Opinion
00 CV 5214 (ARR)
April 10, 2003
Kevin Casey, Elizabeth Sack Felber, Criminal Appeals Bureau, Legal Aid Society, Brooklyn, NY., Attorneys for Petitioner.
Camille O'Hara Gillespie, Office of the Kings County District Attorney, Renaissance Plaza, Brooklyn, NY., Attorneys for Respondent.
OPINION AND ORDER
By petition filed August 29, 2000, petitioner Giovanni Bell seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons explained herein, the petition is denied.
BACKGROUND
At approximately 1 a.m. on August 17, 1997, Richard Dennis entered an adult video store on Atlantic Avenue in Brooklyn and ordered the store clerk, at gunpoint, to lie down on the floor. The clerk, Vajira Paranayaba. heard footsteps. and caught a glimpse of a second person, who was wearing a black sleeveless jacket and black pants. The second person, later identified as petitioner, tapped Paranayaba with a baseball bat as he was lying on the floor. Dennis, who was wearing a red shirt, then ordered Paranayaba to open the cash register and to retrieve the money from the video booths; Dennis also took Paranayaba's watch and wallet.
Soon after the crime began, New York City Police Officers Richard Gong and Ronald Johnson heard reports of a robbery in progress and entered the store. Upon their arrival, the officers saw two men, the brothers Braulin and Bernard James, leaving the store carrying x-rated videotapes, stereo and telephonic equipment, magazines, and other store merchandise. The officers ordered the Jameses to lie down, which they did.
At that moment. Dennis, who was running from the back of the store carrying a gun and a plastic bag, turned around and ran toward the video booths. Officer Gong followed Dennis and apprehended him outside a video booth, where Gong also found cash, a Radio Shack walkie-talkie. and Dennis's gun. In Braulin James's car, which was parked outside the store, police later found a matching walkie-talkie, jewelry, and an air pistol.
In another video booth, the police found Paranayaba, who had been ordered to remain there by one of the robbers. The police apprehended two other men by the booths: an unidentified individual, who was permitted to leave after being identified as a customer by Paranayaba, and petitioner. Officer Gong brought Paranayaba to the front of the store, where he identified Dennis and petitioner as perpetrators. The officers arrested Dennis and petitioner, as well as Bernard and Braulin James.
A grand jury indicted Dennis and petitioner for several crimes, including second-degree robbery. but returned no charges against either of the James brothers, who were thus dismissed from the case. Dennis pleaded guilty to second-degree robbery. but petitioner pleaded not guilty and went to trial.
During jury selection, petitioner's lawyer renewed an earlier request for the arrest photographs of the James brothers. Defense counsel stressed the importance of the photographs to the issue of identification. and argued that if one of the James brothers were wearing clothing similar to petitioner's, it would be a "major issue". Trial Transcript ("Tr.") at 143. The prosecutor stated that he was attempting to obtain the photographs from the Police Department, and that he had prepared unsealing orders for the photographs because the charges against the Jameses had been dismissed. Also because of the dismissal, however, the prosecutor was uncertain whether the photographs still remained in the police computer system. He stated that his office had received mixed signals on this issue from the police. The prosecutor agreed that the photographs were important to the case, asserting that he planned to state in his opening that petitioner was the only one of the arrestees wearing dark clothing. If it turned that one of the James brothers had similar clothing, he noted, "it would be the kiss of death." Tr. at 145.
The following morning, the prosecutor informed the court that efforts to obtain the photographs from the police computer remained unsuccessful, but that his office had "attempted to subpoena [the New York City Department of] Correction records for each of the four individuals who were arrested." Tr. at 158. Although no photographs had been produced, the prosecutor stated that "[i]n what we received" were petitioner's phone and visitation records. Id. Because the phone records indicated that petitioner had been in contact with one of the Jameses, the prosecutor stated his intention to introduce these records in his direct case. Defense counsel objected. and the court ruled that the prosecution could only use the records on petitioner's cross-examination, in the event he testified. As for the photos, the court stated that if they were not produced by noon that day, "the People w[ould] bear the weight of that." Tr. at 159. Nevertheless, the court stated that it would not delay the start of the trial. The photos were not produced by noon, and the trial went forward as planned.
At trial, Paranayaba testified that on the night of the incident, after police had brought petitioner and Dennis to the front of the store, he had identified petitioner as the man in black standing over him with a baseball bat. Paranayaba testified that he had been able to identify petitioner by his height, his clothing, and his voice, although on cross-examination he conceded that he did not remember telling police that he recognized petitioner's voice. Paranayaba also testified that petitioner was the only person in the store wearing black.
In addition to Dennis and petitioner, Paranayaba testified that he viewed four other individuals in the store with the police: the unidentified customer in the video booth; a man with a mustache, whom the police also released after Paranayaba said he recognized him from previous visits to the store; a man lying down on the floor, whom Paranayaba recalled as wearing a light-colored t-shirt and grey or ash-colored pants; and another man, whom Paranayaba could only describe as shorter than. but otherwise resembling "a little bit," the man on the floor. Tr. at 468.
Both arresting police officers testified that petitioner was wearing black pants and a black shirt (Officer Johnson described the top as a sweatshirt-type sweater with an open collar). Two of petitioner's arrest photos. which indicated that he was wearing a black shirt, were admitted into evidence. Officer Gong testified that petitioner was the only person in the store wearing black. Gong testified that Bernard James had a white T-shirt; Officer Johnson described the shirt as light-colored. As for Braulin James, Officer Gong described his shirt as "lightish-color like a green," Tr. at 341; Officer Johnson also testified that he was wearing a light-colored T-shirt. Officer Johnson testified that Braulin James was 6'1"; Bernard James. 5'9"; and petitioner, 6'5". Paranayaba, who is 5'11", testified that the man with the baseball bat was much taller than him — approximately five inches so.
Prior the court's charge to the jury, defense counsel reminded the court that he had never been provided with the James brothers' arrest photos. The prosecutor stated that the photographs had been expunged from the Police Department computer system. The court accepted this representation based on the fact that the charges against the Jameses had been dismissed.
On the second day of its deliberations, the jury reported that it was deadlocked. After the court instructed the jury, in essence, to keep trying, the jury requested, inter alia, that it be read the portions of the trial testimony addressing what the James brothers were wearing. When the jury later indicated that it remained deadlocked, the judge proposed that petitioner waive his right to a jury trial and designate the judge as the trier of fact. In exchange, the judge indicated that he would render a verdict finding petitioner guilty of attempted robbery in the third degree and acquitting him of all of the other charges pending before the jury. Petitioner accepted, and the judge returned the verdict as indicated. Several weeks later, on May 27, 1998, the court sentenced petitioner to a prison term of one and a half to three years.
