The opinion of the court was delivered by: LEVY
LEVY, United States Magistrate Judge:
Petitioner pro se brings this action pursuant to 28 U.S.C. § 2254(a) for a writ of habeas corpus. By order dated March 18, 1997, the Honorable Reena Raggi, United States District Judge, referred this matter to me for a report and recommendation. For the reasons set forth below, I respectfully recommend that the petition be denied.
In 1989, the Kings County District Attorney charged petitioner, under Indictment Number 296/89, with two counts of murder in the second degree (N.Y. Penal §§ 125.25(1) and (2)), one count of criminal possession of a weapon in the second degree (N.Y. Penal § 265.03), one count of criminal possession of a weapon in the third degree (N.Y. Penal § 265.02(4)), and one count of reckless endangerment in the first degree (N.Y. Penal § 120.25). The jury trial commenced November 13, 1989 in New York Supreme Court, Kings County, before the Honorable Michael R. Juviler.
At trial the prosecution alleged that on January 1, 1989, petitioner, acting in concert with two other men, fired numerous shots at the door of 121 Clermont Avenue in Brooklyn causing the death of Doris Smith. (Trial Tr. 19-27.)
According to the prosecution, the three men believed that Doris Smith's son, David Smith, who also lived at 121 Clermont Avenue, had raped their friend Sandra Bridgette. (Id. at 23-24.) The prosecution's key witnesses were Sandra Bridgette and David Smith.
Ms. Bridgette, a cooperating witness who was twenty-three years old at the time, testified that she had known petitioner all her life. (Id. at 374-75) Ms. Bridgette stated that on December 31, 1988, she and an acquaintance named David Smith were smoking crack cocaine in Mr. Smith's bedroom at 121 Clermont Avenue. (Id. at 383-87.) At approximately midnight, Ms. Bridgette was attempting to leave the apartment (id. at 388) when Mr. Smith allegedly choked her, put a knife to her throat, and sexually assaulted her. (Id. at 390-92.) According to Ms. Bridgette, she then ran outside, met her friend Dennis Martin, and told him of the alleged assault. (Id. at 395-96.) Ms. Bridgette testified that immediately upon hearing her account of the incident, Mr. Martin left and returned fifteen minutes later with two men whom Ms. Bridgette knew to be Mr. Martin's friends: petitioner and a person named "Reggie." (Id. at 396-98.) Ms. Bridgette said that she then led the three men to David Smith's house, where Mr. Martin knocked on the door. (Id. at 398-402.) Immediately after Mr. Martin knocked on the door, Ms. Bridgette testified that the lights in the house went out, and she heard petitioner tell her to "move," after which he allegedly said "Fuck it man. Let's blast the place." (Id. at 402.) Ms. Bridgette stated that she then ran across the street, stopped, turned back around, and witnessed "Raynard, Reggie and Dennies [sic] shooting at the house." (Id. at 405.) She testified that she heard "a number of shots" (id. at 406) and specifically saw petitioner, who was standing approximately seventeen feet from the front door, point his gun at the house. (Id. at 405, 409.)
Mr. Smith denied Ms. Bridgette's accusation concerning the assault, but admitted to having smoked crack cocaine with Ms. Bridgette on December 31, 1988. Mr. Smith testified that, at his mother's request, he had asked Ms. Bridgette to leave, whereupon she became agitated and threatened that Mr. Smith would "pay for this." (Id. at 201). Approximately two hours later, Mr. Smith allegedly heard a "loud knocking" on the front door of the house. (Id. at 203). He testified that he looked out of a window to see who was knocking and saw "three male blacks," including petitioner, in front of the house. (Id. at 204-211.) Mr. Smith stated that his mother, Doris Smith, went to the front door and said "he's not here," after which Mr. Smith heard "multiples of shots" and observed bullets going through the door and his mother falling to the floor. (Id. at 214-17.) Mr. Smith identified petitioner in a police line-up on January 4, 1989. (Id. at 221-22.)
The prosecution also called as witnesses David Smith's brother and sister, Robert Smith and Peggy Smith, who testified that they heard gunshots but were unable to see the faces of the persons in the yard the night of the incident. (Id. at 95-96, 145-47.) In addition, the prosecution called two New York City police detectives and one New York City Housing Authority police officer who had conducted an investigation of the crime (id. at 39-48, 53-86, 534-42), a ballistics expert (id. at 545-67), and the medical examiner who performed the autopsy on Doris Smith's body. (Id. at 335-67.)
The defense called one witness, New York City Police Detective Jose Nieves, who testified that on January 4, 1989 a number of people, including a witness named Lisa Mena, had viewed a police line-up at the eighty-eighth precinct in Brooklyn containing six men, including petitioner. (Id. at 583-84.) Lisa Mena's name was included on the prosecution's witness list and, before the prosecution rested its case, the Assistant District Attorney had represented to the court that he planned to call Lisa Mena to testify.
However, the prosecution later informed the court that Ms. Mena had failed to appear and that its efforts to locate her had been unsuccessful.
