)).
The court continued "that the `two-inference' language should not be used because, standing alone, such language may mislead a jury into thinking that the government's burden is somehow less than proof beyond a reasonable doubt." Khan, supra, at 93. Nevertheless, in Khan, the court upheld the defendant's conviction despite the inclusion of "two-inference" language in the jury instructions because the court's charge, taken as a whole, properly instructed the jury on reasonable doubt. Id. In particular, "[t]he judge instructed the jury several times on the meaning of reasonable doubt and specifically told the jury to acquit unless it was `satisfied beyond a reasonable doubt of the defendant's guilt.'" Id. Moreover, that the inclusion of a two-inference charge is not a sine qua non for reversal is evident by the fact that the Second Circuit has upheld other convictions in which such a charge was given. See, e.g., United States v. Inserra, 34 F.3d 83, 91 (2d Cir. 1994) (holding two-inference charge, although improper, did not necessitate reversal of conviction as reasonable doubt instruction as a whole satisfied constitutional standard); United States v. Attanasio, 870 F.2d 809, 818 (2d Cir. 1989) (accord).
Likewise, in the instant case, Justice Kubiniec sufficiently instructed the jury on reasonable doubt, see T. at 920-23, and Letizia does not argue otherwise. Although the jury instructions did contain the notorious "two-inference" language, T. at 923, immediately following that language, Justice Kubiniec instructed that "[y]ou must also acquit the Defendant if after deliberation you find that the evidence in the case is evenly balanced for, in that case the prosecution would not have met the burden imposed upon them by the law which is to convince you beyond a reasonable doubt." T. at 923-24. Under these circumstances, the court finds that the jury charge, as a whole, sufficiently informed the jury as to the prosecution's burden of proof. Accordingly, that the jury instructions included the two-inference language does not warrant granting habeas relief.
Insofar at Letizia maintains that the trial court's failure to instruct that the deliberating and alternative jurors were to be kept separate and apart and not to deliberate during meals, in accordance with N.Y. Crim. Proc. Law § 270.30, Petitioner's Pro Se Memorandum at 32-34, Letizia has not pointed to any case in which such a failure, if it did indeed occur, would arise to a constitutional violation and the court's research has revealed none. It is basic habeas law that even if an error may require reversal under state law, unless such error is of federal constitutional magnitude, it does not warrant federal habeas relief. Coleman, supra, at 729. As such, the petition should be DISMISSED on this ground.
Similarly, Letizia fails to point to any case in which the court's failure to assure the presence of counsel when the jury submits a note requesting certain exhibits amounts to a constitutional violation. The petition should, therefore, be DISMISSED on this ground.
Finally, Letizia's asserts that he was not present during the beginning of the oral argument held on March 18, 1987 on Letizia's motion to sever. Petitioner's Pro Se Memorandum at 35-37. A defendant has the right to be present at his criminal prosecution under both the Sixth Amendment's Confrontation Clause and the Fourteenth Amendment's Due Process Clause. Kentucky v. Stincer, 482 U.S. 730, 736, 745 (1987). Such right may be either expressly or impliedly waived, so long as the waiver is knowingly and voluntarily. Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000); United States v. Rosario, 111 F.3d 293, 299 (2d Cir. 1997).
The primary interest secured by the Sixth Amendment is the right to cross-examine witnesses to ensure the integrity of the fact-finding process. Stincer, supra, at 736 (citing cases). However, fact-finding was not at issue during the oral argument with regard to Letizia's motion to sever. Letizia's absence from a portion of such proceedings thus did not violate the Sixth Amendment Confrontation Clause.
Nevertheless, a defendant has a due process right "`to be present in his own person whenever his presence has a relation, reasonably substantial, to the fulness of his opportunity to defend against the charge,'" even in situations where the defendant is not confronting evidence or witnesses against him. Stincer, supra, at 745 (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-106 (1934)). Due process requires permitting a defendant's presence "`to the extent that a fair and just hearing would be thwarted by his absence,'" although the privilege of such presence in not constitutionally guaranteed "`when presence would be useless, or the benefit but a shadow.'" Stincer, supra, at 745 (quoting Snyder, supra, at 106-108). "[A] defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure." Stincer, supra.