On July 7, 1998, petitioner filed a pro se motion to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10, arguing that the People put on false testimony and that the indictment was defective. Petitioner also claimed that evidence that would have proved his innocence was never produced by the prosecution. The trial court denied this motion on October 14, 1998.
On October 26, 1998, the Appellate Division granted petitioner's motion for assigned counsel on appeal. On December 9, 1999, the trial court, pursuant to a request of petitioner's appellate counsel, Laura Boyd of the Legal Aid Society, signed a subpoena directing the New York City Department of Correction "DOC") to provide any documents, photographs, or other materials in its possession relating to the arrest of Braulin James. Among the materials obtained were a Police Department Prisoner Movement Slip containing a black-and-white photograph of James, who appears to be wearing a dark shirt, and a DOC form indicating that when James was received by the department, he was wearing a green shirt and black pants.
On February 14, 2000, petitioner's appellate counsel filed a § 440.10 motion with the trial court, seeking to vacate petitioner's conviction on the grounds that (1) the prosecution's failure to disclose the photograph and the DOC intake form violated petitioner's rights underBrady v. Maryland, 373 U.S. 83 (1963); (2) trial counsel's failure to obtain the photograph and DOC form deprived petitioner of effective assistance of counsel; and (3) the DOC materials constituted newly discovered evidence excusing petitioner's failure to raise the Brady claim in his first § 440.10 motion. The People opposed petitioner'sBrady and ineffective assistance of counsel claims on the merits, but did not argue that they had been procedurally forfeited.
The trial court denied the motion on two procedural grounds, which it raised sua sponte. First, the court held that "nondisclosure of the photograph" was preserved on the trial record, and therefore could only be raised on direct appellate review. People v. Bell, Ind. No. 8857-97 (N.Y.Sup.Ct., Kings Co. Apr. 26, 2000) (Memorandum Opinion) ("Tr. Ct. Op."), at 10. Second, the court found the claims barred by C.P.L. § 440.10(3)(c), which provides that a trial court may deny a motion to vacate if, in a previous motion, "defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so." Id. at 8. Without directly addressing the fact that the photograph had been obtained only after the first motion, the court stated, "At the time defendant filed his previous motion to vacate judgment he knew that his attorney had made repeated requests for the [arrest] photograph of Braulin James but was compelled to try the case without viewing the photograph." Id.
The court went on to hold, in the alternative, that the Brady claim lacked merit. The court found that the photographs could not be deemed to be within the control of the prosecution or police, having been obtained from the DOC files. The court cited New York caselaw holding that the DOC and the New York State Department of Correctional Services are not law enforcement agencies and thus not under the direction of the prosecution or police. The court also reviewed and found meritless petitioner's claim of ineffective assistance of counsel.
On August 9, 2000, the Appellate Division, Second Department, denied leave to appeal from the trial court's order. On August 29, 2000, petitioner filed a pro se petition for a wirt of habeas corpus from this court. The petition claimed violations of Brady and of petitioner's right to effective assistance of counsel. Petitioner noted that his direct appeal had not been perfected.
On November 17, 2000, petitioner's appellate counsel perfected defendant's direct's appeal of his conviction to the Second Department. In her submissions, counsel argued, inter alia, that the prosecution had failed to disclose Brady material and that petitioner's trial counsel was ineffective for failing to obtain this material. By motion dated February 14, 2001, appellate counsel sought to enlarge the record on appeal to include, inter alia, the Prisoner Movement Slip with the photograph of Braulin James and the DOC form containing a description of his clothing. The Appellate Division denied this motion on April 9, 2001.
By opinion and order dated October 1, 2001, the Appellate Division affirmed petitioner's conviction, finding that the verdict was based on legally sufficient evidence and was not against the weight of the evidence. People v. Bell, 287 A.D.2d 460, 460, 730 N.Y.S.2d 883, 883 (2d Dep't 2001). The Appellate Division did not reach the merits of petitioner's Brady and ineffective assistance claims, stating that it had already denied leave to appeal the trial court's denial of petitioner's of § 440.10 motion. which addressed these claims. Id.
Petitioner sought leave to appeal the Appellate Division's decision, which the Court of Appeals denied by order dated January 10, 2002. See People v. Bell, 97 N.Y.2d 701, 701, 739 N.Y.S.2d 101, 101 (2002).
On February 7, 2002, this court granted the request of the Legal Aid Society to represent Mr. Bell in connection with the instant proceedings, and permitted counsel to file a supplemental brief on his behalf. The supplemental memorandum, filed by Elizabeth Sack Felber on March 26, 2002, addresses petitioner's Brady and ineffective assistance claims and also argues that the Brady claim is not procedurally barred from review by this court. Respondent filed a supplemental brief on April 27, 2002, arguing that the Brady claim is procedurally barred and, in any event, along with the ineffective assistance claim, meritless. Petitioner filed a reply on May 7, 2002.
Upon reviewing the parties' submissions, including the state court transcript, the court concluded that the record was undeveloped regarding Braulin James's Prisoner Movement Slip, which contained the black-and-white photograph of James wearing an apparently dark shirt. Specifically, the court was unable to determine whether, assuming the movement slip constituted material and exculpatory evidence, the prosecution or the police could be charged with knowledge of its existence. Because a serious Brady issue would arise if this were the case, the court exercised its discretion and ordered an evidentiary hearing. See Dey v. Scully, 952 F. Supp. 957, 964 (E.D.N.Y. 1997).
At the hearing, which was held on January 22 and 23, 2003, the following witnesses testified: Chester Dabzitzki, the director of the New York City Police Department Photographic Unit; Detective (former Officer) Ronald Johnson, one of the arresting officers; Timothy Gough, the Assistant District Attorney ("ADA") who tried the case against petitioner; Laura Boyd, the Legal Aid attorney who represented petitioner in connection with his second § 440.10 motion and his direct appeal; Martin Gorfinkel, a supervising attorney in the Criminal Defense Division of the Legal Aid Society; Edward Kosoff, an administrator at the DOC's Management Information Services; Balinda Harris, a DOC correction officer, who filled out the DOC pedigree form found in Braulin James's DOC file; and Leon Schrage, petitioner's trial counsel. Based on the witnesses testimony and the exhibits introduced into evidence, the court makes the following findings of fact.
