The record does not show that Benfante tried throughout the
trial to find the three witnesses but failed because of
investigative incompetence. Rather, Benfante began to seek out
Gonzalez and Garcia but, during the course of the trial,
apparently made a tactical decision not to call the witnesses.
Moreover, there is no evidence in the record that trial counsel
ever sought out Chiusano. The state court's finding that these
witnesses could have been located through the exercise of due
diligence came in the context of the post-trial attempt of a
different attorney to win a new trial based on an alternative
trial strategy that focused on impeaching Modica and Torres' time
line. Ordinarily, decisions as to trial strategy, including which
witnesses to call, fall entirely within trial counsel's
professional discretion. Nothing on the record or in habeas
counsel's submissions overcomes the "strong presumption" that
Benfante's performance fell within the "wide range of reasonable
professional assistance." Strickland, 466 U.S. at 689, 104
S.Ct. at 2065.
On the contrary, a review of the record compels agreement with
the trial judge that Benfante put on a vigorous, threepronged
defense that very well could have been credited by the jury, but
simply was not. Benfante presented medical evidence which
included the record of a clinic visit just two days before the
shooting in an effort to show that petitioner's arthritis was so
severe that he could not physically participate in the murder. As
has already been described at length above, Benfante also
presented a forceful attack on Modica and Torres' identifications
based on inconsistencies in the testimony they gave at various
stages of the prosecution and on physical evidence, such as his
comparison of the two guns. Finally, Benfante presented a
witness, Luftim Cira, who confessed to the crime before the jury.
In light of this comprehensive, albeit unsuccessful, trial
strategy, counsel's argument that Benfante's failure to present
the time line evidence of Chiusano, Garcia and Gonzalez was
objectively unreasonable, in effect, invites a habeas court to
indulge in precisely the type of hindsight judgment that
Strickland requires habeas courts to studiously avoid.*fn54
The invitation is declined.
Despite Sami Leka's claim of actual innocence, there is little
evidence to support the claim and much to negate it, including an
implausible alibi.*fn55 The fact
that the proof adduced at trial was not overwhelming does not
establish that the jury's verdict resulted in the conviction of
an innocent man. In any case, absent a constitutional violation,
petitioner's claim of actual innocence is not a ground for habeas
relief. See Herrera v. Collins, 506 U.S. 390, 404, 113 S.Ct.
853, 862-63, 122 L.Ed.2d 203 (1993). Petitioner, however, has not
shown that he was convicted due to impermissible identification
procedures, nor has he shown a violation of the prosecution's
duty to disclose exculpatory evidence or ineffective assistance
of counsel at trial.
Accordingly, the petition is denied. A certificate of
appealability will not issue since petitioner has not made a
substantial showing of the denial of a constitutional right.
See 28 U.S.C. § 2253(c) (Supp. 1999); Soto v. United States,
185 F.3d 48, 51 & n. 3 (2d Cir. 1999). The Clerk of the Court is
directed to enter judgment and close the case.
MEMORANDUM AND ORDER DENYING PETITIONER'S MOTION FOR A
CERTIFICATE OF APPEALABILITY
The strange facts of this case arise out of a feud within the
Albanian immigrant community of Brooklyn.*fn1 In 1990,
petitioner Sami Leka ("Leka") was convicted in New York Supreme
Court for the feud-related murder of his brother-in-law's
father-in-law. On November 30, 1999, this court issued a Revised
Memorandum and Order, denying Leka's application for a writ of
habeas corpus. See Leka v. Portuondo, 76 F. Supp.2d 258
(E.D.N.Y. 1999). The order also declined to issue a certificate
of appealability because petitioner had not made a substantial
showing of the denial of a constitutional right. See
28 U.S.C. § 2253 (Supp. 1999). By letter brief dated December 8, 1999,
petitioner moves the court to reconsider its denial of a
certificate of appealability. Specifically, petitioner argues
that he has made a substantial showing that the prosecution
violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963), by allegedly suppressing the testimony of the
former police officer Wilfredo Garcia ("Garcia"). For the reasons
that follow, this court will adhere to its previous ruling.
The factual background of this case has been fully detailed in
this court's Revised Memorandum and Opinion, familiarity with
which will be assumed. Petitioner argues that, with respect to
Garcia, he has made a sufficient showing of both suppression and
materiality to warrant a certificate of appealability on the
alleged Brady violation.
In order to find a "substantial showing" of a denial of a
constitutional right within the meaning of 28 U.S.C. § 2253, an
appeal must present at least one issue (1) that is "debatable
among jurists of reason;" (2) "that a court could resolve in a
different manner;" (3) that is "adequate to deserve encouragement
to proceed further;" or (4) that is not "squarely foreclosed by
statute, rule, or authoritative court decision, or . . . [that]
is not lacking any factual basis in the record." Barefoot v.