The record in this case indicates that Letizia was later brought into the proceedings and was informed of what transpired during his absence. Severance Motion T. at 15-19. Letizia did not object and, thus, impliedly and knowingly waived his right to be present. Cuoco, supra, at 30; Rosario, supra, at 299. As such, the court finds that Letizia was not deprived of his ability to defend himself against the charges on the basis that he was not present for the entire oral argument on his motion to sever.
E. Ineffective Assistance of Counsel
Letizia seeks habeas relief under the Sixth Amendment on the basis that both his trial counsel and appellate counsel were ineffective. Petition, ¶ 12(G) and (H).
1. Trial Counsel
As a ground for Letizia's ineffective assistance of trial counsel claim, Letizia maintains that Mr. Cantwell failed to impeach Bruno's version of the assault, but acknowledges that the prosecution's failure to provide the defense with Brady material rendered Cantwell unable to properly cross-examine Bruno. Petition, ¶ 12.H. Letizia also maintains that Cantwell failed to provide effective assistance of counsel when he moved to sever Letizia's trial from Johnson as had the two co-defendants been tried together, Johnson would have testified that Letizia was not present during the assault. Petitioner's Pro Se Memorandum at 44. Letizia asserts that Cantwell did nothing to impeach the allegedly false testimony of Bruno or Mills. Id. Finally, Letizia argues that Cantwell was derelict in his duties to investigate and prepare for trial. Id. at 45.
As a preliminary matter, the court observes that this claim, although presented by Letizia in his Pro Se Supplemental Memorandum to the Appellate Division on direct appeal, was not included as a ground for reversal in Letizia's application for leave to appeal to the Court of Appeals and, thus, is unexhausted. Further, as Letizia is now barred from bringing the claim to the Court of Appeals, he has procedurally defaulted on this claim. See Discussion, supra, at 15-16. As such, the court can entertain this claim only if Letizia demonstrates cause and prejudice for the procedural default, which he has not, or that a failure to consider this claim is likely to result in a fundamental miscarriage of justice. Spence, supra, at 170; Washington, supra, 996 F.2d at 1447. A fundamental miscarriage will be found where a claim alleges constitutional a violation that "has probably resulted in the conviction of one who is actually innocent" of the crime for which he has been convicted. Carrier, supra, at 496.
A violation of a defendant's Sixth Amendment right to counsel results in a presumption of prejudice requiring reversal of a conviction. Satterwhite v. Texas, 486 U.S. 249, 256, (1988) (stating in dicta that pervasive denial of counsel casts such doubt on fairness of trial process, that it can never be considered harmless error); Strickland, supra, at 692 ("Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice."); United States v. Cronic, 466 U.S. 648, 659 (1984) ("The presumption that counsel's assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.") (footnote omitted); Chapman v. California, 386 U.S. 18, 23 and n. 8 (1967) (recognizing right to counsel is "so basic to a fair trial that [its] infraction can never be treated as harmless error."). Accordingly, Letizia's assertion that he was denied effective assistance of trial counsel, if true, would constitute a fundamental miscarriage of justice.
As such, the court considers the merits of this claim despite the fact that it was not exhausted as it is procedurally barred from further review.
The validity of a habeas petitioner's ineffective assistance of counsel claim is demonstrated by satisfying both elements of the two-part test as stated in Strickland, supra, at 692; Mayo, supra, at 533. Specifically, a petitioner must demonstrate that "(1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense." Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995) (citing Strickland, supra, at 688, 694). There is 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, at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 100-101 (1955)). As there are "countless ways to provide effective assistance in any given case," consideration of an ineffective assistance of counsel claim requires viewing the reasonableness of the counsel's challenged conduct with respect to the facts of the case as of the time of the counsel's conduct. Strickland, at 689-90.