When petitioner, Dennis, and the James brothers were arrested on August 17, 1997, Officers Gong and Johnson took them to the 88th Precinct. There, Officer Johnson "processed" the defendants, which entailed filling out a variety of forms, including an on-line booking sheet and a complaint report. The on-line booking sheet, so called because it was entered into a networked computer, contained information about the defendants and the charges against them. Officer Johnson was also responsible for creating a movement slip, which would accompany the defendants from the precinct to the arrest processing facility, or Central Booking. Central Booking is located in the Kings County Criminal Court building at 120 Schermerhorn Street. Each defendant's movement slip contained identifying information about the defendant; stapled to the slip was a small Polaroid photo, taken by Officer Johnson, showing the defendant's face. This movement slip is not the same thing as the Prisoner Movement Slip, such as the one for Braulin James, that was later created at Central Booking. However, it served a similar function, which was to ensure that officers transported the correct individual to another point in the system. In Officer Johnson's experience, the Polaroid photos generated at the precinct were never returned to the officer who escorted the prisoner to Central Booking, and he was unaware of what happened to them after Central Booking received the prisoner. Chester Dabzitzki, the director of the photographic Unit, stated that he doubted that these photographs were retained for use in "mug-books."
Although Officer Johnson sometimes accompanied arrestees to Central Booking, he did not do so in this case. Rather, another officer escorted the defendants to Central Booking, where a new movement slip, the Prisoner Movement Slip, was generated for each. Thus, although Johnson had seen Prisoner Movement Slips before, he had not seen that of Braulin James before the hearing in this case.
When a defendant arrived at Central Booking, a police photographer took color photographs of his head, viewed from the front and the side, which were saved as computer files. The Prisoner Movement Slip contained an image, usually in black and white, of the frontal photograph, as well as information drawn from the on-line booking sheet. A Prisoner Movement Slip was generated as a matter of course for everyone who arrived at Central Booking. After generating the slip, the photographer would give it to the accompanying officer to verify that the photograph and the data on the form corresponded to the prisoner. The purpose of the Prisoner Movement Slip was administrative, not investigative or evidentiary. As stated by Dabzitzki, "It was for administrative purposes so that the individuals working in court would be able to look at a picture and know who was coming out of the cell or who they were talking to." (Hearing Transcript ("Hrg.") at 23.)
By contrast, a hard copy of the mugshot pedigree form, such as the one for petitioner (Pet. Ex. 2). was not automatically printed out for each prisoner. Rather, this form, which contains color versions of both photographs taken at Central Booking. was printed out only upon request to the Photographic Unit.
If an individual was released at 120 Schermerhorn, the slip was shredded or otherwise destroyed. If the individual was taken to the Department of Correction after his court appearance, the Prisoner Movement Slip would follow him there. Dabzitzki testified that according to state statute, whenever a case is dismissed, the court sends notice of the dismissal to a state agency in Albany, which in turn electronically transmits this information to the New York City Police Department's "Force Field" computer system. Upon receiving this transmission, the police computer automatically destroys the photographs stored in its system (i.e., the photographs, described above, taken at Central Booking). Although this process is sometimes referred to as "sealing" the photographs. Dabzitzki testified that this term is somewhat of a misnomer insofar as it implies that the photographs can be retrieved. According to Dabzitzki (whose testimony on this point, and in the entirety, the court finds credible), they cannot. Once "sealed" the photographs are permanently irretrievable, and an order to unseal a photograph would be no more feasible than an order to "undestroy" a photograph. Hrg. at 36. Dabzitzki testified that this computer system was relatively new at the time of petitioner's arrest, and that during this "transition period" it is possible that glitches in the system could have caused a photograph that should have been sealed to remain unsealed.
Pursuant to statute, see N.Y.C.P.L. § 160.50(1)(b). When the Police Department received notice that a case has been sealed, it notified any outside persons or agencies that had received copies of the defendant's photographs, and instructed them to destroy the photograph and to send confirmation to the police that they had done so. Dabzitzki indicated that such notifications were not sent to the Department of Correction with respect to the Prisoner Movement Slip, which, as mentioned, contains a copy of the defendant's arrest photograph. Dabzitzki testified that the DOC "should destroy the picture" when notified to release the prisoner, but stated that he did not know if DOC had any procedure in place to ensue that the picture was in fact destroyed. Dabzitzki testified that his understanding of the law is that the Department of Correction was under the same duty as the Police Department to destroy any sealed photographs. However, as Dabzitzki and several other witnesses testified, the Department of Correction was (and remains) an independent city agency not under the control of the Police Department. For this reason, Dabzitzki testified, the Police Department did not take any steps to ensure that the DOG complied with the statutory mandate.
It is not entirely clear from Dabzitzki's testimony why the Police Department did not (and apparently still does not) treat the photograph on the Prisoner Movement Slip as subject to the duty of retrieval that the sealing statute imposes on the Police Department.
In fact, the statute appears to impose a duty to destroy such photographs only on agencies that receive direct notification of the termination of the case, namely, "the division of criminal justice services . . . and any Police Department or law enforcement agency having any such photograph." N.Y.C.P.L. § 160.50(1)(a). Thus, it would appear that the DOC, which is seemingly not a "law enforcement agency," would be under no obligation to destroy such a photograph, except insofar as an obligation may be created by the Police Department's "formal request." if any, that the DOC destroy the photograph. N.Y.C.P.L. § 160.50(1)(b). Nevertheless, even if Dabzitzki is incorrect about the DOC's legal duty to destroy the Prisoner Movement Slip (which is a possible explanation for why the slip was not destroyed in Braulin James's case), the more significant fact is the Police Department's abdication of responsibility for the Prisoner Movement Slips once they went to the DOG. and its assumption, at least in the case of Dabzitzki, that the DOG destroyed the slips.
ADA Gough took over petitioner's case shortly before trial. In the file he inherited from the two ADAs who had handled the case before him, there were mugshot pedigree forms of Dennis and petitioner. but no such forms or other photographs of the James brothers. Gough was aware of defense counsel's request for the arrest photographs of the James brothers. and realized that the photographs were important to the case at a pretrial hearing at which it became apparent that the defense strategy would be to "point the finger" at the James brothers. Gough stated that he himself wanted to obtain the photographs, which he believed would be "determinative to establish that [the James brothers] were not wearing either a black shirt or black pants." Hrg. at 86.
Gough testified that an unsealing order had been signed. although he did not remember seeing it, and that at least initially he believed that this would be sufficient to obtain the photographs. This belief was based on the information that his paralegal. Tracy Meisel, had received from the police. However, Meisel began to receive mixed signals from the police about the availability of the photographs, and was ultimately informed that the photographs had been removed from the system.
