Opinion
9:99-CV-0587 (GLS).
February 19, 2004
NATHAN MOORE, Petitioner, Pro Se, Elmira, NY, for the Petitioner.
STEVEN H. SCHWARTZ, ESQ., Asst. Attorney General, HON. ELIOT SPITZER, Office of Attorney General, State of New York, Albany, NY, for the Respondent.
DECISION and ORDER
I. Background A. State Court Proceedings
According to the testimony adduced at trial, in January 1994, J.R. was working as a confidential informant for the Albany County Sheriff's Department. See Transcript of Trial of Nathan Moore (5/22/95) ("Tr.") at PP. 67-68. On January 21, 1994, a member of the Sheriff's Department requested that J.R. attempt to purchase heroin from an individual named Wes ( Tr. at PP. 68-69). J.R. called Wes, asked him if he could purchase heroin, and the two agreed to meet later that day in the City of Albany ( Tr. at PP. 71-72). Upon arriving at the agreed upon location, J.R. purchased a substance from Moore for $25.00 which J.R. thereafter gave to the authorities ( Tr. at P. 76). J.R. also testified that on January 26, 1994, while acting as a confidential informant for the authorities, he purchased an additional quantity of heroin from Moore ( Tr. at PP. 78-85).
In light of the nature of the confidential informant's work, this court will not refer to this individual by name.
Petitioner, pro se Nathan Moore was the individual whom J.R. knew as "Wes" ( Tr. at PP. 86-87).
Prior to meeting with Wes, the authorities placed a transmitter on J.R.'s body which enabled them to hear and record conversations between he and Wes ( Tr. at P. 73).
The substance subsequently tested positive for the presence of heroin ( Tr. at PP. 294-97).
On May 11, 1994, Moore was indicted by an Albany County grand jury and charged with two counts of third degree criminal sale of a controlled substance, the first count relating to the sale on January 21, 1994, and the second count attributable to the alleged sale on January 26, 1994 ( App. in Support of Appeal at PP. A2-3). Moore's jury trial commenced on May 22, 1995, with Supreme Court Justice Thomas W. Keegan, presiding. At the conclusion, Moore was found guilty of third degree criminal sale of a controlled substance arising out of the January 21, 1994 transaction, but not guilty as to the other count ( Tr. at PP. 391-95). On July 6, 1995, Justice Keegan sentenced Moore as a second felony offender to an indeterminate term of twelve and one-half to twenty-five years imprisonment. See Sentencing Tr. (7/6/95) at P. 22.
Moore appealed his conviction and sentence to the New York State Supreme Court, Appellate Division, Third Department. That court affirmed, People v. Moore, 244 A.D.2d 776 (3d Dept. 1997). The Court of Appeals thereafter denied Moore leave to appeal. People v. Moore, 91 N.Y.2d 975 (1998). B. This Proceeding
Moore filed his habeas petition pursuant to 28 U.S.C. § 2254 in this District on April 16, 1999. See Pet. On October 4, 1999, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed an answer and memorandum of law in opposition to the petition ( Dkt. Nos. 8-9). Moore thereafter filed a "traverse" in further support of his petition ( Dkt. No. 10). II. Discussion A. Standard of Review
In his traverse, Moore acknowledges that he never filed the memorandum of law to which he refers in his petition ( Dkt. No. 10 at ¶ 3). To date, Moore has not filed any supporting memorandum in this action.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), a federal court may not grant habeas relief to a state prisoner on a claim:
that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
1) 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); see also, Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001). The AEDPA also requires that in any federal habeas corpus proceeding, "a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also, Boyette, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted). In interpreting the AEDPA, the Second Circuit has noted:
[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in the habeas petition "clearly established" when the state court ruled? 2) If so, was the state court's decision "contrary to" that established Supreme Court precedent? 3) If not, did the state court's decision constitute an "unreasonable application" of that principle?Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)). A state court's decision is "contrary to" established Supreme Court precedent if it applies a rule that contradicts Supreme Court precedent, or decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Moreover, a federal court is not to consider whether the state court's determination was merely incorrect or erroneous, but instead whether it was "objectively unreasonable." Williams, 529 U.S. at 409; see also, Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001); Valtin v. Hollins, 248 F. Supp.2d 311, 314 (S.D.N.Y. 2003). The Second Circuit has noted that this inquiry admits of "[s]ome increment of incorrectness beyond error", though "the increment need not be great[.]" Francis S., 221 F.3d at 111.
