Opinion
05 Civ. 8438 (CM) (KNF).
March 12, 2008
MEMORANDUM AND ORDER
BACKGROUND
Vincent Warren ("Warren"), proceeding pro se, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The petitioner alleged his confinement by New York State is unlawful because: (1) the prosecutor failed to disclose (i) a cooperation agreement with witness Sholey Juah ("Juah"), (ii) Juah's criminal history, (iii) a stop and frisk report of the arresting officer, and (iv) a police department memorandum indicating two males were responsible for the death of the victim; (2) his counsel rendered ineffective assistance to him when he failed to (a) locate, impeach and cross-examine witnesses, (b) allow him to testify he was sexually assaulted by two detectives, (c) request a jury instruction on flight, (d) object to the admission into the trial record of certain evidence, and (e) present evidence that would have created a reasonable doubt about his guilt; (3) the trial judge failed to notify him about a jury note and afford him an opportunity to review it before the court communicated with the jury about its inquiry; (4) the trial judge misstated the facts when instructing the jury; (5) receipt into the trial record of evidence of his bad acts violated due process; and (6) his sentence was excessive. The respondent opposed the petition. On November 13, 2007, the Court denied the petitioner's request to appoint him counsel and determined that, upon review of the petition and the answer, a hearing does not appear to be necessary in order to resolve the petition.
On February 3, 2008, the petitioner made an application for an evidentiary hearing in connection with his claims of: (1) prosecutorial misconduct; and (2) ineffective assistance of trial counsel. He contends a hearing is needed because the record was not developed due to prosecutorial misconduct and the error of the state court in denying him a hearing when he presented documents to it setting forth material facts that, if established, would entitle him to relief. According to the petitioner, a hearing should be held to determine if prosecutorial misconduct occurred and "whether false testimony could in any reasonable likelihood have affected the judgment of the jury." Moreover, the petitioner contends, a hearing should be held so he can "ask trial counsel why he would not investigate the memo which if successful would have impeached the only eye-witness, and possibly by doing so, reduced the penalty imposed." According to the petitioner, the "memo" was from the victim's grandmother, stating that "Down Town drew the gun." In a letter to the Court, dated February 13, 2008, the respondent requested that the Court adhere to its prior ruling, that a hearing is not necessary to resolve the petition. The petitioner's application for an evidentiary hearing is addressed below.
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") ordinarily precludes a petitioner who failed to develop the factual basis of a claim in state-court proceedings from seeking an evidentiary hearing in a federal court. See Schriro v. Landrigan, ___ U.S. ___, 127 S. Ct. 1933, 1940 n. 1 (2007); 28 U.S.C. § 2254(e)(2). "[A] failure to develop the factual basis of a claim is not established unless there is lack of diligence, or some greater fault, attributable to the prisoner or the prisoner's counsel." Williams v. Taylor, 529 U.S. 420, 432, 120 S. Ct. 1479, 1488 (2000). "Diligence for purposes of the opening clause [of 28 U.S.C. § 2254(e)(2)] depends upon whether the prisoner made a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court," not "upon whether those efforts could have been successful." Id. 529 U.S. at 435, 120 S. Ct. at 1490.
Where 28 U.S.C. § 2254(e)(2) does not preclude an evidentiary hearing, a district court retains broad discretion to receive evidence through a hearing. See Schriro, 127 S. Ct. at 1939. In determining whether to grant an evidentiary hearing, "a federal court must consider whether such a hearing could enable an applicant to prove the petition's factual allegations, which if true, would entitle the applicant to federal habeas relief." Id. at 1940. "[I]f the record refutes the applicant's factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Id.
Evidentiary Hearing on a Prosecutorial Misconduct Claim
On January 10, 2003, Warren filed a pro se motion to vacate the judgment of conviction, pursuant to New York Criminal Procedure Law ("CPL") § 440.10, with the New York State Supreme Court, Bronx County, claiming, inter alia, that the prosecutor violated his federal constitutional rights by failing to disclose he had entered into a witness cooperation agreement with Juah. The state court denied Warren's motion because he failed to raise this claim on direct appeal. The state court also determined that "unsubstantiated allegations are insufficient basis herein to predicate consideration of further relief." The Court finds, and Warren concedes, that 28 U.S.C. § 2254(e)(2) does not apply to him with respect to this claim because he did not fail to develop the record in the state-court proceedings.
Warren contends he is entitled to an evidentiary hearing because the state court erred in denying his CPL § 440.10 motion without a hearing and finding that his allegations were "unsubstantiated," where his "moving papers set forth material facts which if established would entitle him to relief." According to Warren, the state court "conducted no fact-finding hearing whatsoever, thus, nullifying the presumption of correctness."
The record demonstrates that the state court denied Warren's CPL § 440.10 motion based on his unjustifiable failure to raise his prosecutorial misconduct claim on direct appeal. See CPL § 440.10(2)(c). Under New York law, the state court need not conduct a hearing when it denies a CPL § 440.10 motion. See CPL § 440.30(4). The Court declines to exercise its discretion to grant Warren's request for an evidentiary hearing because his claim of prosecutorial misconduct appears to be procedurally barred.
Evidentiary Hearing on an Ineffective Assistance of Trial Counsel Claim
In his supplemental brief on direct appeal, Warren argued that his trial counsel rendered ineffective assistance to him because,inter alia, he possessed a statement by a woman that "she was the grandmother of a victim of Donnell Green/Down Town" and that "downtown pulled a gun on [the victim]. Counsel did not attempt to locate this woman. This name was redacted, counsel could have found out this ladies [sic] name through the Prosecutor." Warren did not fail to develop the factual basis of his ineffective assistance claim in state-court proceedings because, in light of the information available at the time, namely, that his trial counsel possessed the statement of the victim's grandmother and "did not attempt to locate this woman," he investigated and pursed that claim on direct appeal, albeit unsuccessfully. See Williams, 529 U.S. at 433, 120 S. Ct. at 1488-89 (quoting from Keeney v. Tamayo-Reyes, 504 U.S. 1, 7-8, 112 S. Ct. 1715, 1719, that no reason existed "to distinguish between failing to properly assert a federal claim in state court and failing in state court to properly develop such a claim."). Therefore, 28 U.S.C. § 2254(e)(2) does not apply to Warren with respect to his ineffective assistance of trial counsel claim.
Moreover, the Court declines to exercise its discretion to grant Warren's request for an evidentiary hearing because "an evidentiary hearing is not required on issues that can be resolved by reference to the state court record." See Schriro, 127 S. Ct. at 1940. Warren's allegation that, in order to determine whether the state court's application of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), was unreasonable, a hearing must be held "to see why counsel did not investigate or call the author of the memo to testify," does not warrant an evidentiary hearing. This is so because the issue of the reasonableness of the state court's application of clearly established federal law, governing an ineffective assistance of counsel claim, can be resolved based on the state-court record. Additionally, even where an expansion of the record is warranted, pursuant to Rule 7 of the Rules Governing Section 2254 Cases in the United States District Courts, a district court "may employ a variety of measures" to obtain evidence, including directing the parties to submit any appropriate material, such as affidavits, to avoid the "time and expense required for an evidentiary hearing." Blackledge v. Allison, 431 U.S. 63, 81-82, 97 S. Ct. 1621, 1633 (1977). However, the Court finds that expanding the record and granting an evidentiary hearing, in connection with the petitioner's ineffective assistance claim, are not warranted in the instant case.
CONCLUSION
For the reasons set forth above, the petitioner's application, for an evidentiary hearing, (Docket Entry No. 44), is denied.SO ORDERED: