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MAGNOTTA v. BERRY

November 9, 1995

DENNIS MAGNOTTA, Petitioner, against CARL BERRY, as superintendent of Woodbourne Correctional Facility and THE ATTORNEY GENERAL OF THE STATE OF NEW YORK, Respondents.

David N. Edelstein, U.S.D.J.


The opinion of the court was delivered by: EDELSTEIN

EDELSTEIN, District Judge:

 Petitioner Dennis Magnotta ("petitioner") seeks a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. *fn1" Petitioner challenges his New York State Supreme Court convictions for four counts of sodomy in the first degree, three counts of rape in the first degree, one count of attempted rape in the first degree, and two counts of robbery in the first degree. Petitioner was sentenced to and is serving concurrent prison terms of six to eighteen years for each of the sodomy and rape counts, nine to eighteen years for the robbery counts, and four to twelve years for the attempted rape count. This Court referred the instant petition to then United States Chief Magistrate Judge Nina Gershon ("Magistrate Judge Gershon") for a Report and Recommendation ("the Report"). *fn2"

 Petitioner's convictions stem from four alleged separate sexual assaults on prostitutes that occurred between September and October 1983. Petitioner's alleged modus operandi during each of these four episodes was largely the same.

 The first prostitute, Mary Battle ("Battle"), claimed that in the summer of 1983, petitioner, who was driving a black Lincoln Continental, approached her and offered her $ 40 in exchange for oral sex. (Tr. 202-05, 213.) *fn3" Battle agreed and entered petitioner's car, and he gave her the money. (Tr. 202-05.) Battle saw that petitioner had a name plate on the dashboard of his car, bearing the name "Dennis Magnotta." (Tr. 213-14.) After Battle entered the car, petitioner pulled out a knife and a gun and threatened to kill her if she tried to escape. (Tr. 206-08.) Petitioner also ordered Battle to give him back the $ 40 and give him any other money she had. (Tr. 207.) Battle did as petitioner ordered. (Tr. 207.) Petitioner then drove north on the Westside Highway and continued driving until he reached a parking lot that Battle thought was located in Mount Vernon, New York. (Tr. 209.) Still threatening her with the gun, petitioner forced her to perform oral sex. (Tr. 211.) Next, petitioner ordered Battle out of the car and told her not to attempt to escape. (Tr. 212.) During this time, petitioner threatened Battle with the gun and a blackjack. (Tr. 212.) After exiting the car, however, Battle noticed two pedestrians nearby, and she screamed for help. (Tr. 212.) Petitioner got back into his car and sped off quickly. (Tr. 213.) Battle, who had memorized petitioner's license plate number, called the Mount Vernon police. (Tr. 213.) After the police came, Battle went to the police station and told the police what had happened. (Tr. 216-17.)

 The second prostitute, Nancy Brooks ("Brooks"), testified at trial that in late September 1983, petitioner, who was driving a dark blue Lincoln Continental, approached her and offered her $ 25 in exchange for oral sex. (Tr. 134, 142.) Brooks entered petitioner's car. Petition told Brooks that his name was "Dennis," and Brooks saw a name plate on petitioner's dashboard, which bore the name "Dennis Magnotta." (Tr. 143, 151.) Petitioner then paid Brooks, and Brooks performed oral sex on petitioner. (Tr. 135.) Thereafter, petitioner pulled out a gun and told Brooks not to move. (Tr. 136-38.) Petitioner proceeded to drive north for approximately two hours, and while he was driving, petitioner snorted a white powder. (Tr. 140-41.)

 Brooks claimed that petitioner stopped his car in the parking lot of the Quality Inn in Hawthorne, New York, and handcuffed her to the steering wheel. (Tr. 142-44.) Petitioner then returned to the car, took Brooks to a room at the Quality Inn, and proceeded to rape and sodomize Brooks for several hours. (Tr. 140-49.) After spending approximately five hours at the hotel, petitioner took Brooks back to the car and drove back to Manhattan. (Tr. 149-52.) Petitioner then ordered Brooks to give him all of her money. (Tr. 152-54.) Brooks handed petitioner approximately $ 350, and petitioner returned a small amount of this money to Brooks. (Tr. 152-54.) Petitioner then let Brooks leave the car in Manhattan, and Brooks telephoned the Hawthorne and Poughkeepsie police. (Tr. 155.)