To prevail on a claim that he was denied effective assistance of trial counsel, Letizia must establish that Cantwell's cross-examination of Bruno does not fall within the wide range of reasonable professional assistance such that the cross-examination qualified as "sound trial strategy." Strickland, supra, at 689. The record in the instant case does not establish the Cantwell's representation of Bruno at trial was so deficient as to be considered ineffective.
First, the court notes that insofar as Cantwell did not cross-examine Bruno as to the statement provided to the Crime Victim's Compensation Board, Letizia has excused such failure on the basis that the prosecution failed to provide the defense with a copy of such statement. Petition, ¶ 12.H. As such, Cantwell's cross-examination of Bruno cannot be said to have fallen outside the range of reasonable professional assistance for failing to question Bruno about the statement.
Nor is there any merit to Letizia's assertion that Cantwell's representation fell below reasonable competence when he successfully moved to sever Letizia's trial from Johnson's trial. Had Letizia and Johnson been tried together, Johnson could have invoked his Fifth Amendment right against self-incrimination and refused to testify, just as he did at Letizia's severed trial. Letizia fails to demonstrate otherwise. Thus, whether Johnson, if called by Letizia as a witness, would have waived the privilege and testified exonerating Letizia is entirely speculative.
Letizia asserts that Cantwell did nothing to impeach the allegedly false testimony of Bruno or Mills. Petitioner's Pro Se Memorandum at 44-47. However, as discussed, supra, the court has found that Justice Kubiniec committed constitutional error when he ruled that upon recalling Bruno for further cross-examination, Cantwell was restricted to inquiring only as to Bruno's medical records. Discussion, supra, at 38-40. Justice Kubiniec's statement did not specify such a restriction, and indeed on its face, reasonably created the impression no restriction was intended. In other words, Cantwell cannot be faulted for the fact that he was not allowed to pursue certain lines of questioning, including questions designed to elicit a possible motive for Bruno to falsely implicate Letizia in the assault. Nor can Cantwell be faulted for not perceiving the risk that the trial court may have intended to restrict cross-examination of Bruno to the then missing records, thus prompting Cantwell to seek an explicit clarification or to pursue the questioning directed to Bruno's motive to falsify or exaggerate Letizia's involvement in the assault. The record indicates that Cantwell did otherwise vigorously cross-examine Bruno in such a way as to emphasize apparent inconsistencies in Bruno's testimony. See T. 188-354, passim. Likewise, Cantwell vehemently objected to Mills's testimony, and the jury was instructed that they were to consider such testimony only insofar as it was offered to support Bruno's explanation as to how he communicated with his uncle the identity of the second assailant. T. at 444-45.
Letizia's assertion that Cantwell was derelict in his duties to investigate and prepare for trial, Petitioner's Pro Se Memorandum at 45, is supported only by Letizia's conclusory assertions which, as discussed, are an insufficient basis on which to grant habeas relief. Dory, supra, at 45. Significantly, Letizia has not proffered an affidavit from any witness (other than Johnson, an issue previously discussed) he believes should have been called to testify in which the affiant explains testimony that he would have given which would have exonerated Letizia.
Nor is there any merit to Letizia's assertion that Cantwell should have called as defense witnesses Letizia's ex-wife Carmela Ponticello, his daughter Kelly Letizia and his friend Mike Lietzau. See Affirmations of Carmela Ponticello, Kelly Letizia and Mike Lietzau, attached to Letizia's Addendum filed June 7, 1999 (Docket Item No. 43). Although Letizia's ex-wife and daughter both state that Letizia was home between the hours of 8:00 A.M. and 9:00 A.M. on June 29, 1987, and that Letizia watched Kelly while Carmela took their son to the beach, neither Carmela nor Kelly states at what time Carmela returned. The statements also beg the question of Kelly's capacity to make such a statement given that she was, as of June 29, 1987, too young to be left alone. Furthermore, Mike Lietzau provides no basis for his statement that "[i]t is my understanding, which I believe to be true, Mr. Letizia did not participate in the attack of Mr. Bruno. It was a fight between Mr. Johnson and Mr. Bruno which occurred many times between them when they were drinking alcohol. It appears that this fight got out of control." Nor does such statement have any relevance as to Letizia's whereabouts when Bruno was stabbed.
