Brooks's statement is not material evidence because there is no reasonable probability that the outcome of the trial would have been different if the defense had known of the evidence. See Gambino, 59 F.3d at 365; Bagley, 473 U.S. at 682. As previously discussed, the prosecution produced a substantial quantity of evidence against petitioner. Thus, the mere fact that one witness had considered falsely accusing petitioner of beating her, and then chose not to testify falsely, would not have created a reasonably probability that the outcome of the trial would have been different. Further, because Brooks testified that she was a prostitute, the jury may have questioned her honesty and doubted her testimony. Thus, it is unreasonable to conclude that jury's opinion of Ms. Brooks--and, indeed, its conclusion that petitioner was guilty--would have suffered a sea change if the jury had only heard that Burkett claimed that Brooks had once stated that Brooks intended to testify falsely. Therefore, petitioner's claim is meritless.
Third, Petitioner's claim that the prosecutor violated Brady by failing to turn over records from the Elmsford Motel is meritless because petitioner has failed to demonstrate that the prosecutor knew of the existence of these records and because these records were not material evidence. As the Report notes, there were two types of relevant records from the Elmsford: sign-in records that were filled out by guests, and summaries of the sign-in records that were written by Elmsford employees. Report at 3-4. Petitioner obviously has failed to state a Brady claim regarding the employee-written summaries because these records were handed over to the defense. Id. at 3-4. Indeed, not only did defense counsel possess these records, but counsel and the prosecutor stipulated that "there is no record of a Dennis Magnotta or Magnotta registering [at the Elmsford Motel]." (Tr. at 883-84.)
Further, petitioner has failed to show that the prosecutor knew of the existence of the sign-in records. The only evidence that petitioner points to in support of his claim that the prosecutor was aware of the existence of the sign-in records is a hand-written note that was discovered with these records, which states that the prosecutor "will call tonight." Although this note demonstrates that at least one Elmsford employee was aware that the prosecutor was looking for these records, this note does not demonstrate that the prosecutor knew of the existence of the sign-in sheets.
In addition, after conducting a hearing to determine whether the prosecutor suppressed the sign-in records, Magistrate Judge Gershon concluded that the prosecutor had not. Report at 5-7. Magistrate Judge Gershon observed that the prosecutor's hearing testimony that she was unaware of the existence of these records was "straightforward and thoroughly credible." Report at 5.
Further, as the Report correctly asserts, petitioner has failed to establish a Brady violation because the Elmsford sign-in sheets are not material evidence. There is no reasonable probability that these records would have changed the outcome of petitioner's trial. See Bagley, 473 U.S. at 682. As previously discussed, the prosecutor and defense counsel stipulated that "there is no record of a Dennis Magnotta or Magnotta registering [at the Elmsford Motel]." (Tr. at 883-84.) Thus, the sign-in sheets--which do not contain any record that petitioner registered at the Elmsford--only establish a fact to which the prosecution had stipulated at trial. Therefore, far from creating a reasonable probability that the outcome of the trial would have been different, there is no possibility that the outcome of the trial would have been different if the defense had obtained these records.
Accordingly, this Court holds that petitioner is not entitled to § 2254 relief on ground that the prosecutor failed to hand over Brady material.
3. Prosecution's Alleged Use of Perjured Testimony
In addition to a prosecutor's duty to disclose material evidence that is favorable to a defendant, a prosecutor "has a duty to refrain from eliciting and relying upon testimony known to be perjurious." Gaggi, 811 F.2d at 59 (citing Mooney v. Holohan, 294 U.S. 103, 112, 79 L. Ed. 791, 55 S. Ct. 340 (1935) (per curiam)). "To challenge a conviction because of a prosecutor's knowing use of false testimony, a defendant must establish that (1) there was false testimony, (2) the Government knew or should have know that the testimony was false, and (3) there was 'any reasonable likelihood that the false testimony could have affected the judgment of the jury.'" United States v. Helmsley, 985 F.2d 1202, 1205-06 (2d Cir. 1993) (quoting United States v. Agurs, 427 U.S. at 103); see also United States v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991) (citations omitted). This standard has been liberally interpreted in favor of defendants, and thus "if it is established that the government knowingly permitted the introduction of false testimony reversal is 'virtually automatic.'" Wallach, 935 F.2d at 456 (quoting United States v. Stofsky, 527 F.2d 237, 243 (2d Cir. 1975)).
If the prosecutor introduced perjured testimony without knowing that the testimony was perjurious, a different standard applies. "Where the government was unaware of a witness' perjury . . . a new trial is warranted only if the testimony was material and 'the court [is left] with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted.'" Wallach, 935 F.2d at 456 (quoting Sanders v. Sullivan, 863 F.2d 218, 226 (2d Cir. 1988) (bracket in Wallach).
Petitioner contends that his convictions violate due process because the prosecutor knowingly used several pieces of false testimony. First, petitioner contends that Officer McCabe committed perjury when he stated that he did not find the sign-in sheets at the Elmsford Motel. (Petitioner at 9-10.) Petitioner contends that both Officer McCabe and the prosecutor knew of the existence of these records. (Petition at 9.) Second, petitioner contends that despite the fact that the prosecutor knew that Burkett could not read, the prosecutor did not correct Burkett's testimony on cross-examination that Burkett could read. (Petition at 12.) Petitioner contends that this failure constitutes a knowing use of perjured testimony. Id. Third, petitioner contends that the prosecutor intentionally elicited false testimony from Patricia Burkett that petitioner had ties with the Mafia. See id. at 15. Fourth, petitioner claims that the prosecutor knowingly elicited perjured testimony that Nancy Brooks and Patricia Burkett did not know each other, when in fact, Brooks and Burkett knew each other. Id. at 16.
The Report rejects each of petitioner's four claims. First, the Report finds that "there is no inconsistency between Officer McCabe's testimony at trial and [Investigator Fredricksen's] report that would indicate that Officer McCabe gave perjured testimony regarding the condition of the records [at the Elmsford Motel] or his knowledge of their contents." Order at 19. Further, as discussed above, Magistrate Judge Gershon conducted a hearing to determine whether the prosecutor was aware of the existence of these records. Based on the testimony at the hearing, Magistrate Judge Gershon concluded that, during the second trial, the prosecutor was unaware of the existence of these records. Report at 5-7.
Second, the Report finds that the prosecutor had no duty to correct Patricia Burkett's testimony that Burkett could read. Order at 13. The Report emphasized that although Burkett told Investigator Fredricksen that she could not read, Burkett also stated that she could read things that she saw every day. Order at 12. Thus, Magistrate Judge Gershon found that "it is clear that Burkett's reading ability is a matter of degree." Id. Therefore, the Report rejected petitioner's claim because "Burkett did not in the interviews in any way suggest that the testimony as to her ability to read the name 'Dennis' was false." Id. at 12-13.
Third, the Report rejected petitioner's claim that Burkett committed perjury when she testified that two police officers approached her and warned her not to testify because petitioner had ties with the Mafia. In fact, the Report quoted statements that Burkett made during her interview with Investigator Fredricksen that were consistent with her testimony at trial:
Investigator: Alright, before the trial did you tell [the prosecutor] about the two police officers that approached you on the street[.]