When one of Gough's supervisors informed him that there might be a one inch-by-one inch photograph of each of the James brothers in their respective DOC files, he directed Meisel to use whatever means necessary to obtain the photographs. He believed he told her to subpoena the photographs, but he also testified that he was not sure if any subpoena was actually issued. Gough did not recall his specific conversations with Meisel regarding her efforts to secure the photographs, nor did he recall the reason why the photographs were never produced. Gough recalled only that the "bottom line" was that his office could not obtain the photographs. Hrg. at 88. The trial folder for petitioner's case. which Gough reviewed prior to the hearing. was missing the "prep folder" that the ADA ordinarily maintains to document its discovery efforts.
At the time of petitioner's case. Gough had never seen a DOG file, nor had he seen a Prisoner Movement Slip. However, Gough testified that his paralegal regularly obtained telephone and visitation records from the DOG, either by subpoena or by telephone call. He testified that she had done so overnight on occasion. Edward Kosoff, a DOC employee responsible for such records, confirmed that the District Attorney's Office could quickly obtain these records, and stated that a subpoena from the DA's Office did not need to be signed by a judge. Any other agency or individual requesting the same records had to obtain a judicially signed subpoena.
Balinda Harris, a corrections officer for the DOC, credibly explained what certain materials found in Braulin James's DOC file were. Form ARC 239M is a DOC pedigree form. Pet. Ex. 4. The form, which is filled out at 120 Schermerhorn just after the defendant's arraignment, is used to record personal information about an inmate so that corrections officers can ensure they are transporting the correct inmate from 120 Schermerhorn to the DOC facility, in this case the Brooklyn House of Detention. The form records the inmate's height and weight, as well as a description of his clothing. On James's form, which Harris filled out after his arraignment at 120 Schermerhorn, Harris described his clothing as follows: "green t-shirt, black pants, black baseball cap, black gray sneakers." Pet. Ex. 4. A color photograph of each inmate, such as the one of Braulin James that was in his file. Pet. Ex. 5 (admitted in enlarged form), is taken upon arrival at the House of Detention. As for the Prisoner Movement Slip created by the police. Harris testified that she receives this at 120 Schermerhorn along with the inmate's court papers. and uses it to verify that she has the correct individual.
Martin Gorfinkel of the Legal Aid Society testified that in cases where identification is an issue, his office sometimes obtains the ARC 239M pedigree forms from the Department of Correction. He conceded that the document is not obtained through the District Attorney's ice, stating that it can only be obtained by a judicially ordered subpoena. He could not recall if he personally had ever admitted such a document into evidence.
Laura Boyd, petitioner's counsel on appeal and on his § 440.10 motion in state court, testified that she subpoenaed Braulin James's DOG file after speaking to his Leon Schrage. his trial counsel. She testified that Schrage told her "he had been a prosecutor prior to becoming a defense attorney and [that] copies of [the] arrestees' photographs would have been put on a movement slip that would have gone with them when they went into the Department of Correction's custody." Hrg. at 103. Schrage himself testified that he may have told Boyd that the DOG file might contain a movement slip, but that he definitely did not tell her that he knew about such movement slips from his experience as a prosecutor. Schrage testified that he did not learn about Prisoner Movement Slips until he entered private practice. The court credits the testimony of Schrage and not that of Ms. Boyd on this point. More importantly, the court credits the testimony of Schrage that he did not know about Prisoner Movement Slips when he was working for the Brooklyn District Attorney's Office. The court notes that ADA Gough also credibly testified that at the time of petitioner's case, he had never heard of Prisoner Movement Slips.
Boyd's testimony established that the prisoner movement slip, the ARC 239M pedigree form. and the color photograph of Braulin James were in the DOC file she subpoenaed. She testified that a deputy counsel at DOG told her that such files could only be obtained by subpoena. and that if another party had subpoenaed Braulin James's file, a copy of the subpoena would be in the file. She further testified that no other subpoena but her own was in the DOG file she obtained. The court credits this testimony, as well as Schrage's testimony that he would have relied on ADA Gough's representation that he had attempted to subpoena photographs and descriptions from Braulin James's DOC file.
DISCUSSION
I. Procedural Default
The trial court denied petitioner's second § 440.10 motion on two state law procedural grounds. Respondent here relies only on the bar based on § 440.10(c)(3) of New York Criminal Procedural Law. Under this provision, a trial court may deny a § 440.10 motion when "[u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so." N.Y.C.P.L. § 440.10(3)(c). The trial court found that defendant could have raised the Brady claim in his first motion because at the time of that motion "he knew that his attorney had made repeated requests for the [arrest] photograph of Braulin James but was compelled to try the case without viewing the photograph." Tr. Ct. Op. at 8.
Respondent does not rely on the additional procedural bar invoked by the trial court, namely, its finding that "non-disclosure of the photograph" was preserved in the trial record, and thus was an issue properly raised on direct appeal instead of on a motion to vacate the judgment. Tr. Ct. Op. at 6-7 (citing N.Y.C.P.L § 440.10(2)(b)). Respondent's nonreliance on this clearly erroneous decision is well-advised. While some discussion of James's arrest photograph appears on the trial record, the photograph itself, and hence its potential significance as Brady material, were decidedly not part of the record on appeal. Indeed, the Appellate Division later denied petitioner's motion to enlarge the record to contain this material.
A. General Standard
Ordinarily, a state procedural bar constitutes an adequate and independent state ground for a state court's decision, blocking habeas review in the federal courts. See Coleman v. Thompson, 501 U.S. 722, 735 (1991). The mere invocation of a procedural bar does not, however, automatically preclude review in this court. Indeed, a federal court's "responsibility to ensure that the state rule is `adequate' obligates [this court] to examine the basis for and application of state law."Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).
The Second Circuit has explained that a state court's finding of procedural default constitutes an "adequate" ground only "if there is a `fair and substantial' basis in state law for the state court's determination." Id. at 78. The procedural rule must be "strictly or regularly followed." Wedra v. Lefevre, 988 F.2d 334, 339 (2d Cir. 1993) (citing Johnson v. Mississippi, 486 U.S. 578, 587 (1988)). "[O]nly a `firmly established and regularly followed state practice' may be interposed by a State to prevent subsequent review" of a federal constitutional claim in federal court. Ford v. Georgia, 498, U.S. 411, 423-34 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348-51 (1984)). States may not apply novel procedural rules to avoid federal claims, see NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457-58 (1958) (holding that a novel state procedural requirement will not thwart federal review when the affected party had no notice of the rule), and must treat similar claims evenhandedly. See Hathorn v. Lovorn, 457 U.S. 255, 263 (1982); Andrews v. Deland, 943 F.2d 1162, 1190 (10th Cir. 1991). A reading of the cases also reveals that a procedural default will be deemed to have a "fair and substantial basis" in state law only if it serves a legitimate state interest. See Smart v. Scully, 787 F.2d 816, 820 (2d Cir. 1986) (deeming a state procedural bar inadequate because the state had no substantial or legitimate interest in its application);Silverstein v. Henderson, 706 F.2d 361, 367 n. 11 (2d Cir. 1983) (noting that a procedural default that is either unsupported or manipulative would not be an adequate state around); cf. Wainwright v. Sykes, 433 U.S. 72, 88-90 (1977) (finding Florida's contemporaneous objection rule to be an adequate state ground based on the important state interests it serves).