 The third prostitute, Michele Slater ("Slater") testified that on October 1, 1983, petitioner, who was driving a black Lincoln Continental, approached her and offered her money in exchange for oral sex. (Tr. 255-57.) As Slater entered petitioner's car, petitioner pushed her inside and pointed a gun at her. (Tr. 256-58.) Slater testified that she saw a name plate which bore the name "Dennis Magnotta" inside petitioner's car. (Tr. 264.) After parking at several locations, petitioner drove to a highway in Manhattan and then drove north. (Tr. 259-61.) While driving, petitioner snorted cocaine. (Tr. 262, 265.)

 After driving for approximately two hours, petitioner parked the Lincoln outside a hotel, handcuffed Slater to the steering wheel, and entered the hotel. (Tr. 264-65, 271-72.) Slater attempted to blow the car's horn, but the horn did not sound. (Tr. 266.) Thereafter, petitioner returned to the car, and led Slater at gunpoint into a room at the hotel. (Tr. 266-68.) In this room, petitioner opened a briefcase that contained a knife, a rope, some wire, and another gun. (Tr. 270-71.) Petitioner also took out a blackjack and hit Slater with it. (Tr. 271.) In the hotel room, petitioner raped and sodomized Slater. (Tr. 269-73.) After approximately four hours, petitioner and Slater returned to petitioner's car, and he drove to Manhattan, where petitioner released her. (Tr. 271, 273-74.) After going to her home and taking a shower, Slater went to a police precinct on 54th Street, spoke with a police sergeant who had arrested her on several occasions for loitering, and filed a complaint. (Tr. 274-76.)

 The fourth prostitute, Patricia Burkett ("Burkett"), testified that on October 2, 1983, petitioner, who was driving a black Lincoln Continental, approached her. (Tr. 47-49, 70.) Burkett asked petitioner if he wanted a date, and he said that he did. (Tr. 48-49.) Burkett entered petitioner's car, and petitioner agreed to pay Burkett $ 30 for oral sex. (Tr. 49.) Burkett testified that she saw a name plate on petitioner's dashboard, which bore the name "Dennis," although she stated that she could not recall the last name on the name plate. (Tr. 70.) Petitioner then pulled out a gun and pointed the gun at Burkett, warning her not to move or he would shoot her. (Tr. 53-54.) Petitioner then proceeded to drive North on the Westside Highway for approximately two hours, and during this time petitioner snorted a white powder. (Tr. 54-58.) Petitioner stopped near the hotel and put Burkett in the trunk of his car (Tr. 58-59.). After about ten minutes, petitioner removed Burkett from the trunk of his car and handcuffed her to the steering wheel. (Tr. 59.) Petitioner entered the hotel, and he returned shortly and led Burkett into a room at the hotel. (Tr. 59.)

 In the hotel room, petitioner repeatedly raped and sodomized Burkett. (61-66.) Burkett observed that petitioner possessed a gun, a switch-blade knife, and a blackjack. (Tr. 64.) Moreover, while in the room, petitioner handcuffed Burkett to the shower, handcuffed her to the bed, struck her with a blackjack, and threatened to kill her. (Tr. 60-62.) Throughout this time, petitioner continued to snort a white powder. (Tr. 65-67.)

 After spending approximately an entire day in the hotel room, petitioner and Burkett returned to the car and drove to Manhattan. (Tr. 68-69.) Petitioner then parked the car and forced Burkett to perform oral sex. (Tr. 67-68.) Petitioner then took all of Burkett's money and left her between 95th and 96th Streets. (Tr. 69.) Burkett proceeded to walk to 42nd Street, where she flagged down the patrol car of two police officers she knew. (Tr. 70-71.) The officers spoke with Burkett for several hours and then brought her to a hospital. (Tr. 71, 94, 477.)

 On October 11, 1983, Burkett saw petitioner driving a black Lincoln Continental in Manhattan. (Tr. 71-72, 113-114.) Burkett immediately flagged down an unmarked police car and explained to the officers that the man in the black Lincoln had "kidnapped" her. (Tr. 72.)

 The police arrested petitioner, and after searching petitioner and his car, they found a gun, a switchblade knife, and a set of handcuffs. (Tr. 513-16, 551-54.) The police also found a name plate bearing the name "Dennis Magnotta" in the passenger compartment of petitioner's car. (Tr. 517.) On October 18, 1983, Nancy Brooks and Michele Slater separately identified petitioner in a lineup. (Tr. 165, 283-89.)

