Opinion
96-CV-1158 (FJS/GLS).
September 9, 1998
PAUL KELLER, Petitioner, Pro Se, Gloversville, New York.
HON. DENNIS C. VACCO, Attorney General of the State of New York Department of Law, Of Counsel, KEITH E. KAMMERER, ESQ., Asst. Attorney General, Albany, New York, Attorney for Respondent.
REPORT-RECOMMENDATION
This matter has been referred to the undersigned by United States District Judge Frederick J. Scullin, Jr., pursuant to 28 U.S.C. § 636(b) and Local Rules N.D.N.Y. 72.3(c).
Petitioner filed the instant habeas corpus petition on July 15, 1996. This court issued an Order pursuant to the Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. fol. § 2254, granting petitioner leave to proceed in forma pauperis, ordering service of the petition on respondent, and requiring service of an answer or other pleading by respondent. Respondent has filed his answer, together with the pertinent state court records and a Memorandum of Law.
The state court records submitted by respondent are listed in the first paragraph of the answer.
Petitioner complains of a judgment of conviction rendered against him on January 22, 1992, in the Fulton County Court after a jury found him guilty of two counts of sexual abuse in the second degree, rape in the second degree, and endangering the welfare of a child. Petitioner was sentenced to an indeterminate term of two to six years imprisonment. The Appellate Division, Third Department affirmed the conviction on June 10, 1993, People v. Keller, 598 N.Y.S.2d 844 (3d Dep't 1993), and the New York Court of Appeals denied leave to appeal on June 21, 1993. People v. Keller, 619 N.E.2d 672 (1993).
While his direct appeal was pending, petitioner made a motion to vacate judgment pursuant to N.Y. CRIM. PROC. LAW § 400.10, which was denied by the County Court on November 23, 1994. Petitioner's application to appeal the decision to the Appellate Division was denied.
Petitioner raises three claims in his application for habeas corpus relief. Petitioner alleges that: (1) the investigating officer coerced the victim into filing a complaint, but petitioner's trial counsel was not allowed to introduce evidence that the officer was demoted because of this misconduct; (2) the prosecutor was aware of the police officer's misconduct and fabricated evidence against petitioner to obtain a conviction; and, (3) the trial court erred when it denied petitioner's motion to vacate judgment.
Respondent argues for dismissal of the petition, claiming that petitioner has procedurally defaulted on grounds one and two of the petition, and ground three is without merit.
1. Facts:
Petitioner's conviction resulted from incidents which occurred between the Spring of 1989 and June 1990. The evidence adduced at petitioner's trial showed that, during that time, petitioner, who was then 41 years old, cultivated a relationship with the victim, an 11 year old girl. The victim was a neighbor who had known petitioner and his wife for several years. (Trial Transcript ("T") at 27). The friendship between petitioner and the victim started when petitioner and his wife, who were actively involved in a local church, invited the victim to attend church with them. (T. 27, 118-20). At some point in 1989, petitioner and the victim began writing letters to each other on a daily basis. (T. 122). The letters were passed by leaving them in a designated spot in a hallway outside petitioner's apartment. (T. 122-23).
The victim had a troubled home life as her parents were not getting along, and her mother was facing severe health problems. (T. 32). Petitioner encouraged the victim to visit him in his home on a regular basis, to write letters and to develop feelings for him. He invited the victim to trust him and confide in him, and told her that he cared about her and loved her. Petitioner gave the victim advice and told her in letters how much he missed her when they weren't together. (T. 154-55; 161-62; 164; 166-67; 170-72). Eventually the victim came to believe that she was in love with petitioner. (T. 174-75).
In May 1990, petitioner began a physical relationship with the victim, which at first consisted of kissing. (T. 175-77). Several of the kissing episodes occurred in petitioner's home while his wife was in another room. (T. 178-81).