B. Substance of Petition 1. Brady Claims
As will be seen, each of the three grounds seeks habeas relief based upon allegations that the prosecution: i) failed to turn over exculpatory materials as required under Brady v. Maryland, 373 U.S. 83 (1963); and, ii) engaged in misconduct prior to and/or during Moore's criminal trial. Therefore, this court addresses the merits of the petition by reference to the legal theories raised by him in his petition.
Moore's first ground alleges that the prosecution failed to timely provide him with the record of J.R.'s convictions in violation of his request for all Brady material. See Pet. at Ground One; see also, Dkt. No. 10 at PP. 3-4. The second ground alleges that the prosecution improperly failed to provide Moore's counsel with material relating to an agreement between J.R and the prosecution which demonstrated that J.R.'s testimony was the product of either an undisclosed plea bargain or a promise of leniency regarding unspecified criminal charges against him ( Pet. at Ground Two). The final ground alleges that the prosecution wrongfully failed to disclose evidence which established that Anthony Ryan, an Investigator for the Albany Police Department, was unable to identify Moore's voice on the audio recordings made of the conversations between J.R. and Moore during the alleged drug sales ( Pet. at Ground Three).
Moore's counsel had previously requested that the prosecution provide him with all exculpatory evidence in its possession ( App. at P. A11).
a. Clearly Established Supreme Court Precedent
In Brady, the Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id., 373 U.S. at 87. To prove a Brady violation, a habeas petitioner must establish that: 1) the evidence at issue was favorable to the accused, either because it was exculpatory or could have impeached a prosecution witness; 2) the evidence was suppressed by the prosecution, either willfully or inadvertently; and, 3) prejudice ensued from the withholding. Moore v. Illinois, 408 U.S. 786, 795 (1972) (citing Brady); see also, Strickler v. Greene, 527 U.S. 263, 281-82 (1999). b. Contrary to, or Unreasonable Application of, Supreme Court Precedent
The rule announced in Brady is clearly established for purposes of the AEDPA. See Bellezza v. Fischer, 01-CV-1445, 2003 WL 21854749, at *14 (E.D.N.Y. Aug. 6, 2003) (citing Brady); Huber v. Schriver, 140 F. Supp.2d 265, 274 (E.D .N.Y. 2001); Brooks v. Artuz, 97 CIV. 3300, 2000 WL 1532918, at *5 (S.D .N.Y. Oct. 17, 2000) (state court findings "were not contrary to, or objectively unreasonable applications of the law clearly established by the Supreme Court in Brady and its progeny") (citations omitted).
The Appellate Division rejected Moore's Brady claims. Moore, 244 A.D.2d at 777-78. Therefore, this Court must determine whether that decision was contrary to, or represented an unreasonable application of, Brady.
Moore's initial contention argues that the prosecution did not timely disclose J.R.'s conviction record for use at his trial ( Pet. at Ground One). In rejecting this claim, the Appellate Division found that prior to the prosecution's opening statement, Moore's counsel was provided with "a tabular list of [J.R.'s] prior convictions, setting forth in each case the date of conviction, the county in which the judgment of conviction was entered and the offense for which he was convicted." Moore, 244 A.D.2d at 777. Since it was "clear from the record that [Moore] had an ample opportunity to cross-examine [J.R.] concerning his prior convictions," the Third Department concluded that Moore was not prejudiced by either the manner or timing of the prosecution's disclosure of that information. Id.
"[A]s long as a defendant possesses Brady evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not produce the evidence sooner." United States v. Coppa ( In re United States), 267 F.3d 132, 142 (2d Cir. 2001); Cheng v. Greiner, 02CIV. 4804, 2003 WL 22801348, at *6 (S.D.N.Y. Nov. 25, 2003); United States v. Patterson, 02CR. 0283, 2002 WL 31890950, at *11 (S.D.N.Y. Dec. 27, 2002) (citing Coppa). Thus, "[t]here is no Brady violation unless there is a reasonable probability that earlier disclosure of the evidence would have produced a different result at trial." Coppa, 267 F.3d at 142 (citing Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001)).
At Moore's trial, J.R. was extensively cross-examined about his prior criminal record ( Tr. at PP. 120-27). Since the defense clearly possessed information regarding J.R.'s criminal convictions in time for counsel's effective use of that information at Moore's trial, this aspect of his petition is without substance.
