The opinion of the court was delivered by: Feldman, United States Magistrate Judge.
On August 10, 1993, following a jury trial in Ontario County
Court, Stephens was found guilty of Criminal Sale of a Controlled
Substance in the Third Degree and Criminal Possession of a
Controlled Substance in the Fifth Degree. The charges against
Stephens arose from his September 2, 1992 sale of a quantity of
crack cocaine to Wayne County Deputy Sheriff Russell Stein who,
at the time of the sale, was acting in an undercover capacity.
The drug transaction was conducted in the presence of a police
informer (Linda Manino) and surveilled by another deputy sheriff
(John Storer). The drug sale was also recorded on audio tape.
On September 1, 1993, Stephens was sentenced to a term of
imprisonment of six to eighteen years by Ontario County Court
Judge James M. Harvey. On that same day Stephens also entered a
guilty plea to two other narcotic related indictments. As to each
of these indictments, Stephens was sentenced to two independent
terms of imprisonment of one to three years. Judge Harvey ordered
each term of imprisonment to be served consecutively. Thus,
Stephens total sentence for all three convictions was a term of
imprisonment of eight to twenty-four years of incarceration.
Stephens is currently serving his sentences.
The Fourth Department of the Appellate Division affirmed
Stephens' conviction on direct appeal, People v. Stephens,
219 A.D.2d 854, 632 N.Y.S.2d 906 (4th Dep't 1995), and thereafter the
New York Court of Appeals denied him leave to appeal, People v.
Stephens, 87 N.Y.2d 851, 638 N.Y.S.2d 610, 661 N.E.2d 1392
(1995). Stephens also filed a motion pursuant Article 440 of New
York's Criminal Procedure Law seeking to vacate his convictions
on the basis of prosecutorial and police misconduct. Judge Harvey
denied the Article 440 motion on August 11, 1995. On October 30,
1995, the Hon. Reuben K. Davis, Associate Justice of the
Appellate Division, Fourth Department, denied Stephens'
application for leave to appeal the denial of his Article 440
In his habeas petition, Stephens alleges five grounds for
relief. First, Stephens alleges prosecutorial misconduct
involving the failure to disclose exculpatory evidence regarding
police informant Linda Manino. Second, Stephens alleges that the
prosecutor used false and perjured evidence at trial. Third,
Stephens claims that the prosecutor improperly withheld discovery
regarding scientific test results. Fourth, Stephens claims his
sentence was excessive. Finally, Stephens claims his Sixth
Amendment right to counsel was violated when the trial judge
refused his lawyer's request to be relieved as his attorney.
Stephens appears to have exhausted his state court remedies as to
all of the issues presented in his petition and therefore, this
Court will consider the merits of his claims.
The prosecution's constitutional duty to disclose material
evidence favorable to the defense applies not only to exculpatory
evidence, but also to evidence that could be used to impeach
prosecution witnesses. Giglio v. United States, 405 U.S. 150,
154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). Only material
evidence is constitutionally required to be disclosed. Evidence
is material "if there is a reasonable probability that had the
evidence been disclosed to the defense, the result of the
proceeding would have been different." Kyles v. Whitley,
514 U.S. 419, 433, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). A
"reasonable probability" of a different result is shown when the
evidence suppressed "undermines confidence in the outcome of the
trial." Id. Impeachment evidence may be considered material
where the witness in question supplied the only evidence linking
the defendant to the crime. United States v. Avellino,
136 F.3d 249, 257 (2d Cir. 1998).
Based on the foregoing, even assuming arguendo that Stephens'
allegations are true,*fn2 the Manino impeachment evidence is not
sufficiently material so as to require habeas corpus relief.
Although Manino was a prosecution witness who helped police set
up the drug transaction for which Stephens was found guilty at
trial, there was other powerful evidence linking Stephens to the
September 2, 1992 drug trafficking offense. Indeed, Stephens was
found guilty of selling crack cocaine directly to Russell Stein,
a Wayne County Sheriff Deputy who was acting in an undercover
capacity at the time of the sale. Moreover, this "hand to hand"
buy was recorded by Stein through use of a "body wire" and the
resulting tape recording was identified by Stein and introduced
as direct evidence against Stephens at his trial. The strength of
this independent evidence of Stephens' guilt "increases the
degree of significance that would need to be ascribed to the
withheld impeachment evidence in order for it reasonably to
undermine confidence in the verdict." United States v. Orena,
145 F.3d 551, 559 (2d Cir. 1998). In light of the overwhelming
independent evidence of Stephens' guilt, I find that there does
not exist a "reasonable probability" of a different outcome in
the trial had the Manino impeachment evidence been revealed.
Accordingly, Stephens is not entitled to habeas corpus relief on
2. Use of False Evidence: Stephens' second claim is that the
prosecutor "introduced a fabricate (sic) tape recorded
conversation and transcript to the jury." Habeas Corpus Petition
at page 12. Stephens offers no substantive factual support for
this claim and the Court is unable to find any support in the
record. There being no apparent legal or factual basis for this
allegation, Stephens is not
entitled to habeas corpus relief on this ground.
3. Disclosure Regarding Scientific Test Results: Stephens'
third claim is that the prosecutor failed to provide him with
discovery regarding the testing and calibration of the equipment
used by the chemist who tested the cocaine and testified for the
prosecution. Prior to trial, defense counsel moved to compel
production of such data in a pre-hearing motion pursuant to New
York Criminal Procedure Law § 240.20(c). The trial court denied
the motion, ruling that under People v. Rosario 9 N.Y.2d 286,
213 N.Y.S.2d 448, 173 N.E.2d 881 (1961), the prosecution was ...