 Petitioner was brought to trial in New York State Supreme Court. During petitioner's trial, however, prosecutor Margaret Finnerty ("the prosecutor") failed to produce two of the complaining witness, Patricia Burkett and Nancy Brooks. (April 3, 1985, Afternoon Tr. 4-5.) The prosecutor stated that she was surprised that these witnesses did not appear, and she asked the court to grant her an adjournment so that she could locate these witnesses and bring them to court. (April 3, 1985, Morning Tr. 338-42.) Defense counsel moved for a mistrial, arguing that because the prosecutor had repeatedly referred to these witnesses in her opening statement his client faced substantial prejudice. (April 3, 1985, Afternoon Tr. 6-7.) Although defense counsel stated that he did not believe that the prosecutor had acted in bad faith, counsel argued that the prosecutor bore the responsibility for the witnesses' failure to appear, particularly because each witnesses was not under subpoena and had not been served with a material witness order. (April 3, 1985, Afternoon Tr. 15.) The court declared a mistrial. (April 3, 1985, Afternoon Tr. 15-16.)

 Thereafter, petitioner was retried and convicted on ten counts. Petitioner appealed his conviction to the Supreme Court Appellate Division, which unanimously affirmed petitioner's conviction without opinion. See People v. Magnotta, 127 A.D.2d 452, 510 N.Y.S.2d 998 (1st Dep't 1987). Petitioner then sought leave to appeal to the New York State Court of Appeals, which denied petitioner leave to appeal. People v. Magnotta, 69 N.Y.2d 883, 515 N.Y.S.2d 1031, 507 N.E.2d 1101 (1987).

 Thereafter, petitioner hired a private investigator named Otis Steven Fredricksen ("Investigator Fredricksen"). Investigator Fredricksen interviewed three of the complaining witnesses: Mary Battle, Nancy Brooks, also known as Nancy Rische, and Patricia Burkett, also known as Carol Burkett. Petitioner contends that during these interviews, Brooks and Burkett each made statements that contradicted her trial testimony. Petitioner contends that these statements demonstrate that the prosecutor intended to goad petitioner into seeking a mistrial, suppressed material evidence, suborned perjury, and engaged in serious prosecutorial misconduct. In addition, because police officer Alton McCabe had testified at trial that he was unable to locate certain records from the Elmsford Motel ("the Elmsford"), which was the scene of one of the rapes, Investigator Fredricksen went to the Elmsford Motel to search for these missing records. Petitioner's counsel states that Investigator Fredricksen found the missing records together with a note that stated that the assistant district attorney will "call tonight." (February 28, 1990, Affidavit of B. Anthony Morosco at 4-5.)

 Based on this new information, petitioner moved to vacate his convictions, pursuant to Article 440.10 of the New York Criminal Procedure Law. The trial judge denied petitioner's motion, and the Appellate Division denied leave to appeal.

 DISCUSSION

 Before proceeding to the substance of petitioner's claims, two issues must be noted. First, all of petitioner's claims are within the scope of 28 U.S.C. § 2254. Petitioner raises a double-jeopardy claim, raises claims that the prosecution failed to provide petitioner with material evidence prior to trial, raises claims that the prosecution knowingly used perjured testimony, and raises a claim that the prosecutor engaged in prosecutorial misconduct. Each of these claims asserts that petitioner's convictions violate the Constitution of the United States, and thus, that he is being held in custody in violation of the Constitution of the United States. See 28 U.S.C. § 2254 ("a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States").

 Second, petitioner has exhausted his state-court remedies. Before bringing a § 2254 petitioner, a petitioner must exhaust his state-court remedies. See Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) ("A federal court may not grand a writ of habeas corpus to a state prisoner 'unless it appears that the applicant had exhausted the remedies available in the courts of the State. . . .'") (quoting 28 U.S.C. § 2254(b)), cert. denied, 131 L. Ed. 2d 316, 115 S. Ct. 1436 (1995); Daye v. Attorney General, 696 F.2d 186, 190 (2d Cir. 1982) (en banc). In the instant case, petitioner contends that he exhausted his state-court remedies; respondents do not challenge petitioner's contention; and Magistrate Judge Gershon's Report found that petitioner exhausted his state-court remedies. After reviewing all of the relevant documents in this case, this Court finds that petitioner exhausted his state-court remedies.

 Having disposed of these initial matters, this Court will analyze each of petitioner's claims in turn.