Moore also argues that the prosecution failed to provide his defense attorney with information regarding "an expressed or implied promise made to [J.R.] of any benefit or leniency in exchange for his cooperation and testimony in this case ( Pet. at Ground Two). In rejecting this claim, the Third Department found that Moore "offer[ed] nothing more than speculation that [J.R.'s] testimony was induced by some concealed plea bargain or promise of leniency." Moore, 244 A.D.2d at 777.
Moore has failed to provide evidence of any agreement between the prosecution and J.R. relating to his willingness to testify at his trial. Although he speculates that such an agreement existed, courts cannot grant habeas relief based upon unsubstantiated conclusions, opinions or speculation. Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (federal courts should not grant "habeas relief on the basis of little more than speculation with slight support"); see Osinoiki v. Riley, CV-90-2097, 1990 WL 152540, at *2-3 (E.D.N.Y. Sept. 28, 1990) (conclusory statements based on speculation "are inadequate to satisfy petitioner's burden") (citing Machibroda v. United States, 368 U.S. 487, 495 (1962); Dory v. Commissioner of Correction, 865 F.2d 44, 45 (2d Cir. 1989) (per curiam)) (other citations omitted); see e.g., Franza v. Stinson, 58 F. Supp.2d 124, 154 (S.D.N.Y. 1999) (rejecting habeas claim alleging the withholding of Brady material as speculative, conclusory and unsupported). A party asserting a Brady claim must establish that the evidence sought, in fact, existed. See United States v. Kennedy, 819 F. Supp. 1510, 1518 (D.Colo.) (citation omitted), aff'd sub nom. United States v. Byron, 994 F.2d 747 (10th Cir. 1993). Since Moore has not provided any evidence which rebuts the state courts' findings that no agreement existed between the prosecution and J.R. relating to his testimony at Moore's trial, this aspect of the petition is denied. See Kennedy, 819 F. Supp. at 1518; see e.g., Berger v. Stinson, 97 F. Supp.2d 359, 366 (W.D.N.Y. 2000) (state court's factual findings regarding Brady claims entitled to deference under the AEDPA) (citations omitted).
The final theory asserted by Moore in support of his Brady claim contends that the prosecution improperly failed to disclose evidence which established that "a Police witness had been unable to identify [Moore's] voice on [the] recordings of the alleged drug purchases . . ." ( Pet. at Ground Three). In considering this claim, the Appellate Division noted that although the record supported Moore's claim that Investigator Ryan was unable to positively identify Moore's voice on the audiotapes created during his meetings with J.R., that court nevertheless "agree[d] with Supreme Court's determination that such evidence did not constitute Brady material for it was not exculpatory." Moore, 244 A.D.2d at 777.
The prosecution only has a duty to disclose favorable evidence to the accused where the evidence is "material" either to the defendant's guilt or punishment. Ferguson v. Walker, 00CIV. 1356, 2002 WL 31246533, at *3 (S.D.N.Y. Oct. 7, 2002) (citing Brady, 373 U.S. at 87). Evidence is material in this context "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 Bagley, 473 U.S. at 682) (other citation omitted); Miller v. Angliker, 848 F.2d 1312, 1320 (2d Cir. 1988) (citing Pennsylvania v. Ritchie, 480 U.S. 39, 57 (1987)) (other citations omitted).
This court concurs with the state courts' findings that Detective Ryan's inability to definitively identify Moore's voice on the audiotapes was not material evidence which the prosecution was required to disclose under Brady. That information was not exculpatory because Detective Ryan never indicated that the voice on the audiotapes was not that of Moore. As the Appellate Division noted, various factors such as the quality of the recordings or Investigator Ryan's lack of familiarity with Moore's voice could have prevented him from identifying Moore's voice. See Moore, 244 A.D.2d at 778. Additionally, there is no evidence that there was a reasonable probability that had that information been disclosed to the defense, the result of Moore's trial would have been different. During his direct examination, Detective Ryan never referred to the audiotapes but rather limited his testimony to his visual observations of Moore. See Tr. at PP. 242-57; see also, Moore, 244 A.D.2d at 778. Therefore, Moore's counsel could not have properly cross-examined J.R. about whether he recognized Moore's voice on the audiotapes. See e.g., Houghton v. Jones, 1 Wall. (U.S.) 702, 706 (1863) ("The rule has been long settled, that the cross-examination of a witness must be limited to the matters stated in his direct examination"); Matter of Heather J., 244 A.D.2d 762, 763-64 (3d Dept. 1997) (citation omitted). Since the cross-examination of Detective Ryan regarding his inability to positively identify Moore's voice on the audiotapes would have been improper, the prosecution's failure to provide that evidence to the defense could not have affected the outcome of Moore's trial. Accordingly, this aspect of Moore's petition is without substance.