On this record, the court finds Letizia's petition for habeas relief based on ineffective assistance of trial counsel should be DISMISSED.
2. Appellate Counsel
Letizia maintains he was denied effective assistance of appellate counsel when his appellate counsel failed to raise as a ground on direct appeal that the second knife, discovered in the bedroom closet of Johnson's apartment, was improperly admitted into evidence. Petition, ¶ 12.F. "[T]he right to effective assistance of counsel is not confined to trial, but extends also to the first appeal as of right." Evitts v. Lucey, 469 U.S. 387 (1985). A claim for ineffective assistance of appellate counsel is evaluated upon the same standard as is a claim of ineffective assistance of trial counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (citing Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912 (1993)); Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990). The validity of a habeas petitioner's ineffective assistance of counsel claim is demonstrated by satisfying both elements of the two-part test as stated in Strickland v. Washington, 466 U.S. 668 (1984). Mayo, supra, at 533. Specifically, a petitioner must demonstrate that "(1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense." Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995) (citing Strickland, supra, at 688, 694)).
Appellate counsel's performance will not be found objectively unreasonable, however, merely because every nonfrivolous argument was not advanced. Mayo, supra, at 533. Instead, appellate counsel is expected to focus on key issues and "winnow out weaker arguments." Jones v. Barnes, 463 U.S. 745, 751 (1983). Appellate counsel's performance may be found constitutionally inadequate upon demonstration that significant and obvious issues were ignored while weaker arguments were pursued. Mayo, supra. Further, the degree of prejudice required by Strickland will be met upon a showing by the petitioner that absent appellate counsel's deficient representation, there is a reasonable probability that the outcome of an appeal to the state's highest court would have been different. Mayo, supra, at 534 (citing Claudio, supra, at 803).
Many courts, including the Supreme Court, have interpreted Strickland as permitting alleged state court violations, ordinarily required to be raised on direct appeal to the state courts to be preserved for federal habeas review, to be admitted for such review through the "back door" in the context of a claimed denial of effective assistance of appellate counsel. Kimmelman v. Morrison, 477 U.S. 365, 378 (1986) (permitting Fourth Amendment issue to be evaluated on habeas review as a Sixth Amendment claim based on appellate counsel's failure to appeal trial court's denial of motion to suppress); Holman v. Page, 95 F.3d 481, 482-83 (7th Cir. 1996) (same); Bunkley, supra, at 1522 (reviewing in the guise of an ineffective assistance of appellate counsel claim asserted in habeas petition allegation that appellate counsel failed to raise on direct appeal to the state court that jury was improperly instructed on how to apply state law circumstantial evidence rule); Durrive v. United States, 4 F.3d 548, 550 (7th Cir. 1993) (observing that in limited circumstances an alleged violation of Fed.R.Crim.P. 32 requiring defendant be provided with copy of presentence report may be subject to federal habeas review in the context of an ineffective assistance of counsel claim). See also Chestaro v. United States, 17 F. Supp.2d 242, 244 (S.D.N.Y. 1998) (denying habeas relief on the basis that the claim that defense counsel failed to challenge elements listed in the indictment was not raised on direct appeal and could not subsequently be admitted through the back door clothed as an ineffective assistance of counsel claim failed to meet Strickland's requirements because of the novelty of issue). As Letizia's ineffective assistance of trial counsel claim was not presented on direct appeal to the Appellate Division, the court considers it in the context of Letizia's ineffective assistance of appellate counsel claim based on trial counsel's failure to assert these same issues at trial.
