Opinion
No. 99-CV-6308L.
August 16, 2004
DECISION AND ORDER
On July 22, 2003, this Court dismissed the instant petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 in its entirety and denied a Certificate of Appealability ("COA"). Petitioner, Elijah Nance ("Nance"), pro se, moved for a COA before the United States Court of Appeals for the Second Circuit. By Order entered May 6, 2004, that motion was denied as to all claims except petitioner's claim that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963). As to that single claim, the Court of Appeals granted the COA and remanded the case to the district court to consider the merits of petitioner's claim that there had been a Brady violation.
The Court of Appeals disagreed with this Court's determination that petitioner had failed to exhaust this claim in state court.
As directed by the Court of Appeals, this Court has reviewed the merits of petitioner's claim that a Brady violation occurred. For the reasons discussed below, I find no such violation and dismiss petitioner's § 2254 petition.
DISCUSSION
The facts that form the basis for petitioner's conviction of felony murder are set forth in this Court's prior Decision and Order, filed July 22, 2003, familiarity with which is assumed.The Court of Appeals remanded the petition solely for consideration of the merits of Nance's claim that the State violated Brady "by failing to disclose that two of the State's witnesses claimed reward money offered for information which led to [Nance's] conviction." Nance v. Bennett, 03-2716 (2d Cir. May 6, 2004). The Court of Appeals specifically referenced the remanded claim as "claim 4(d) from Appellant's 28 U.S.C. § 2254 petition." Upon review, there is no claim denominated "claim 4(d)" in the petition. In "Part D: Ground Four" of the petition, however, Nance claims that the prosecutor withheld Rosario material, and lists several specific claims within this ground. At subparagraph (4) of Part D ("D(4)"), Nance alleges that the prosecution "failed to turn over that their two main eyewitnesses had claimed the 10,000 dollar reward." (Petition, page 8). Thus, it appears that the claim to be considered on remand is claim D(4).
Cumberland Farms offered a $10,000 reward for information leading to the arrest and conviction of the person(s) responsible for the homicide.
Rosario refers to a state law duty on the part of the prosecutor to give defense counsel all pretrial statements of prosecution witnesses. People v. Rosario, 9 N.Y.2d 286, 289 (1961).
The Court of Appeals determined that this claim was exhausted by Nance's 1993 post-conviction motion, in which Nance alleged that the prosecution failed to disclose the identity of an individual entitled to the $10,000 reward money. In its Order denying Nance's motion to vacate the judgment, entered April 15, 1994, the state trial court found that Nance had not shown that any such information was known to the prosecution or that the identity of such person would be the source of exculpatory evidence. Thus, the state court disposed of Nance's alleged Brady violation on the merits and reduced the disposition to a judgment.
Nance filed a motion pursuant CPL § 440.10 on April 20, 1993; moved to consolidate the motion on July 28, 1993, and supplemented the motion on September 21, 1993.
Pursuant to 28 U.S.C. § 2254(d), a federal court must give substantial deference to a state court determination that has "adjudicated [the federal constitutional claim] on the merits". 28 U.S.C. § 2254(d) (emphasis added); Brown v. Artuz, 283 F.3d 492 (2d Cir. 2002) (citing Sellan v. Kuhlman, 261 F.3d 303 (2d Cir. 2001); Aparicio v. Artuz, 269 F.3d 78 (2d Cir. 2001)).
Thus, habeas corpus relief may not be granted unless the state court's adjudication:
(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); and see Williams v. Taylor, 529 U.S. 362, 412 (2000).
A state court decision is contrary to clearly established federal law if the state court "arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to" that of the Supreme Court. Williams, 529 U.S. at 405. The state court's application of clearly established federal law must be objectively unreasonable, not merely erroneous. Williams, 529 U.S. at 387 n. 14; accord Clark v. Stinson, 214 F.3d 315, 320-21 (2d Cir. 2000); Lurie v. Wittner, 228 F.3d 113, 129 (2d Cir. 2000). A state court determination of a factual issue is presumed to be correct. 28 U.S.C. § 2254(e)(1); Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001). The determination is unreasonable only where the petitioner meets his burden of rebutting the presumption of correctness by clear and convincing evidence. Id.; see also Francis S. v. Stone, 221 F.3d 100, 114 (2d Cir. 2000).
The federal law at issue here arises under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny. In Brady, the United States 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." Brady, 373 U.S. at 87; see also United States v. Agurs, 427 U.S. 97, 110 (1976) ("there are situations in which evidence is obviously of such substantial value to the defense that elementary fairness requires it to be disclosed even without a specific request"). "There are three components of a true Brady violation: [1] The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; [2] that evidence must have been suppressed by the State, either willfully or inadvertently; and [3] prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see also U.S. v. Jackson, 345 F.3d 59, 71 (2d Cir 2003).
