court erred in discharging a juror; (5) prosecutorial misuse of peremptory challenges. That motion was denied.
On April 16, 1990, the petitioner moved the Supreme Court of Wyoming County for a writ of habeas corpus claiming prosecutorial misconduct in knowingly introducing perjured testimony and in suppressing Rosario and Brady material. The motion was denied.
On July 23, 1990, he moved for the eighth time to vacate his conviction again alleging that: (1) a juror was improperly discharged; (2) an erroneous jury charge, and (3) erroneous evidentiary rulings. This motion was denied.
On February 18, 1991 he moved the Supreme Court, Kings County for a writ of habeas corpus claiming (1) wrongful bolstering of identification testimony; (2) withheld Rosario and Brady material; (3) erroneous jury charge; (4) defective indictment and other frivolous assertions. That application was denied.
The mere recital of the litigation spawned by this criminal bespeaks, I respectfully suggest, an egregious abuse of our judicial system. How many times must a convicted defendant be permitted to relitigate the same issues? At what point, if ever, is finality of litigation reached? And the incredible tolerance of this person's litigious propensities has only just begun to be tested. Now comes his assault upon the federal judiciary.
On November 22, 1982 a petition was filed pursuant to 28 U.S.C. § 2254 in the Southern District in which the petitioner alleged ineffective assistance of trial and appellate counsel and insufficiency of evidence to prove his guilt. In an opinion and order dated February 21, 1985, Judge Haight rejected each of his claims on the merits and denied his petition.
On March 10, 1986, he again moved for relief pursuant to 28 U.S.C. § 2254, raising the following claims: (1) The failure of the prosecution to instruct the grand jury on affirmative defenses; (2) insufficiency of the indictment; (3) speedy trial violation; (4) failure to suppress his post-arrest statement; (5) prior criminal record wrongfully admitted to impeach; (6) excessiveness of sentence. In a memorandum and order dated February 24, 1988, this court dismissed his application on the ground that he failed to exhaust his state remedies.
In 1989 he moved again for the same relief and by order dated May 31, 1989 this court returned his petition because it was incomprehensible and instructed him to clarify it. He refiled his application and by order dated June 29, 1989 this court dismissed his application as an abuse of the writ.
In 1990, he moved for the fourth time for the same relief. On June 15, 1990 this court once again dismissed the petition as an abuse of the writ.
On March 2, 1993, Moates applied for the fifth time for the same relief, claiming, for the first time, that he was acquitted by the jury of the murder counts at his first trial and therefore, his second trial on those counts impermissibly put him in jeopardy twice for the same offenses. In a memorandum and order dated September 22, 1992, this court once again dismissed his petition as an abuse of the writ.
As was indicated at the outset, this petition is before the court again because it was remanded here by the Court of Appeals to "allow the government to respond" for the sixteenth time to his post-conviction claims for relief, many of which were repetitive.
This petition is, once again, dismissed as an abuse of the writ. He has raised the double jeopardy issue at least twice in the state courts reflecting his awareness of it and could have raised that issue in any or all of his four earlier petitions here. That he has abused the writ and the processes of this and the state courts should be convincingly established by the mere recitation of the litigation he has brought following his conviction. The citation of McCleskey v. Zant, 499 U.S. 467, 493-94, 111 S. Ct. 1454, 1470, 113 L. Ed. 2d 517 (1991) to support that conclusion is surely superfluous.
In addition to being an abuse of the writ, the petition must be denied because his double jeopardy claim is procedurally barred; is without merit; and advanced upon petitioner's assertions which are flagrantly false and known by him to be false.
The double jeopardy claim was not raised by him in his direct appeal from his conviction. See Respondent's Exhibit M. The petitioner claimed he was twice put in jeopardy in his first three motions brought pursuant to § 440.10, N.Y. Cr. Pr. L. See Respondent's Exhibits D, E and F. The highest court of the state was thus not afforded the opportunity to pass on that claim. Were he to attempt to litigate that claim again pursuant to § 440.10, N.Y. Cr. Pr. L., state law would mandate its dismissal for the reason that it could have been raised on direct appeal but was not. N.Y. Cr. Pr. L., § 440.10(2)(c). See Respondent's Exhibits G, H, I (the Supreme Court, Kings County explicitly rejected those claims in his first three motions on the ground that they should have been raised on direct appeal); see also Arce v. Smith, 889 F.2d 1271, 1273 (2d Cir. 1989), cert. denied, 495 U.S. 937, 110 S. Ct. 2185, 109 L. Ed. 2d 513 (1990); Grey v. Hoke, 933 F.2d 117, 119-21 (2d Cir. 1991).
Particularly egregious, however, is his blatantly false assertion that he was acquitted of the murder charges at his first trial. The official records of the state courts, in addition to the petitioner's own understanding of the declaration of a mistrial at the end of his first trial as reflected in his prior motions in the state courts, establish beyond a doubt that the jury in the first trial was unable to reach a verdict on the murder counts. Respondent's Exhibits D, E, J, K, L, M.
The court reaffirms its decision of September 22, 1992 that the petitioner has abused the writ and its decision of October 10, 1992 denying his request for a certificate of probable cause.
I. Leo Glasser
United States District Judge
Dated: Brooklyn, New York
May 21st, 1996
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