In the instant case, the issue on which Letizia's ineffective assistance of appellate counsel claim is predicated, i.e., the trial court's admission of a second knife, for which the chain of custody was not sufficiently established, ordinarily does not merit habeas relief. Rosario, supra, at 925; Collins, supra, at 18; Taylor, supra, at 891. To prevail on a claim for habeas relief based on an evidentiary error, the petitioner must show that such error was so pervasive as to deny him a fundamentally fair trial. Collins, supra, at 18. Where, as here, it is claimed that evidence was erroneously admitted, it must be shown that such evidence, viewed objectively and in light of the entire record before the jury, was sufficiently material as to provide a basis for conviction or to remove reasonable doubt which, but for such evidence, would not have existed. Id. As such, Letizia's claim of ineffective assistance of appellate counsel for failing to assert on appeal that the second knife was erroneously admitted into evidence is without merit absent a finding that such claim has merit and meets the requirements of Strickland — that counsel's performance was deficient and that such deficiency prejudiced Letizia's defense. Strickland, supra, at 694.
The record in the instant case does not establish that the admission of the second knife into evidence, even if erroneous, denied Letizia a fundamentally fair trial. The police did not discover the knife in question during the initial investigation. Rather, Buffalo Police Officer Bernard McGonagle testified that in the evening of June 29, 1987, Buffalo Police received a telephone call from someone alleging to be Johnson's brother. T. at 624. The caller informed the police that a quantity of cocaine was hidden inside a television set at Johnson's apartment. T. at 624. Officers McGonagle and John King went to Johnson's apartment to search for the cocaine and, finding no television set, searched the entire apartment for the drugs. T. at 624-25, 633. McGonagle also searched the bedroom closet where he found a "mound of blood soaked clothing." T. 625. Using a wire hanger, McGonagle picked through the clothing and discovered a knife laying on a sofa cushion. T. at 625, 631, 635, 636. While Officer King photographed the closet, McGonagle telephoned Detective John Ludtka who went to the apartment. T. at 625-26; 605. Wearing rubber gloves, Officer Ludtka picked up the knife, placed it in an envelope and brought it to police headquarters. T. 606-07. Ludtka described the knife as a butcher knife with a 6d inch serrated blade with dried red stains, T. at 610-11, which were later determined by Forensic Chemist John Smith to be human blood, Group O, the same type as Bruno's blood. T. 640, 643-49. Over Letizia's objection, the knife was admitted into evidence as Exhibit 5. T. at 637-39.
Letizia objects to the admission of the second knife on the basis that it was found hours after the initial search and the chain of custody was not sufficiently established, thereby raising a question as to whether it was tampered with. Petitioner's Pro Se Memorandum at 38-39. Letizia maintains that inconsistencies among the other evidence at trial indicates the opportunity existed for tampering with or planting evidence. Id. at 40, 41. Particularly, Letizia points to the fact that Detective Henry Smardz, who was dispatched to Johnson's apartment following the assault to collect evidence pertaining to the crime, T. at 536-37, testified that he collected one knife at the scene, described as a serrated butcher knife, which was found on the dresser in the bedroom. T. at 538, 542-43. Detective Daniel DiPirro testified that there was thick, wet blood on the floor of the bedroom closet, yet DiPirro did not find a knife in the closet. T. at 598-600. Although the crime occurred on June 29, 1987, Detective Smardz was unable to explain why the date June 27, 1987 was both written on the evidence slip issued for the second knife and inscribed on the knife's handle. T. 611. Detective Smardz also testified that a photograph of the crime scene taken during the initial investigation of the crime showed a television set in the living room, with a can of beer on top of it. T. at 573. According to Detective Ludtka, however, there was no television set in the apartment upon his arrival around 7:00 P.M.
Certain pages of the trial transcript containing the rest of Detective Smardz's direct examination and the beginning of his cross-examination are missing.
Although these inconsistencies may demonstrate that evidence in the apartment was tampered with, such inconsistencies bear on the evidentiary weight the jury accords the knife, rather than on its admissibility into evidence. Further, the first knife, which Detective Smardz recovered from the bedroom dresser during the initial search, had little evidentiary value. In particular, no fingerprints or blood was found on that knife, T. at 575, and Bruno's testimony that Johnson and Letizia passed the knife back and forth, T. at 300, suggests that only one knife was used in the attack against him. Moreover, that the second knife was found in the bedroom closet, where Bruno testified Johnson sat on him while attempting to slit Bruno's throat, has no direct bearing on Letizia's involvement.