The court denied defense counsel's application, as well as defense counsel's request for a missing witness charge. (Id.) Instead, the court instructed the jury
(1) on the content of Ms. Mena's statement to the police,
and (2) that Ms. Mena did not identify petitioner in a police line-up. (Id. at 611-13.)
The jury found petitioner guilty of murder in the second degree (N.Y. Penal § 125.25(2)) and not guilty on the remaining counts. (Id. at 820.) On December 11, 1989, the court sentenced defendant to a term of imprisonment of twenty-three and one-half years to life. See People v. Metts, Ind. No. 296/89, Decision and Order Denying Motion to Vacate Judgment at 1 (Kings County Aug. 10, 1995).
By memorandum and order dated June 8, 1992, the Appellate Division unanimously affirmed the judgment against petitioner. People v. Metts, 184 A.D.2d 592, 584 N.Y.S.2d 644 (2d Dep't 1992). The court found unpreserved for appellate review petitioner's claim that the trial court should have conducted a hearing to determine whether Lisa Mena's testimony would have provided exculpatory evidence because defendant had failed to request such a hearing and had agreed to an instruction that the court then read to the jury concerning Ms. Mena's potential testimony. 584 N.Y.S.2d at 645. The court also held that the verdict was not against the weight of the evidence, the sentence imposed was not excessive, and defendant's other contentions were without merit. Id.
By letter dated June 22, 1992, petitioner sought leave to appeal to the New York Court of Appeals, again arguing that the trial court should have conducted a hearing to determine whether Lisa Mena possessed exculpatory material. On August 14, 1992, the Court of Appeals denied petitioner's application. People v. Metts, 80 N.Y.2d 907, 602 N.E.2d 240, 588 N.Y.S.2d 832 (N.Y. 1992).
By submissions dated March 15 and 16, 1995, and supported by a reply affidavit dated July 20, 1995, petitioner moved pro se in the New York Supreme Court, Kings County, for an order vacating the judgment pursuant to N.Y. Crim. P.L. §§ 440.10(1)(b), (g) and (h). Petitioner argued that (1) the prosecutor improperly postponed disclosure of Lisa Mena's identity; (2) the instructions to the jury did not cure the effect of Ms. Mena's unavailability as a witness; and (3) an affidavit of Ms. Mena constituted newly discovered evidence showing that the prosecution fraudulently misrepresented at trial that it had contacted Ms. Mena.
By decision and order dated August 10, 1995, Justice Juviler denied petitioner's motion to vacate his judgment of conviction. People v. Metts, Ind. No. 296/89, Decision and Order Denying Motion to Vacate Judgment at 5 (Kings County Aug. 10, 1995) ("Aug. 10, 1995 Order"). The court held that petitioner's first two claims were procedurally barred from review because defendant failed to raise those claims at trial. Id. at 3. The court also found that petitioner's third claim was without merit because Ms. Mena's affidavit provided no exculpatory evidence, "the defense-requested instruction to the jury at trial was of far more value to the defendant than is the proffered affidavit," and the record "squarely contradicted" defendant's claim of fraudulent misrepresentation. Id. at 4-5.
On August 28, 1995, petitioner sought leave to appeal from the decision denying his motion to vacate the judgment. On November 22, 1995, the Appellate Division denied petitioner's application. People v. Metts, 94-08357, Decision and Order on Motion (2d Dep't Nov. 22, 1995) ("Nov. 22, 1995 Order").
On August 15, 1996, petitioner filed the instant application for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254(a). In his application, petitioner contends that his conviction was improperly procured through prosecutorial misconduct resulting in his inability to call Lisa Mena as a witness on his behalf at trial. (Petitioner's Memorandum of Law in Support of Petition for Writ of Habeas Corpus, dated Aug. 7, 1996 ("Pet'r Mem."), at 1-2.) Petitioner presents two principal claims of prosecutorial misconduct. He asserts that the prosecution (1) improperly postponed disclosure of Lisa Mena's address and telephone number, and (2) fraudulently misrepresented that Ms. Mena would appear as a witness at trial. (Id. at 4-6.) His claims are predicated, in part, on the affidavit of Ms. Mena obtained after the trial in which she states: "I was never contacted by the police or [the] district attorney." (Id. at 3; Id., Exhibit B, Affidavit of Lisa Mena, sworn to Mar. 9, 1994 ("Mena Aff.")) Petitioner also postulates that Ms. Mena's testimony could potentially have affected the jury's verdict had either the prosecution or the defendant called her to testify at trial. (Id. at 4.)
In opposition, respondent urges the court to deny the petition for two reasons. First, respondent argues that petitioner's claim that the prosecution improperly postponed disclosure of Lisa Mena's identity is barred from federal habeas review, since the state court rejected the claim on procedural grounds. Second, respondent maintains that petitioner's claim of fraudulent misrepresentation is without merit. (Respondent's Memorandum of Law in Support of Affidavit in Opposition to Petition for a Writ of Habeas Corpus, dated Dec. 9, 1996 ("Resp't Mem."), at 1.)