prosecution had a duty to produce such information, Ms. Mena's police statement alone was sufficient for petitioner to assess whether to object to the proposed jury instruction or otherwise register a protest. Unlike the state officials in Dobbs and Parkus, the prosecution did not act in a manner that impaired petitioner's ability to recognize a constitutional issue. Therefore, petitioner fails to demonstrate cause for his procedural default.
Even where a petitioner can show cause for a procedural default, he or she must also demonstrate prejudice. Gray, 116 S. Ct. at 2080; Coleman, 501 U.S. at 749-50. Petitioner has the burden of showing "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady, 456 U.S. 152, 170, 71 L. Ed. 2d 816, 102 S. Ct. 1584 (1982). In his petition, Metts argues conclusorily that "the prosecutor's interference with petitioner's right to locate, interview, and present Lisa Mena as a witness in this case was extremely prejudicial." (Pet'r Mem. at 6.) Nonetheless, on petitioner's motion to vacate the judgment of conviction, the trial judge held that Ms. Mena's affidavit revealed that she would have "no relevant testimony to provide." Aug. 10, 1995 Order at 4. The court found further that "there is 'no probability that had such evidence been received at trial the verdict would have been more favorable to the defendant'" than the jury instruction regarding Ms. Mena's statement to the police. Id. (quoting N.Y. Crim. P.L. § 440.10(1)(g)).
In reviewing an application for a writ of habeas corpus, "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). See also Chapman v. Vanzandt, 1997 U.S. Dist. LEXIS 9645, No. 96 CIV. 6940(JGK), 1997 WL 375668, at *4 (S.D.N.Y. July 8, 1997) ("district court should presume that a determination of a factual issue by a state court is correct"); Hughes, 967 F. Supp. at 779 (state court's "factual determination . . . entitled to a presumption of correctness"). Petitioner has the burden of rebutting the state court's factual holding by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). See also Chapman, 1997 U.S. Dist. LEXIS 9645, 1997 WL 375668, at *4 ("petitioner has not presented any evidence to rebut the presumption of correctness of the state court's finding... [that] there is no constitutional violation under Brady").
Petitioner fails to present any evidence to contradict, let alone rebut by clear and convincing evidence, the state court's factual finding that Ms. Mena's testimony was not relevant and would not have been more favorable to the defense than Justice Juviler's charge to the jury. Furthermore, petitioner fails to demonstrate that his inability to examine Ms. Mena on the witness stand "infected his trial with prejudice of constitutional dimensions." Accordingly, petitioner cannot meet his burden of demonstrating prejudice.
b. Fundamental Miscarriage of Justice
The court may also excuse a procedural default, even without a showing of cause and prejudice, where a "fundamental miscarriage of justice" has resulted. Coleman, 501 U.S. at 750. The fundamental miscarriage of justice exception "seeks to balance the societal interests in finality, comity, and conservation of scarce judicial resources with the individual interest in justice that arises in the extraordinary case." Schlup, 115 S. Ct. at 865.
Under the fundamental miscarriage of justice exception, petitioner must show through "new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not presented at trial" that "it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Schlup, 115 S. Ct. at 865-66. See also McCleskey v. Zant, 499 U.S. 467, 494, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991) (exception applies in a "narrow class of cases" where "a constitutional violation has caused the conviction of one innocent of the crime"); Kuhlmann v. Wilson, 477 U.S. 436, 454 n. 17, 91 L. Ed. 2d 364, 106 S. Ct. 2616 (1986) (petitioner required to establish by a "fair probability that . . . the trier of the facts would have entertained a reasonable doubt of his guilt"); Murray, 477 U.S. at 495-96 (a fundamental miscarriage of justice occurs "in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent"). The exception "is available only where the petitioner can supplement his constitutional claim with 'a colorable showing of factual innocence.'" Romero v. Senkowski, 950 F. Supp. 573, 578 (S.D.N.Y. 1996) (quoting Kuhlmann, 477 U.S. at 454). See also Borrego v. United States, 975 F. Supp. 520, 1997 WL 528050, at *5 (S.D.N.Y. 1997) ("actual innocence" exception applies to non-capital cases only where petitioner demonstrates by clear and convincing evidence that he is innocent of the facts necessary to impose his sentence).
Petitioner claims that Lisa Mena's police report statements and post-trial affidavit constitute evidence of his innocence. (Pet'r Mem. at 7.) However, petitioner fails to present "new reliable evidence" of his innocence as required by Schlup. See also Romero, 950 F. Supp. at 578-79 (fundamental miscarriage of justice exception inapplicable where petitioner failed to present "new reliable evidence"). Ms. Mena's affidavit presents no direct evidence of petitioner's innocence; the affidavit merely states that Ms. Mena "could not see [the] faces" of the "black or hispanic" males at 121 Clermont Avenue the night of the incident (Mena Aff.), not that petitioner did not commit the crime. Therefore, petitioner presents no evidence that compels this court to conclude that this case is one of few where the convicted prisoner was "actually innocent" of the crime. Petitioner's improper concealment claim is thus procedurally barred from habeas review.
2. Fraudulent Misrepresentation
Petitioner also claims that the prosecution fraudulently misrepresented that Lisa Mena would be called to testify at trial. (Pet'r Mem. at 6.) He contends that the prosecution's representations that it had contacted Ms. Mena were "subterfuge on the part of the District Attorney's office" intended to prevent petitioner from calling the witness. (Id. at 2.) Respondent argues that petitioner's claim of fraudulent misrepresentation lacks merit because a state court's findings are presumptively correct, and the alleged misconduct "did not rise to the level of denying petitioner due process rights." (Resp't Mem. at 8-9.)