 1. Double Jeopardy

 The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution states that "no person shall be . . . subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. amend. V; see also Oregon v. Kennedy, 456 U.S. 667, 671, 72 L. Ed. 2d 416, 102 S. Ct. 2083 (1982) ("The Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from repeated prosecutions for the same offense.") (citation omitted). The Due Process Clause of the Fourteenth Amendment extends double-jeopardy protection to a defendant in a state criminal proceeding. Benton v. Maryland, 395 U.S. 784, 793-96, 23 L. Ed. 2d 707, 89 S. Ct. 2056 (1969). Double-jeopardy protection embodies the fundamental policy "that the State with all of its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.'" United States v. Rivera, 802 F.2d 593, 597 (2d Cir. 1986) (quoting Green v. United States, 355 U.S. 184, 187-88, 2 L. Ed. 2d 199, 78 S. Ct. 221 (1957)), judgment aff'd, 812 F.2d 713 (2d Cir. 1987) (Table). "As a part of this protection against multiple prosecutions, the Double Jeopardy Clause affords a criminal defendant a 'valued right to have his trial completed by a particular tribunal.'" Kennedy, 456 U.S. at 671-72 (quoting Wade v. Hunter, 336 U.S. 684, 689, 93 L. Ed. 974, 69 S. Ct. 834 (1949)). This right, however, is not absolute. "The Double Jeopardy Clause . . . does not offer a guarantee to the defendant that the State will vindicate its societal interest in the enforcement of the criminal law in one proceeding." 456 U.S. at 672 (citations omitted).

 In assessing whether a double-jeopardy violation has occurred, courts distinguish between cases in which a defendant objects to the declaration of mistrial and cases in which a defendant requests the declaration of a mistrial. If a defendant objects to the declaration of a mistrial, the Double Jeopardy Clause bars a retrial unless there is a manifest necessity for declaring a mistrial, "the classic example of which is a hung jury." Rivera, 802 F.2d at 597 (citing United States v. Perez, 22 U.S. (9 Wheat.) 579, 580, 6 L. Ed. 165 (1824)). In contrast, a defendant who requests a mistrial is only entitled to double-jeopardy protection if "the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial." Rivera, 802 F.2d at 598. Although the Double Jeopardy Clause protects "a defendant against governmental actions intended to provoke mistrial requests," United States v. Dinitz, 424 U.S. 600, 611, 47 L. Ed. 2d 267, 96 S. Ct. 1075 (1976), the mere fact that the Government's actions provide a defendant with the grounds for seeking and receiving a mistrial is insufficient for double-jeopardy protection to attach. See Kennedy, 456 U.S. at 675-76. Rather, "only where the government conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Id. (emphasis added).

 In the instant case, Petitioner contends that his second trial, at which he was convicted, violated his right not to be put in jeopardy twice for the same offense. Although petitioner moved for a mistrial and obtained one at the first trial, petitioner contends that the prosecutor intentionally sought to goad petitioner into seeking this mistrial. Petitioner argues that "the prosecutor misrepresented that two witnesses [Nancy Brooks and Pat Burkett] would appear when in fact they would not and the prosecutor knew or should have known that they were not going to appear." (Petitioner's Memorandum of Law in Support of Petition ("Petitioner's Memo") at 2.) Petitioner contends that the prosecutor sought a mistrial in order "to obtain a new start of trial that was going poorly, and to obtain a more favorable trial judge in the retrial of the matter." Id. at 2.

 Petitioner asserts that several facts demonstrate that the prosecutor knew that these witnesses would not appear. First, petitioner argues that, despite the prosecutor's statement that these witnesses had indicated that they would appear, the prosecutor knew that Nancy Brooks did not intend to appear at the trial. (Petitioner's Petition [for a writ of habeas corpus] ("Petition") at 5 ("Nancy Brooks told Investigator Fredricksen . . . that she told the prosecutor she would not testify.").) Second, petitioner contends that Brooks was not aware that the first trial had been scheduled at all. Id. at 6 ("Nancy Brooks also indicated in her interview with Investigator Fredricksen that she did not know when the first trial was to take place. . . ."). Third, petitioner asserts the prosecutor misrepresented to the Court that Brooks had never missed a previous appointment. Id. at 7. Petitioner asserts that "Brooks told [Investigator] Fredricksen that she had often failed to keep her appointments with the district attorney's office." Id. at 7 (citation omitted). Fourth, petitioner notes that neither Brooks nor Burkett was served with either a subpoena or a material witness order. Id. at 4-5.