On June 10, 1990, the victim spent most of the day with petitioner and his wife at church and in their home. (T. 192-94). Petitioner's wife left for work at 5:00 p.m. (T. 194). An hour later, petitioner and the victim went to a church meeting, and did not return home until after 9:30 p.m. (T. 194-97). When they arrived at the house, no one else was there. (T. 198). The two of them watched television and talked. (T. 198-99). At some point, petitioner began kissing the victim and unbuttoning her shirt. (T. 199-200). They then moved to the bedroom where the victim and petitioner both got undressed. (T. 200). Petitioner then attempted to have sexual intercourse with the victim. (T. 202-04). After the victim told petitioner that she wanted him to stop, they both got dressed and left the bedroom. (T. 204-05). The victim left the house when petitioner's wife arrived home. (T. 206).
On June 12, 1990, the victim's mother discovered some of the letters petitioner had written to the victim. (T. 30-33, 207). After reading the letters, the victim's mother became very concerned and went to the police, who began an investigation. (T. 31, 33, 50). The investigation included a pre-arranged phone call from the victim to the petitioner at his home. The call was made on June 15, 1990, from the City of Gloversville Police Station and recorded in the presence of police investigators. (T. 59; People's Exhibit # 1, transcript of phone call [annexed to trial transcript at p. 61]). Several of the letters written by petitioner, as well as the telephone tape recording, were admitted into evidence at petitioner's trial.
2. Exhaustion:
Prior to seeking relief in federal court, it is well settled that a petitioner must exhaust available state remedies or show that there is either an absence of available state remedies or that such remedies are ineffective to protect petitioner's rights. Ellman v. Davis, 42 F.3d 144, 147 (2d Cir. 1994), cert. denied, 115 S.Ct. 2269 (1995). The petitioner's claims must be fairly presented so that the state court has the opportunity to decide any federal constitutional issues. Id. In addition, the petitioner must have presented the substance of his federal claims to the highest available court of the state. Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 115 S.Ct. 1436 (1995) (citation omitted).
In ground one of the instant petition, petitioner alleges that the investigating officer and the prosecutor engaged in misconduct by "coercing" the victim into fabricating a complaint. In ground two, petitioner alleges that the prosecutor fabricated some evidence, was aware that other evidence was false, and maliciously prosecuted petitioner. Respondent argues that, because neither of these claims have been presented to the state's highest court for review, petitioner has failed to satisfy the exhaustion requirement.
Petitioner did not raise these claims on direct appeal, but did raise them in a motion to vacate judgment pursuant to N.Y. CRIM. PROC. LAW § 440.10. The motion was denied by the Fulton County Court on November 23, 1994, and permission to appeal to the Appellate Division was denied on March 14, 1995. Petitioner raised his claims in the highest available court, and has therefore satisfied the exhaustion requirement with respect to grounds one and two of the petition.
3. The Merits of Petitioner's Claims:
All three of petitioner's claims appear to be based upon the victim's recantation of her testimony. On April 23, 1993, a telephone conversation occurred between the victim and petitioner's counsel, in which the victim recanted her accusations against petitioner. Petitioner's counsel had the conversation tape-recorded and transcribed, and the recantation formed the basis of petitioner's 440 motion to vacate judgment, in which petitioner's counsel argued that the prosecutor and investigating officer had induced the victim to commit perjury.
A hearing was held on April 13, 1994, after a psychological evaluation of the victim determined that she understood her rights in the proceeding, understood the seriousness of the perjury charges that might be filed against her, and was not suffering from any mental disease, defect or psychosis. When asked by petitioner's counsel if she had told the truth at the trial, the victim invoked her Fifth Amendment right against self-incrimination. The prosecutor then offered immunity with respect to any perjury charges that might arise as a result of the victim's hearing testimony. Petitioner's counsel again asked the victim if she had told the truth at petitioner's trial regarding the events that occurred between her and petitioner in 1990. The victim answered, "Yes, I did tell the truth." Petitioner's counsel asked the victim if petitioner had fondled her and attempted sexual intercourse and sodomy with her. Petitioner replied, "Yes." Petitioner's counsel then sought to impeach the victim's testimony using the transcript of the telephone conversation, over the prosecutor's objection. Following a lengthy argument, the court sustained the objection, finding that the victim's unsworn recantation was an insufficient offer of proof of petitioner's claims.