In analyzing whether a state procedural default has a fair and substantial basis in state law, then, the court considers whether litigants had notice of it, whether it is consistently applied in similar circumstances, and whether its application serves legitimate state interests.
B. The Adequacy of the Procedural Bar Invoked in Petitioner's Case
Petitioner does not contend that N.Y.C.P.L § 440.10(3)(c) is itself novel or that he did not have notice of it, as was the case inPatterson, 357 U.S. at 457-58. Instead, petitioner argues, as did the petitioner in Garcia, that this rule was misapplied in his case, and that its invocation was not the evenhanded application of a procedural bar required by Hathorn, 457 U.S. at 263. Petitioner argues that the trial court's determination that he was in an adequate position to raise hisBrady claim earlier ignored the fact that at the time of his initial, pro se motion, petitioner reasonably relied on the prosecutor's representations on the record that the DOC file could not be obtained. Thus, petitioner argues, the trial court misapplied the procedural rule by failing to find "good cause" for petitioner's failure to raise the Brady claim in his first motion. C.P.L. § 440.10(3). Alternatively, petitioner claims that because § 440.10(3)(c) is in part a discretionary provision, it is by definition not consistently applied.
Were this court deciding petitioner's § 440.10 motion de novo, it might well find that good cause existed and hear the merits of Brady claim in the interest of justice. As is discussed below, this court finds reasonable petitioner's reliance on the statements of the prosecutor that he had attempted to subpoena the DOG and had not retrieved any photographs. However, this court's review is limited to a determination of whether the trial court's invocation of C.P.L. § 440.10(3)(c) as a procedural bar was without a fair and substantial basis in state law. See Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002) ("The relevant question is not whether the state court was right or wrong in its decision, but rather whether its holding had a fair or substantial basis in state law."). Petitioner has not met this standard.
As for the adequacy of § 440.10(3)(c) generally, petitioner does not cite a single federal opinion questioning the adequacy of this provision as a procedural bar to habeas review. By contrast, respondent cites several federal opinions upholding the adequacy of § 440.10(c)(3) as a state procedural bar See, e.g., Rosario v. Bennett, No. 01 Civ. 7142 (RMB)(AJP), 2002 WL 31852827, at *21 (S.D.N.Y. Dec. 20, 2002) (Rep. Rec.) ("[D]istrict courts in this Circuit have consistently held that C.P.L. § 440.10(3)(c) constitutes an adequate and independent state ground barring habeas review.") (collecting cases),adopted, 2003 WL 151988 (S.D.N.Y. Jan. 21, 2003); see also id. ("the rule that § 440 courts may dismiss claims not raised in prior § 440 motions — is a `firmly established and regularly followed' rule" under New York law) (collecting state cases). More importantly, petitioner does not cite to, nor is this court aware of, any New York case declining to apply the § 440.10(3)(c) bar in circumstances similar to those of petitioner's case. See id. "The question, however, is not only whether New York `generally' applies § 440.10(3)(c), but whether the rule has been applied evenhandedly to all claims similar to [petitioner]'s claim."). Without such a showing, this court cannot conclude that the trial court's opinion did not have a fair and substantial basis in New York law. Accordingly, this claim has been defaulted pursuant to an adequate and independent state law.
Petitioner's other arguments as to why the state procedural bar is inadequate are meritless.
A procedural default in the state court will bar federal habeas review unless "the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see also Ylst v. Nunnemaker, 501 U.S. 797, 801 (1991).
Here, petitioner argues that even if the court finds his Brady claim defaulted under state law, the court should reach the merits of this claim because he has shown cause for the default. Petitioner asserts that he reasonably relied on the prosecution's statements on the record that Braulin James's arrest photographs had been destroyed or were otherwise unavailable
In Strickler v. Greene, 527 U.S. 263 1999) the Supreme Court found cause for the petitioner's failure to raise his Brady claim in state court where exculpatory documents were not disclosed, the petitioner reasonably relied on the prosecution's open file policy as fulfilling its duty to disclose exculpatory evidence, and the prosecution asserted during the petitioner's habeas proceedings that the defense had been "given full disclosure of everything known to the government." Id. at 287-88. Under the circumstances, the Court concluded, the petitioner had no reason to believe that he had not received all potential Brady material. See id. at 284-77; see also Jamison v. Collins, 291 F.3d 380, 388 (6th Cir. 2002) (citation omitted) (finding cause where prosecution had "affirmatively represented to the defense that no favorable evidence existed").
The court finds that petitioner has established cause for failing to raise the Brady issue in his first § 440.10 motion. At the time of the motion, petitioner had no reason to believe that the DOC file contained his arrest photo or other relevant evidence. There had been several colloquies on the record concerning the photograph, culminating in the prosecutor's ultimate statement, credited by the court, that the arrest photographs had been destroyed after the dismissal of James's case. The nonproduction of the photographs followed an earlier statement by the prosecutor that he had attempted to subpoena the DOC file. Furthermore, after representing that he had subpoenaed the DOG. the prosecutor stated that "[i]n what we received" were petitioner's phone and visitation records. This statement further supports the inference that the phone and visitation records were all that were contained in the DOG file.
If the District Attorney's Office had subpoenaed the DOG and come up empty-handed. it was certainly reasonable for petitioner, a pro se inmate, to assume either that no such photographs existed or that any subpoena he sent would meet with no greater success. At the hearing in this case, petitioner's trial counsel testified that he relied on the prosecutor's statement that he had sent a subpoena. Indeed, in opposing petitioner's ineffective assistance of counsel claim, which is based on counsel's failure to obtain the photographs, respondent persuasively argues that it was reasonable for Schrage to assume that efforts to locate photographs in the DOG file would have proved fruitless:
[D]efense counsel's failure to obtain the arrest photo of Braulin James was not unreasonable because the prosecutor, who also did not possess the photograph. had previously attempted, without success, to obtain that photograph from the Department of Correction. Even if defense counsel suspected that a copy of the arrest photograph for Braulin James might be within Department of Correction files, that would not have appeared a likely prospect, in light of the failure of the Department of Correction to supply such a photograph at the prosecutor's request. Nor could defense counsel reasonably have claimed that he was entitled to comb through the Department of Correction flies in search of other unknown material. . . . Although the Braulin James' [sic] photograph was in the Department of Correction file when the Department later furnished its file on consent to the post-conviction court. this does not mean that trial counsel's earlier failure to duplicate the prosecutor's efforts to obtain the photograph from the Department of Correction was either unreasonable or unprofessional.