 The Report rejected petitioner's double-jeopardy claim, stating that "the record before this court does not provide any evidence that the prosecutor intentionally provoked the defendant into requesting a mistrial." Order at 9. The Report found that "the investigator's interviews with the witnesses, assuming them to be accurate, do not contradict the prosecutor's representations that she believed the witnesses would appear." Id. The Report noted that the prosecutor stated that Burkett and Brooks "had confirmed that they would testify only one week before the trial" and that "Brooks had never failed to appear for a scheduled appointment or proceeding." Order at 9. Magistrate Judge Gershon concluded that "the facts presented here do not support a conclusion that the prosecutor acted in bad faith with intent to provoke a mistrial." Id. at 10.

 After reviewing the trial transcript and the transcripts of Investigator Fredricksen's interviews, this Court finds that the Report's double-jeopardy finding is neither clearly erroneous nor contrary to law. *fn4" See 28 U.S.C. § 636(b)(1) (district court will uphold a magistrate's report and recommendation unless it is clearly erroneous or contrary to law).

 None of petitioner's four arguments demonstrates that the prosecutor sought to goad petitioner into seeking a mistrial. First, petitioner's contention that "Nancy Brooks told Investigator Fredricksen . . . that she told the prosecutor she would not testify," (Petition at 5), is not supported by the evidence. Although the transcript of Brooks's interview with Investigator Fredricksen establishes that Brooks did not intend to appear at the first trial, it does not indicate that the prosecutor was aware of Brooks's intention. On the contrary, in the interview, Brooks states that, during a conversation with the prosecutor, Brooks agreed to testify, despite the fact that Brooks had no intention of fulfilling this agreement. (December 10, 1987, Fredricksen Interview with Rische *fn5" at 19 (Brooks states: "Like I told you, I don't I never paid any mind she'd tell me to come in there down there so and so morning at nine o'clock and I'd yeah ok ok. . . .").).

 Petitioner's contention that Brooks told the prosecutor that Brooks would not testify is a conclusion drawn from an extremely selective reading of the transcript of Investigator Fredricksen's interview with Brooks. In support of his contention, petitioner cites a portion of interview between Brooks and Investigator Fredricksen. (Petitioner at 5.) However, a review of this portion of the transcript demonstrates that petitioner has taken Brooks's remark out of context and that petitioner's claim is meritless:

 
[Q]: Did you tell them you wouldn't testify[?]
 
[A]: Yes I did. They use to call me at my other number where, the number that they had the first time[.]
 
[Q] Um hmm[.]
 
[A] and I told them I didn't want to be bothered, to leave me alone and they continued and she pushed it, came to my job and got me[.]
 
[Q] No, no what I'm what I'm asking you is the first trial.

 Id. at 5-6. Thus, although petitioner argues that Brooks answered "yes" when Investigator Fredricksen asked her "did you tell them you wouldn't testify[?]," when this passage is read in context, it is abundantly clear that Brooks is stating that she would not appear at the second trial, not the first. Therefore, petitioner's claim is without merit.

 Second, petitioner wrongly asserts that "Nancy Brooks . . . indicated in her interview with investigator Fredricksen that she did not know when the first trial was to take place." (Petition at 6.) In fact, during her interview with Investigator Fredricksen, Brooks stated alternatively that she did not remember whether the prosecutor had told her about the first trial, that the prosecutor had not told her about the first trial, and that the prosecutor had told her about the first trial. (December 10, 1987, Fredricksen Interview with Rische at 7 (when Investigator Fredricksen asked Brooks, "did they tell you there was a trial going on," Brooks stated, "I don't remember")); id. at 12 (when Investigator Fredricksen asked Brooks, "did you know there was a trial going on the first time," Brooks stated "I don't I didn't know anything"); id. (in a colloquy with Investigator Fredricksen about whether the prosecution told Brooks's about the first trial, Brooks stated, "they told me, they told me that that was happening yeah"). Brooks's entirely contradictory statements regarding this matter--which include a statement that the prosecutor told Brooks about the first trial--do not establish that the prosecutor failed to inform Brooks about the first trial as part of an attempt to goad petitioner into moving for a new trial.