Moore was not apprised of the fact that Detective Ryan could not positively identify his voice on the audiotapes until after the jury had already begun its deliberations. See App. at P. A35; see also, Moore, 244 A.D.2d at 777.
In sum, Moore has failed to establish that the Third Department's decision rejecting his Brady claims was either contrary to, or represented an unreasonable application of, Brady and its progeny. Therefore, Moore is not entitled to habeas relief as to any of his Brady claims.
2. Prosecutorial Misconduct
The court now considers Moore's allegations that his conviction was obtained as a result of prosecutorial misconduct.
a. Clearly Established Supreme Court Precedent
A criminal defendant's right to a fair trial is mandated by the United States Constitution. Albright v. Oliver, 510 U.S. 266, 273 n. 6 (1994) (citing United States v. Agurs, 427 U.S. 97, 107 (1976)). However, for habeas relief to be granted based on a claim of prosecutorial misconduct, the alleged misconduct must have "'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In considering such a claim, courts are to focus on "the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982).
b. Contrary to, or Unreasonable Application of, Supreme Court Precedent
Initially, the court notes that Moore has failed to articulate how the fairness of his trial was adversely effected by the timing of the disclosure of J.R.'s conviction record. Although Moore claims that his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution were violated due to the untimely disclosure of that information ( Pet. at Ground One), "the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam) (emphasis in original); Harper v. Kelly, 916 F.2d 54, 57 (2d Cir. 1990) (citing Fensterer); Angeles v. Greiner, 267 F. Supp.2d 410, 418 (E.D.N.Y. 2003) (citation omitted). Since Moore's counsel capably cross-examined J.R. about his prior convictions based upon the information provided to the defense by the prosecution, Moore's argument that the timing of the disclosure violated his right to confront that witness, or otherwise prejudiced him at his trial, is without substance.
The Confrontation Clause provides, "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." U.S. Const. Amend. VI.
Moore's next claim alleging prosecutorial misconduct is based upon his contention that the prosecution failed to provide his counsel with information which established that J.R.'s testimony was the product of an undisclosed agreement between Moore and J.R. ( Pet. at Ground Two). However, as with his related Brady claim, this argument fails because Moore has not provided any evidence which establishes that the agreement upon which this claim is based ever existed.
The habeas petitioner has the burden of proving that his constitutional rights were violated. See Whitaker v. Meachum, 123 F.3d 714, 716 (2d Cir. 1997) (citing Walker v. Johnston, 312 U.S. 275, 286 (1941) (petitioner has the burden of "sustaining his allegations by a preponderance of evidence" on collateral review) (other citations omitted); Frazier v. New York, 187 F. Supp.2d 102, 108 (S.D.N.Y. 2002) (citation omitted).
Finally, there is no evidence that the prosecution's failure to inform the defense that Detective Ryan was unable to definitively identify Moore's voice on the audiotapes ( Pet. at Ground Three) rendered Moore's trial unfair. As the Appellate Division noted, Investigator Ryan "was utilized in the police operation solely because of his ability to 'eyeball' defendant, and he limited his trial testimony to his visual observations." Moore, 244 A.D.2d at 778. Thus, even if the defense had been advised of Detective Ryan's inability to identify Moore's voice on the audiotapes, his attorney would have been precluded from exploring issues relating to this fact during his cross-examination of J.R. E.g., Houghton, 1 Wall. at 706; Heather J., 244 A.D.2d at 763-64.
Since Moore has failed to establish that the Third Department's denial of this aspect of his appeal was contrary to, or represented an unreasonable application of, Donnelly and its progeny, his claims alleging prosecutorial misconduct must be denied.
WHEREFORE, based upon the above, it is hereby
ORDERED, that Moore's habeas petition is DENIED and DISMISSED; and it is further
ORDERED, that the Clerk of Court serve a copy of this Decision and Order upon the parties by regular mail; and it is further
ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings (including any appeal of this Decision and Order filed by any party).
IT IS SO ORDERED.