Resp. Suppl. Mem. at 37. The court wholeheartedly agrees with this statement, and is thus unpersuaded by respondent's argument that Bell himself knew or should have known that his DOG file contained photographs simply because he knew from his own arrest experience that "photographs were taken." Resp. Post-Hrg. Mem. at 37.
The court is also unpersuaded by respondent's argument that Strickler is inapplicable because the prosecution in this case was under no duty to investigate the records of the Department of Correction, which was not acting as an arm of the prosecution: in Strickler, the alleged Brady material consisted of documents found in police and prosecution files. Respondent's argument goes to the merits of petitioner's Brady claim — specifically, to the issue of whether the prosecution "suppressed" the evidence in question. This question is distinct from the "cause" inquiry, which focuses more broadly on whether "some objective factor external to the defense" prevented petitioner from complying with the state procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986);see also Cummins v. Artuz, 237 F. Supp.2d 475, 485 (S.D.N.Y. 2002) ("These factors include: (1) interference by government officials making compliance impracticable; (2) situations in which the factual or legal basis for a claim was not reasonably available to counsel; and 3) ineffective assistance of counsel.") (citing Murray, 477 U.S. at 488;Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994)). Irrespective of whether he has established a Brady violation, petitioner was not reasonably in a position even to raise this claim at the time of his first § 440.10 motion. As explained, the court finds that petitioner reasonably relied the prosecution's representations that it had attempted without success to subpoena the photograph from the DOG, and that the photograph had otherwise been expunged from law enforcement records. Accordingly, petitioner has established cause for the default of hisBrady claim pursuant to N.Y.C.P.L. § 440.10(3)(c).
The court also finds that petitioner has established actual prejudice from the nondisclosure of the Prisoner Movement Slip. "In Brady cases, procedural default prejudice analysis parallels materiality analysis underBrady." Jamison, 291 F.3d at 388 (citing Strickler, 527 U.S. at 282). Under Brady, "evidence is material `if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Strickler, 527 U.S. at 280 (quoting United States v. Bagley, 473 U.S. 667, 676 (1985)). The Supreme Court has elaborated on this standard as follows:
The other two elements of a Brady violation are that the evidence be favorable to the accused and that it be suppressed by the prosecution. See Strickler, 527 U.S. at 281-82. The Brady standard is addressed more fully in the court's discussion of the merits, infra. In addition, for purposes of the "prejudice" analysis. as well as for the "favorable" analysis, the court will assume that the ARC 239M pedigree form and the color photograph taken at the DOG also satisfy these standards.
[The] touchstone of materiality is a reasonable probability of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A reasonable probability of a different result is accordingly shown when the government's evidentiary suppression undermines confidence in the outcome of the trial.Kyles v. Whitley, 514 U.S. 419, 434 (1995) (citations and internal quotation marks omitted).
The Prisoner Movement Slip meets this test. It is clear from the trial record that the clothing of those present at the crime scene was a central issue in the case. The complaining witness's identification of petitioner was based almost entirely on his clothing and his height. Both this witness and one of the arresting officers testified that petitioner was the only one in the store wearing black, a fact emphasized by the prosecutor during his closing argument. The arresting officers both testified to the clothing worn by petitioner and by Braulin James, and both indicated that James was wearing a light-colored shirt. The black-and-white photograph on the movement slip, which shows Braulin James wearing a dark shirt, would surely have been a powerful tool for cross-examining the officers as well as the complaining witness. In fact, the court need not speculate as to whether the jury would have considered important the clothing worn by James — after deadlocking, the jury expressly asked for the trial testimony on this issue. Given that the jury was still not able to reach a conclusion even after hearing this testimony, the court cannot say with confidence that the black-and-white photograph of James would not have swayed the outcome. On the contrary, there is certainly a "reasonable probability" that the jury might unanimously have found a reasonable doubt as to petitioner's guilt had it been able to view this photograph.
Having shown the movement slip's materiality under Brady, petitioner has thus established "prejudice" resulting from his default of this claim in state court. Accordingly, the court will address the merits of this claim.
II. The Merits of Petitioner's Claims
A. General Standard for Granting Habeas Relief
Although it found petitioner's Brady claim procedurally barred, the trial court also addressed the merits of this claim. Accordingly, this court's review of this claims is governed by the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA"), which prohibits a federal court from granting a writ of habeas corpus unless (1) the adjudication of a claim on the merits in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d)(1)-(2).
The Supreme Court, in Williams v. Taylor, 529 U.S. 362. 404-5 (2000), indicated that the "contrary to" and "unreasonable application" clauses of Section 2254(d)(1) have independent meanings. A state court decision will be determined to be "contrary to" clearly established federal law where the state court "applies a rule that contradicts the governing law set forth in [Supreme Court] cases" or if the state court "confronts a set of facts that are materially indistinguishable" from those considered by the Supreme Court, but nevertheless reaches a decision contrary to the Court's clearly established precedent. Id. at 405-6; see also Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000). Under the "unreasonable application" prong of Section 2254(d)(1), a state court decision will be set aside if it unreasonably applies the correct governing legal rule to the particular facts of the case. See Williams, 529 U.S. at 407, 409.
In examining the state court's application of federal law, the appropriate inquiry is whether the decision was objectively unreasonable, not merely whether it was erroneous. See id. at 410. However, while "[s]ome increment of incorrectness beyond error is required [.] . . . [that] increment need not be great: otherwise habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Durant v. Strack, 151 F. Supp.2d 226, 231 (E.D.N.Y. 2001 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
B. Petitioner's Brady Claim
"There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State. either willfully or inadvertently; and prejudice must have ensued." Stickler. 527 U.S. at 281-82.