 Third, petitioner contends that, contrary to the prosecutor's assertion that Brooks had never missed an appointment, "Brooks told [Investigator] Fredricksen that she had often failed to keep her appointments with the district attorney's office." Id. at 7 (citation omitted). Although Brooks stated in her interview with Fredricksen that she repeatedly missed appointments with the prosecutor, Brooks's statement fails to distinguish between the first and second trials. Despite Brooks's vagueness, however, Brooks's interview testimony does not contradict the prosecutor's assertion at the first trial. At the first trial, the prosecutor represented to the Court that she had met with Brooks on two occasions. (April 3, 1985, Afternoon Tr. at 6.) Although Brooks stated that her recollection was faulty, Brooks indicated during her interview with Investigator Fredricksen that she had met with the prosecutor twice, prior to the first trial. ((December 10, 1987, Fredricksen Interview with Rische at 19.) ("I don't remember when I met her. I don't remember. . . . I met with her I think twice maybe even once."). Moreover, the prosecutor represented to the Court that Brooks had appeared before the Grand Jury, and had appeared for petitioner's line-up. (April 3, 1985, Morning Tr. 341.) Petitioner's counsel at the first trial did not object to this representation; Brooks's interview testimony does not cast doubt on this representation; and petitioner has not challenged this representation in the instant petition. Thus, petitioner's claim that Brooks missed appointments in the past is solely based on Brooks's nebulous interview testimony, which does not distinguish between the first and second trials, which fails to mention any specific instance when Brooks failed to appear prior to the first trial, and which fails to contradict any of the representations that the prosecutor made at the first trial.

 Fourth, petitioner asserts that neither Brooks nor Burkett was served with either a subpoena or a material witness order to appear at the first trial. (Petition at 4-5.) Although the prosecutor's failure to serve each witness with a subpoena or a material witness order was careless, it does not demonstrate that the prosecutor acted in bad faith to procure a mistrial. In fact, Brooks was subpoenaed to appear at the first trial, but the trial was postponed and prosecutor failed to subpoena Brooks to appear for the rescheduled date. (April 3, 1985, Morning at 340-41.) While petitioner has demonstrated that the prosecutor erred in failing to subpoena two witnesses, petitioner has not demonstrated that the prosecutor acted in bad faith.

 Petitioner's assertion that the prosecutor sought to goad petitioner into seeking a mistrial is based only on speculation. As previously noted, "only where the government conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion." Kennedy, 456 U.S. at 675-76 (emphasis added). In the instant case, petitioner has merely speculated that the prosecutor sought a mistrial in order "to obtain a new start of a trial that was going poorly, and to obtain a more favorable trial judge in the retrial of the matter." (Petitioner's Memo at 2.) Petitioner has produced no evidence to support this speculation, and petitioner has not even attempted to explain why the "trial was going poorly" or why the prosecutor might not view the first trial judge as "favorable." In fact, petitioner all but concedes that he is merely speculating that the prosecutor sought a new trial in order to obtain a favorable judge: "it may reasonably be assumed that the prosecutor in this case recognized that the chance for conviction was greater before a Judge other than [the judge at the first trial]." (Reply Memorandum of Petitioner at 3 (emphasis added).) Petitioner's assumptions are no substitute for evidence.

 Petitioner's argument is further undermined by a statement that petitioner's counsel at the first trial made moments before the court declared a mistrial. At that time, petitioner's trial counsel stated: "I might just add, your Honor, that . . . I have no problem with [the prosecutor] . . . . I think she is a person of very high ethical standards." (April 3, 1985, Afternoon Tr. at 7.) Thus, petitioner's own trial counsel represented to the court that he did not believe that the prosecutor had acted improperly.

 As the foregoing discussion demonstrates, petitioner has failed to show that the prosecution intended to goad the defendant into moving for a mistrial at the first trial. Petitioner's arguments to the contrary are based on a flawed reading of the transcripts of Investigator Fredricksen's interviews and on petitioner's own speculation regarding the prosecutor's motives. This Court finds that Magistrate Judge Gershon's Report correctly rejected petitioner's double-jeopardy argument. Therefore, this Court holds that petitioner is not entitled to § 2254 relief on double-jeopardy grounds.

 2. Alleged Brady Violations

 In Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), 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." Under the Due Process Clause of the Fourteenth Amendment, state prosecutors are subject to the Brady rule. United State v. Agurs, 427 U.S. 97, 107, 49 L. Ed. 2d 342, 96 S. Ct. 2392 (1976).

 In the years since the Court decided Brady, the Brady rule has expanded. Although Brady only addressed a prosecutor's duty to disclose exculpatory evidence, "impeachment evidence . . . as well as exculpatory evidence, falls within the Brady rule." United States v. Bagley, 473 U.S. 667, 676, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985) (citing Giglio v. United States 405 U.S. 150, 154, 31 L. Ed. 2d 104, 92 S. Ct. 763 (1972)). Moreover, Brady now extends to ...


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