Newly discovered evidence relative only to the guilt or innocence of the defendant is not sufficient to grant habeas corpus relief. Townsend v. Sain, 372 U.S. 293 (1963), overruled on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992). The new evidence discovered must bear on the constitutionality of the petitioner's conviction in order for habeas corpus relief to be available. Smithwick v. Walker, 758 F. Supp. 178 (S.D.N.Y. 1991), aff'd, 948 F.2d 1278 (2d Cir.). A state court's refusal to overturn a conviction based upon newly discovered evidence offends due process when: (1) the new evidence could not, with due diligence, have been discovered before or during trial; (2) evidence at trial was false and material; and, (3) the jury probably would have acquitted the defendant. Sanders v. Sullivan, 863 F.2d 218, 224-26 (2d Cir. 1988) (accepting standards for granting a new trial on direct appeal for use in federal habeas petitions attacking state court convictions).
"If newly discovered evidence indicates that testimony given at trial was perjured, the grant of a new trial depends on `the materiality of the perjury to the jury's verdict and the extent to which the prosecution was aware of the perjury.'" United States v. Wong, 78 F.3d 73, 81 (2d Cir. 1996) (quoting United States v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991), cert. denied, 508 U.S. 939 (1993)). There are two requirements under the test stated in Wong. First, the defendant must show that a witness, in fact, committed perjury. United States v. Moore, 54 F.3d 92, 99 (2d Cir. 1995) (quoting United States v. White, 972 F.2d 16, 20 (2d Cir.), cert. denied, 506 U.S. 1026 (1992)), cert. denied, 116 S.Ct. 793 (1996). The second requirement deals with prosecutorial knowledge of the perjury. In cases where there is alleged perjured testimony of which the prosecution was unaware, "the perjured testimony which will trigger a due process violation must be of an extraordinary nature. It must leave the court with a firm belief that, but for the perjured testimony, the defendant would most likely not have been convicted." Sanders, 863 F.2d at 226; Wong, 78 F.3d at 81.
In the present case, the record as a whole fails to support petitioner's claim that the victim committed perjury, or that the prosecutor or investigating officer suborned perjury. The record contains numerous letters suggesting a long-standing relationship between petitioner and the victim. Some of these letters were reviewed by the psychologist who examined the victim prior to the 440 motion hearing. The victim admitted to the psychologist that she had secretly received letters from petitioner for two years and had "strong feelings" for him. The victim stated that there had been times when she was strongly persuaded by petitioner's letters, which included statements of love for the victim, encouraged the victim to wait for petitioner, and placed responsibility for petitioner's guilt and potential death on the victim. (See, Psychological Evaluation at 3-5).
The record as a whole portrays the victim as an emotionally vulnerable and confused girl who was manipulated by petitioner into believing that she was in love with him. In an effort to free petitioner from incarceration, the victim told petitioner's appellate attorney (in an unsworn statement made over the telephone) that her trial testimony was false. However, the victim did not recant her testimony when placed under oath at the 440 hearing, even though the District Attorney offered her immunity from perjury charges.
Petitioner cannot establish that the victim's recantation was credible. The record directly refutes petitioner's claim that the victim perjured herself. All three of petitioner's claims for relief are without merit.
WHEREFORE, based on the findings in the above Report, it is
RECOMMENDED that the petition be DENIED and DISMISSED.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e), and it is
ORDERED that the state court records herein be returned directly to the office of the Assistant Attorney General at the conclusion of these proceedings. He has agreed to make them available for any appellate review.