In rejecting petitioner's claim on the merits, the trial court noted that the "photograph at issue was not in the files of the district attorney, nor of the Police Department, but was eventually subpoenaed, by the defense, from the Department of Correctional Services." Tr. Ct. Op. at 10. Because that agency had no duty to share information with the District Attorney, and because its function was essentially administrative, not prosecutorial, the court held, "the People had no obligation to attempt to locate and gain possession of the material for the purpose of turning them [sic] over to the defense." Id. In support of its conclusion, the court cited New York caselaw holding that evidence held by the state and city correctional departments, as well as other state agencies, was not under the control and possession of the prosecution and thus was not Brady material.
In fact, the subpoena was obtained from the New York City Department of Correction, not the state Department of Correctional Services. The court's error, however, is immaterial, as its analysis applies equally to both agencies.
Petitioner argues that this decision violated Brady for three reasons: the prosecution must be charged with the police officers' knowledge of what the four defendants were wearing the night of the arrest; the prosecution had constructive knowledge of the arrest photograph and of the Prisoner Movement Slip; and the prosecution had constructive knowledge of the DOG pedigree form and color photograph maintained in Braulin James's DOG file.
It is clear that the Prisoner Movement Slip is "favorable" evidence insofar as it could have been used to impeach the several witnesses who testified about petitioner's and Braulin James's clothing. Moreover, as discussed above, the evidence satisfies the materiality, or prejudice. standard. Resolution of the case thus turns on whether the prosecution "suppressed" this evidence. or rather, whether the trial court's negative answer to this question constituted an unreasonable application of clearly established Supreme Court precedent, or an unreasonable determination of the facts in light of the record before it.
As mentioned, the court also assumes that the pedigree form and color photograph satisfy the "favorable" standard. In light of the court's holding on the "suppression" element of petitioner's claim, it is unnecessary to make a definitive ruling on this issue.
The prosecution "suppresses" material exculpatory evidence in violation of Brady when it has possession or knowledge of such evidence but fails to disclose it to the defense. See Kyles, 514 U.S. at 431, see also,e.g., U.S. v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) ("To the extent that the prosecutor knows of material evidence favorable to the defendant in a criminal prosecution, the government has a due process obligation to disclose that evidence to the defendant."). The prosecution is deemed to have constructive knowledge of "evidence `known only to police investigators and not to the prosecutor.'" Strickler, 527 U.S. at 280-81 (quoting Kyles, 514 U.S. at 437). "In order to comply with Brady, therefore, `the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in this case. including the police.'" Id. (quoting Kyles, 514 U.S. at 437).
In the recent case of Chandras v. McGinnis, No. 01 Civ. 2519 (LBS), 2002 WL 3lZ46711, at **7-9 (E.D.N.Y. Nov. 13, 2002). Judge Sand conducted a thorough review of the caselaw exploring the boundaries of the government's knowledge and control for Brady purposes. Summarizing this aspect of the law, Judge Sand stated. "Although the prosecutor's general duty is clear, the exact point at which government agents can fairly be categorized as acting on behalf of the prosecution, thus requiring the prosecutor to seek out any exculpatory or impeachment evidence their possession, is uncertain." Id. at *7; see also Shakur v. United States, 32 F. Supp.2d 651, 658 (S.D.N.Y. 1999) (Haight. J.) ("[T]he boundaries of the government's knowledge — actual or constructive, real or presumed, direct or imputed — are not drawn with precision.").
Judge Sand was sitting by designation in this district.
Judge Sand identified two "poles" in the caselaw. "On the one hand, courts, including the Supreme Court, have imputed knowledge of Brady material to prosecutors when the evidence is known only to prosecutorial personnel (including fellow prosecutors in the same office) or government agents investigating the particular case." Chandras, 2002 WL 31946711, at *7. In some circumstances, courts have imposed a duty on prosecutors to locate and disclose information "that is readily available through routine investigation of the prosecution's files or the files of other government agencies." Id. collecting cases).
At the other end of the spectrum are cases in which courts have limited the scope of the prosecution's duty to seek out Brady material. These cases have declined to charge the prosecution with knowledge of "evidence within the possession of all government agencies." Id. at *8 (emphasis in original). The Second Circuit has explained the rationale for placing limits on the extent to which Brady requires the prosecution to discover material in other agencies' files:
[K]nowledge on the part of persons employed by a different office of the government does not in all instances warrant the imputation of knowledge to the prosecutor, for the imposition of an unlimited duty on a prosecutor to inquire of other offices not working with the prosecutor's office on the case in question would inappropriately require us to adopt a monolithic view of government that would condemn the prosecution of criminal cases to a state of paralysis.
Avellino, 136 F.3d at 255. Thus, where the outside agency is "not involved in the investigation of the particular defendant," the prosecution will not be charged with knowledge of information in that agency's possession. Chandras, 2002 WL 31946711, at *8.
Judge Sand also identified cases, like the instant case. "involving agencies within the same government whose role is custodial rather than prosecutorial or investigative." Id. In certain circumstances. government custodial agents have been deemed to be part of the prosecution "team."Id. (citing a case involving the U.S. Marshal's Service and one involving police officers performing witness protection duty). However, "[i]n the absence of regular contact with the prosecution or any investigative or prosecutorial responsibility, . . . imputing knowledge of these government agents to the prosecution threatens to stretch the relevant phrase from the recent Supreme Court cases — `acting on the government's behalf in the case' — beyond its breaking point." Id.
Finally, Judge Sand noted the tension between cases imposing a duty on prosecutors to locate information in corrections files, see id. at *9 (citing, inter alia, Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir. 1997) (government obligated to turn over witness's prison records inasmuch as such material bore on the witness's credibility), and the Second Circuit's warning in Avellino against placing an "unlimited duty on a prosecutor to inquire of other offices not working with the prosecutor's office on the case in question" Id. (quoting Avellino, 136 F.3d at 255).
Although Chandras, like the instant case. involved records maintained in corrections files, Judge Sand did not reach a conclusion as to the precise circumstances in which the prosecution is required to obtain such information. Id. ("The Court need not decide whether, in a particular case, the relationship between the state prosecutor's office, the Department of Corrections, and a government witness or defendant would be extensive enough to require an individual prosecutor to learn of favorable evidence known only to corrections officials."). BecauseChandras was governed by the standards set forth in AEDPA, the court limited its inquiry to the question of whether the state court's determination that no Brady violation occurred was contrary to or an unreasonable application of clearly established Supreme Court precedent. "Guided by this deferential standard," the court held that the state court's decision did not provide a basis for habeas relief. Id.
Chandras involved psychiatric records maintained by the New York State Department of Corrections. Id. at *6.