Prior to any consideration of the merits of Nance's Brady claim, the nature of the claimed violation must be made clear. Nance is not claiming that any prosecution witness actually received reward money. Plaintiff's own documents submitted to the state court demonstrate that no reward money was paid, either before or after the trial. Thus, there simply is no evidence that any witness was paid a reward, much less that the prosecution knew about a payment and failed to reveal it to the defense.
In support of his final motion to vacate, Nance submitted a letter that he received from Allen Afrow, General Counsel and Secretary, Cumberland Farms, Inc., dated May 28, 1993. In the letter, Afrow stated that Cumberland Farms did determine who would be entitled to the receive the reward. No reward was ever paid, however, because Cumberland Farms entered bankruptcy on May 1, 1992.
Additionally, the claim at issue is not that the prosecution failed to disclose any and all information regarding the Cumberland Farms reward offer. Such a claim would be spurious in light of the trial record. Nance does not dispute the prosecution's statement that the "wanted poster" (in which the reward offer is set forth) was provided to defense counsel prior to trial. Clearly, defense counsel was made aware of the reward offer, as evidenced by his cross-examination of a prosecution witness and his argument in summation. Nance's conclusory assertion that the prosecution did not disclose information regarding the reward offer to the contrary is unfounded and without merit.
Thus, the only alleged Brady violation at issue is Nance's assertion that the prosecution suppressed evidence that two prosecution witnesses had sought to claim the reward. First, there is nothing to indicate that any additional information regarding the reward was known to the prosecution and not disclosed to the defense prior to trial. To satisfy the Brady obligation, "the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police." Kyles v. Whitley, 514 U.S. 419, 437 (1995). Nevertheless, Nance's contention that the prosecution knew of such evidence is based on speculation and conjecture: if Cumberland Farms determined who was entitled to the reward, then it must have been a prosecution witness; if a witness was entitled to the reward, then he or she must have filed a claim prior to testifying; and that if a witness filed a claim, then the prosecution must have known. These speculations are insufficient to establish that the prosecution knew that a witness or witnesses had filed a claim to the reward and failed to disclose this information prior to trial. Nance relies on the mere fact that, when responding to Nance's inquiry, Allen Afrow, General Counsel and Secretary for Cumberland Farms sent a copy of his letter to Detective John Vickend of the Buffalo Police Department. The letter was written more than two years after the trial, and Afrow merely sent a copy to the detective. Nothing else in the letter establishes or implies police participation; Afrow never elaborated on the Cumberland Farms decision. He did not name the person to whom the reward was to be given, nor when any claim was filed. There is simply no evidence that any witness filed a claim, entered into any agreement with either the prosecution or Cumberland Farms, or otherwise sought the reward prior to testifying. Thus, Nance has not established that the prosecution knew of a specific negotiation or agreement regarding the payment of the reward in exchange for testimony, and that the prosecution failed to disclose it.
Second, to the extent that any such evidence may exist, Nance has not established that evidence was suppressed by the prosecution. In fact, defense counsel used the existence of the reward both during cross-examination and summation. Evidence "is not `suppressed'" by the government within the meaning of Brady "if the defendant or his attorney `either knew, or should have known, of the essential facts permitting him to take advantage [that] evidence." United States v. Payne, 63 F.3d 1200, 1208 (2d Cir. 1995) (quoting United States v. Zackson, 6 F.3d 911, 918 (2d Cir. 1993)). Here, information regarding the reward offer was clearly known to defense counsel. During cross-examination at trial, defense counsel specifically asked Assistant Store Manager James Porter about the Cumberland Farms reward. [T. 70]. Porter was aware of the reward offer made by Cumberland Farms, and defense counsel asked whether Porter recalled "if the company has paid anybody that reward money at this time?" [T. 70]. Porter replied that "it has not been brought to my knowledge." [T. 70]. Thus, defense counsel knew of the reward offer and, during summation, argued that Foots tailored his testimony in anticipation of gaining the reward money. [T. 405]. "The purpose of the Brady rule is not to provide a defendant with a complete disclosure of all evidence in the government's file which might conceivably assist him in preparation of his defense, but to assure that he will not be denied access to exculpatory evidence known to the government but unknown to him." U.S. v. Ruggiero, 472 F.2d 599, 604 (2d Cir. 1973); and see U.S. v. Morales, 916 F.Supp. 336 (S.D.N.Y. 1996). Nothing in this action indicates that the prosecution withheld additional evidence regarding the reward that was not available to the defense.