On this record, the court finds that the admission of the second knife into evidence, even if erroneous, was not sufficiently material as to provide a basis for conviction or to remove reasonable doubt which, but for such evidence, would not have existed. As such, the failure of Letizia's appellate counsel to raise the admission of the second knife into evidence as a ground for appeal does not demonstrate that Letizia was denied effective assistance of appellate counsel and such claim is not a basis for federal habeas relief.
4. Bail Request
Letizia seeks to be released on bail pending the court's decision on the instant petition. "In a habeas corpus proceeding following a state court conviction, a federal court has discretionary authority to grant bail." Ketchum v. Ward, 391 F. Supp. 332, 334 (W.D.N.Y. 1975) (citing cases). However, in exercising its discretion, the court, "in the absence of exceptional circumstances . . . will not grant bail prior to the ultimate final decision unless the petitioner presents not merely a clear case on the law, but a clear, and readily evident, case on the facts." Ketchum, surpa, at 335 (citing Benson v. California, 328 F.2d 159 (9th Cir. 1964)).
Although the undersigned has found Letizia's Sixth Amendment claim meritorious, given that this finding is in the form of a recommendation to the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B), the court finds it should not exercise its discretion to grant bail until the recommendation may be accepted by the District Judge. Moreover, Letizia's request to be released on bail pending final resolution of his habeas petition is moot inasmuch as Letizia's request pertains not only to his conviction with regard to the assault on Bruno, but also with respect to his subsequent conviction of second degree murder in an unrelated matter.
Letizia's second conviction is the subject of another habeas corpus petition pending in this court, i.e., Case No. 97-CV-333E(F). In that action, Letizia maintains that his subsequent murder conviction, in an unrelated case, was a product of his unlawful arrest and conviction in connection with the stabbing of Bruno. Petitioner's Memorandum at 21. According to Letizia, the prosecution used Letizia's arrest in the Bruno matter to undo the plea agreement in the murder case that had been reached in that case. Id. The plea agreement provided that the court would sentence Letizia to incarceration for a period of five to fifteen years. Id. According to Letizia, the prosecution was dissatisfied with the plea arrangement and seized upon the Bruno matter as an opportunity to have Letizia arrested and prosecuted. Id. On the basis of the arrest, the court in the murder case indicated it would no longer honor the plea arrangement, causing Letizia to withdraw his plea and stand trial on the second degree murder charge for which, upon his conviction, Letizia was sentenced to incarceration for 25 years to life. Id. In short, Letizia maintains that a vacating of his conviction in the instant case would likely result in a vacatur of his subsequent conviction as it was procured by the prosecutor's alleged misconduct. Id. at 22.
However, at this court has not rendered any determination on Letizia's petition attacking the homicide conviction, it is premature and speculative to find that such claims have merit. Thus, even if the District Judge accepts the court's recommendation that the writ requested by the instant petition be granted on Letizia's Sixth Amendment claim, Letizia would remain incarcerated on the murder conviction thereby rendering the granting of bail in this case futile and moot.
Accordingly, Letizia's request for release pending final decision on the instant petition is DENIED.
CONCLUSION
For the foregoing reasons, Petitioner's motion for reargument and reconsideration of the court's order denying him bail (Docket Item No. 31) should be DENIED in part and the petition should be GRANTED in part and DISMISSED in part. Further, as the court finds there is no substantial question presented for appellate review of Petitioner's Second through Eighth grounds, a certificate of appealability should not issue as to those claims. 28 U.S.C. § 2253 (1996).
SO ORDERED as to Letizia's request for bail pending final decision on the instant petition.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of receipt of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988). Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Petitioner and the Respondent.
SO ORDERED.