This court, which must also accord AEDPA deference to the decision of the state court, likewise finds habeas relief unwarranted. Although the duty to disclose exculpatory evidence is clearly established by Brady and its progeny, the duty to seek out information from non-prosecutorial agencies other than the police is not. Although Kyles recognized a duty to obtain information from "others acting on the government's behalf in the [particular] case." the extension of this duty to corrections departments is anything but clearly established federal law, much less clearly established Supreme Court law. As accurately described by two district courts in this circuit, the scope of the prosecutor's duty to obtain information from other agencies is "uncertain," Chandras, 2002 WL 31946711, at *7, and "not drawn with precision." Shakur, 32 F. Supp.2d at 658. Given this state of the law, this court cannot conclude that the state court's opinion that "the People had no obligation to attempt to locate and gain possession of the material," Tr. Ct. Op. at 10, was contrary to, or unreasonably applied, Brady and its Supreme Court progeny. Nor can it conclude that the court made an unreasonable determination of fact in finding that the DOC file was not under the control of the prosecution or the police.
Moreover, even if Supreme Court precedent could be construed in such a way as to create, in a particular case, a clear legal obligation on the part of the prosecution to turn over information contained in prison files, this is not that case. The evidence adduced at the hearing conclusively established that the Department of Correction was not acting on behalf of the police or the prosecution. As several witnesses testified, the department was not under the control of the Police Department or the district attorney, either as a general matter or with respect to this case. This testimony thus confirmed the state court's finding — which is itself supported by the findings of other New York courts — that the Department of Correction is "in most respects, an administrative rather than a law enforcement agency." Tr. Ct. Op. at 10.
Moreover, no one on the prosecution "team" in petitioner's case had either actual or constructive knowledge that the DOC file contained potential Brady material. The ADA testified that he had not previously seen a Prisoner Movement slip, and that he was otherwise unaware of the contents of DOG files. Although Officer Johnson had seen Prisoner Movement Slips in the past, he never saw Braulin James's because he did not escort him to the courthouse. More importantly, nothing in the record suggests that Officer Johnson knew or should have known what happened to the Prisoner Movement Slips once the prisoner was transferred to DOG custody. Likewise, Chester Dabzitzki, the director of the Police Department Photographic Unit, testified that he had no knowledge of what happened to the Prisoner Movement Slip after the prisoner was received by officers from the DOG. Dabzitzki's uncontradicted testimony established that the Police Department did not monitor the Prisoner Movement Slip after relinquishing control of the prisoner. and that for all he knew, the slip was destroyed.
In sum, the court finds that Braulin James's Prisoner Movement Slip was not within the possession, actual or constructive, of the prosecution. This slip, like the pedigree form and the color photograph, was not used for investigative or prosecutorial purposes. The court is not persuaded by petitioner's argument that because the District Attorney's Office regularly obtained DOG phone and visitation records, the DOG effectively acted as an arm of the prosecution. Merely complying with requests for information did not transform the corrections department — whose function was the "care, custody, and control" of inmates — into an investigatory agency working at the behest of the prosecution. Moreover, the uncontradicted testimony of Edward Kosoff, the DOG official who handled requests for phone and visitation records. established that requests for all other types of records were handled separately. There is nothing in the record to suggest that the prosecution regularly availed itself of its "cooperative relationship" with the DOG (Pet. Post-Hrg. Mem. at 23) to obtain records other than phone and visitation records, such as the photographs and forms in this case. The testimony of a Legal Aid supervisor that his office sometimes obtained pedigree forms for use in identification cases hardly establishes that prosecutors knew of the contents of Braulin James's DOG file. The court thus finds that the prosecution did not "suppress" the material found in this file.
The two remaining aspects of petitioner's Brady claim are easily disposed of. First, petitioner contends that the prosecution had constructive knowledge of the arrest photograph of Braulin James in the police computer system. Confusingly, and contrary to evidence in the record, petitioner appears to claim that this photograph was not in fact lost or destroyed. To the extent this photograph existed in hard copy form on the Prisoner Movement Slip, the court agrees; the above discussion addresses this evidence. However, to the extent petitioner may be claiming that this photograph was retrievable from the computer, this claim is baseless. The record establishes that this photograph was destroyed automatically, pursuant to statute, after the grandjury dismissed James's case. Petitioner's speculative arguments as to why this photograph might not have been destroyed are unpersuasive. Moreover, the absence of evidence in the record indicating the precise date this photograph was destroyed does not establish that the photograph was not actually destroyed. In addition, there is no evidence that the failure to preserve the photograph was the result of bad faith on the part of the police or prosecution. Accordingly, no violation of petitioner's rights occurred with respect to this photograph. See Arizona v. Youngblood, 488 U.S. 51, 58 (1988) ("We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.").
Petitioner also contends that because the police officers had an opportunity to observe Braulin James when they arrested and processed him, their failure to disclose to the defense what he was wearing constituted a violation of Brady. As the court understands this argument, the officers' "knowledge" of James's clothing, gleaned from personal observation, constituted exculpatory or impeachment evidence subject to disclosure under Brady. Other than a self-evidently in-apposite New York Court of Appeals case holding that a non-memorialized prior inconsistent statement of a prosecution witness constituted Brady material, see People v. Bond, 95 N.Y.2d 840, 713 N.Y.S.2d 514 (2000), petitioner has cited no authority for this extraordinary' definition of what constitutes exculpatory or impeachment evidence. Under petitioner's formulation, the prosecution would violate Brady every time a witness's testimony deviated from the "truth" of what he or she "knew" based on his or her earlier observations. This argument has no basis in logic or law, and is rejected.
C. Ineffective Assistance of Counsel
Although plaintiff has not addressed his ineffective assistance of counsel claim in his post-hearing brief, which may well signify his intention to abandon it, the court briefly addresses it here for the sake of completeness. Under Strickland v. Washington, 466 U.S. 668 (1984), a petitioner must first show that counsel's performance was "outside the wide range of professionally competent assistance." Id. at 690. In his earlier memorandum of law, petitioner contends that his trial counsel was ineffective for not obtaining the materials in the DOG file. As described above, however, petitioner's trial counsel reasonably relied on the representation of the prosecutor that his efforts to subpoena this file had proved unsuccessful. This reliance was entirely justified and did not deprive petitioner of his right to effective legal representation.
At the hearing, petitioner confirmed his attorney's earlier waiver of any claim of ineffective assistance of appellate counsel that he may have been raising in his initial, pro se petition.
CONCLUSION
For the reasons stated above, the petition for a writ of habeas corpus is denied. Because petitioner has failed to make a "substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2) (1996), no certificate of appealability will be granted. The Clerk of Court is directed to enter judgment accordingly.
SO ORDERED.