Finally, Nance has not established that, if there was evidence that prosecution witnesses had made a claim to the reward, such evidence was material. The "mere possibility that an item of undisclosed information might have helped the defense or might have affected the outcome of the trial, does not establish materiality in the constitutional sense." U.S. v. Agurs, 427 U.S. at 109-110. "`[T]he government violates its duties under Brady if it suppresses evidence that, if disclosed, would have had a reasonable probability of changing the outcome of the proceedings.'" U.S. v. Jackson, 345 F.3d 59, 69 (2d Cir. 2003) (quoting In re United States (United States v. Coppa), 267 F.3d 132, 144 (2d Cir. 2001)); and see United States v. Bagley, 473 U.S. 667, 681-682 (1985); see also Kyles v. Whitley, 514 U.S. 419, 433-434 (1995); United States v. Gambino, 59 F.3d 353, 365 (2d Cir. 1995). In Coppa, the Second Circuit reiterated that " Brady does not, however, require the prosecution to disclose all exculpatory and impeachment material; it need disclose only material "that, if suppressed, would deprive the defendant of a fair trial." United States v. Coppa, 267 F.3d at 135 (citing United States v. Bagley, 473 U.S. at 675).
Impeachment evidence is not material under Brady if it "`merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable.'" United States v. Amiel, 95 F.3d 135, 145 (2d Cir. 1996) (quoting United States v. Wong, 78 F.3d 73, 79 (2d Cir. 1996)). That was all that could have occurred here. The evidence would have merely added to the impeachment evidence already utilized. Defense counsel established the existence of the reward during his cross-examination and argued to the jury that Foots may have had a financial interest in testifying to convict Nance. In this posture, there is no reasonable probability that such additional impeachment would have altered the verdict or undermined "`confidence in the outcome of the trial.'" Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678); see also Payne, 63 F.3d at 1209.
Moreover, Nance's asserted Brady violation pales in light of the strength of the evidence against him. The evidence presented at trial came from several sources, and was often confirmed by other independent sources. Three eyewitnesses to the robbery and shooting testified to what occurred: Porter, Mary Jane Hulin and Rand Schwab. The murder weapon was recovered from Nance's brother-inlaw's home. In addition to Porter identifying it as the weapon used in the homicide, ballistic experts further confirmed that it was the murder weapon. Hulin identified Nance as the shooter. Schwab identified Nance's wife;'s car as the car used in the robbery. Another witness, Malcolm Foots, who had known Nance for years, testified that Nance confessed to shooting the victim. Additional statements Nance made at arrest were introduced against him, and additional testimony was admitted to support Foots's testimony.
"[A] Brady violation occurs only where the government suppresses evidence that `could reasonably [have been] taken to put the whole case in such a different light as to undermine confidence in the verdict.'" United States v. Coppa, 267 F.3d at 139 (quoting Kyles v. Whitley, 514 U.S. at 435); accord Bagley, 473 U.S. at 678; see also United States v. Agurs, 427 U.S. at 122 (holding that Brady's materiality standard "reflect[s] our overriding concern with the justice of the finding of guilt"). Given the strength of the evidence against Nance, developed from multiple and independent sources, any failure to disclose evidence regarding prosecution witnesses filing a claim to the reward did not prejudice Nance, and thus there is no basis for granting Nance's claim for relief under Brady.
The state court found that Nance had not established either that the prosecution knew of a witness's claim of the reward or that the evidence would be exculpatory. This state court determination was not contrary to, or an objectively unreasonable application of, the law clearly established by the Supreme Court in Brady and its progeny. Thus there is no basis for relief under 28 U.S.C. § 2254(d)(1). See Williams v. Taylor, 529 U.S. at 405-406; Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000). The remaining claim in the petition is hereby dismissed.
CONCLUSION
For the reasons stated above, petitioner's request for habeas relief pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed. The motion for appointment of counsel is denied as moot.
Further, because the issues raised in the petition are not the type that a court could resolve in a different manner, and because these issues are not debatable among jurists of reason, this Court concludes that the petition presents no federal question of substance worthy of attention from the Court of Appeals and, therefore, pursuant to 28 U.S.C. § 2253 and Rule 22(b) of the Federal Rules of Appellate Procedure, this Court denies a certificate of appealability.
The Court also hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this judgment would not be taken in good faith and therefore denies leave to appeal as a poor person. Coppedge v. United States, 369 U.S. 438 (1962). Petitioner must file any notice of appeal with the Clerk's Office, United States District Court, Western District of New York, within thirty (30) days of the date of judgment in this action. Requests to proceed on appeal as a poor person must be filed with the United States Court of Appeals for the Second Circuit in accordance with the requirements of Rule 24 of the Federal Rules of Appellate Procedure.
IT IS SO ORDERED.