Justice Juviler heard petitioner's claim of fraudulent misrepresentation on petitioner's motion to vacate his judgment of conviction. The court held that "the isolated allegation contained within the affidavit that Ms. Mena was never contacted by a 'district attorney' and was not asked to testify at a hearing or trial is squarely contradicted by the record and is insufficient to support the defendant's claim that the judgment of conviction 'was procured by duress, misrepresentation, or fraud on the part of . . . a prosecutor.'" Aug. 10, 1995 Order at 4 (quoting N.Y. Crim. P.L. § 440.10(1)(b)). The Appellate Division denied leave to appeal. Nov. 22, 1995 Order. Because Justice Juviler's decision on petitioner's fraudulent misrepresentation claim was on the merits -- and was not based on an independent and adequate state procedural default -- this court may assume that the Appellate Division also affirmed on the merits. See Epps, 13 F.3d at 618 ("where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground"). Since the last state court to address this issue denied the claim on the merits, it is not procedurally barred from federal habeas review. See Coleman, 501 U.S. at 740.
As discussed above, however, a factual finding made by a state court is presumptively correct unless petitioner rebuts the finding by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). Therefore, the state court's finding that petitioner's fraudulent misrepresentation claim lacks factual merit is presumptively correct. Petitioner has the burden of rebutting this finding by clear and convincing evidence. Id.
The only evidence defendant provides to substantiate his claim of fraudulent misrepresentation by the prosecution is Lisa Mena's affidavit. As explained, Ms. Mena states in her affidavit that she was "never contacted by the police or district attorney . . . to testify at any hearing or trial." (Mena Aff.) On petitioner's motion to vacate, Justice Juviler found that "the isolated allegation contained within the affidavit that Ms. Mena was never contacted by a 'district attorney' and was not asked to testify at a hearing or trial is squarely contradicted by the record." Aug. 10 Order at 4. Justice Juviler thus evaluated the credibility of the prosecution's in-court statements that it had contacted Ms. Mena (Trial Tr. at 505, 543, 568) and Ms. Mena's contradictory statement that the district attorney never contacted her. (Id.) The court then made a reasonable factual finding that Ms. Mena's out-of-court, hearsay affidavit was less reliable than the statements of a district attorney acting as an officer of the court. Moreover, in denying defense counsel's request for a missing witness charge at trial, the court found that the prosecution had provided sufficient evidence of Ms. Mena's unavailability. Petitioner fails to offer any evidence, let alone "clear and convincing" evidence, to rebut Justice Juviler's findings on this point.
However, even assuming, arguendo, that the prosecution misrepresented that it had contacted Ms. Mena and had arranged for her to appear as a witness at trial, petitioner's claim fails on the merits. The standard of review for a claim of prosecutorial misconduct is "whether the prosecutor engaged in 'egregious misconduct . . . amounting to a denial of constitutional due process.'" Blissett, 924 F.2d at 440 (quoting Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990)). See also United States v. McCarthy, 54 F.3d 51, 55 (2d Cir.), cert. denied, 516 U.S. 880, 116 S. Ct. 214, 133 L. Ed. 2d 145 (1995); McEachin v. Ross, 951 F. Supp. 478, 481 (S.D.N.Y. 1997). Prosecutorial misconduct "denies a defendant due process only when it is 'of sufficient significance to result in the denial of the defendant's right to a fair trial.'" Id. (quoting Greer v. Miller, 483 U.S. 756, 765, 97 L. Ed. 2d 618, 107 S. Ct. 3102 (1987)). Prosecutorial misconduct does not amount to a denial of the right to a fair trial unless petitioner shows a "reasonable probability" of a different result absent the alleged misconduct. Cf. Kyles v. Whitley, 514 U.S. 419, 434, 131 L. Ed. 2d 490, 115 S. Ct. 1555 (1995) ("A 'reasonable probability' of a different result is accordingly shown when the Government's evidentiary suppression 'undermines confidence in the outcome of the trial'") (quoting United States v. Bagley, 473 U.S. 667, 678, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985)).
Petitioner argues that, by representing that it intended to call Ms. Mena, the prosecution "denied [him] due process of law and the right to present witnesses on his behalf at trial." (Pet'r Mem. at 2.) However, even assuming for the sake of argument that the prosecution did make misrepresentations to the court regarding Ms. Mena's unavailability, such misrepresentations did not prevent petitioner from calling Ms. Mena as a witness on his own behalf. Petitioner had Ms. Mena's police statement and knew well in advance of the trial that Ms. Mena had failed to identify him in the police line-up. Petitioner could have pursued finding Ms. Mena himself, or requested a court order pursuant to N.Y. Crim. P.L. § 240.40 to compel the prosecution to release her address and telephone number. Furthermore, even if the alleged misrepresentation had in some way prevented petitioner from calling Ms. Mena on his own, as discussed above, Ms. Mena's affidavit reveals that she possessed no information that would have been more favorable to petitioner than the jury instruction regarding her potential testimony. Aside from petitioner's bare speculation that "no one knows how Lisa Mena would have testified had the district attorney not made her unavailable" (Id.), petitioner proffers no facts to show a "reasonable probability" of a different outcome had the prosecution not made the alleged misrepresentation.
Accordingly, petitioner fails to demonstrate a denial of his constitutional right to due process as required to grant his petition for habeas corpus on the merits.
For the reasons stated above, the undersigned respectfully recommends that the petition for a writ of habeas corpus be denied.
Objections to this report and recommendation must be filed within ten (10) days, with a courtesy copy to Judge Raggi, in order to preserve appellate review. See 28 U.S.C. § 636(b)(1).
ROBERT M. LEVY
United States Magistrate Judge
DATED: Brooklyn, New York
November 25, 1997