Estelle, 463 U.S. 880, 893 n. 4, 103 S.Ct. 3383, 3394 n. 4, 77
L.Ed.2d 1090 (1983); accord Lozada v. Deeds, 498 U.S. 430, 432,
111 S.Ct. 860,
862, 112 L.Ed.2d 956 (1991).*fn2 As discussed below, petitioner
does not meet the substantial showing standard with respect to
either the suppression or materiality of the Garcia evidence.
Although petitioner acknowledges that a defendant cannot
satisfy the suppression requirement if the defendant, directly or
through counsel, "`either knew, or should have known, of the
essential facts permitting him to take advantage of [that]
evidence,'" United States v. Zackson, 6 F.3d 911, 918 (2d Cir.
1993) (quoting United States v. LeRoy, 687 F.2d 610, 618, (2d
Cir. 1982)) (alteration added), petitioner argues that this
court's recital of the facts surrounding defense counsel's
opportunity to interview Garcia focused on a collateral issue.
Petitioner asserts that Brady and its progeny place an
"affirmative duty" on the prosecution to disclose exculpatory or
impeachment evidence and that, as a result, it is irrelevant
whether defense counsel could have gained access to Garcia by
means independent of the prosecutorial disclosure. Letter from
Michael S. Sommer to Chambers of 12/8/99, at 2-3 [hereinafter
Pet.'s Letter Br.]. Petitioner claims that the prosecutor did not
meet its affirmative duty because "there was no disclosure at all
of what Garcia had seen." Id. at 3.
Petitioner's argument is mistaken both as to the law under
Brady and as to the facts of the alleged suppression. The
Second Circuit has, indeed, noted that "[u]nder Brady and its
progeny, the [prosecution] has an affirmative duty to disclose
favorable evidence known to it, even if no specific disclosure
request is made by the defense." United States v. Payne,
63 F.3d 1200, 1208 (2d Cir. 1995) (citing Kyles v. Whitley,
514 U.S. 419, 115 S.Ct. 1555, 1565, 1567-68, 131 L.Ed.2d 490 (1995);
United States v. Agurs, 427 U.S. 97, 108-110, 96 S.Ct. 2392,
2399-2401, 49 L.Ed.2d 342 (1976)). However, the Second Circuit
has clarified that its holding in Zackson announces an
exception to the definition of "suppression" and, hence, to the
prosecutor's disclosure duty under Brady:
Nonetheless, evidence is not considered to have
been suppressed within the meaning of the Brady
doctrine if the defendant or his attorney "`either
knew, or should have known, of the essential facts
permitting him to take advantage of [that]
evidence.'" United States v. Zackson, 6 F.3d 911,
918 (2d Cir. 1993) (quoting United States v. LeRoy,
687 F.2d 610, 618 (2d Cir. 1982), cert. denied,
459 U.S. 1174, 103 S.Ct. 823, 74 L.Ed.2d 1019 (1983)).
Thus, where a defendant and his codefendant had
agreed to share information about their respective
cases, and the defendant's attorney had made
representations indicating his awareness of the
codefendant's cooperation with the prosecution, the
government's failure to disclose a government agent's
statements concerning the scope of that cooperation
was not a suppression within the meaning of Brady.
See United States v. Zackson, 6 F.3d at 919. See
also United States v. Diaz, 922 F.2d 998, 1007 (2d
Cir. 1990) (no Brady violation by nondisclosure of
witness's testimony as to a fact within personal
knowledge of defendant), cert. denied,
500 U.S. 925, 111 S.Ct. 2035, 114 L.Ed.2d 119 (1991); United
States v. Esposito, 834 F.2d 272, 275 (2d Cir. 1987)
(no Brady violation where defendant had possession
of transcripts containing the pertinent material).
Documents that are part of public records are not
deemed suppressed if defense counsel should know of
them and fails to obtain them because of lack of
diligence in his own investigation.
See, e.g., United States v. Bermudez, 526 F.2d 89,
100 (2d Cir. 1975) (state's investigative files were
not suppressed since defense counsel, who represented
one of the defendants in the state proceedings, could
have discovered them "with the exercise of due
diligence"), cert. denied, 425 U.S. 970, 96 S.Ct.
2166, 48 L.Ed.2d 793 (1976).
Payne, 63 F.3d at 1208-09; see also id. at 1209 (discussing
whether facts of the case demonstrated that "the government's
duty to produce [a particular] affidavit was eliminated by
that document's availability in a public court file" (emphasis
added)). Thus, the Second Circuit has made it clear that the
prosecutor's duty under Brady is affirmative only in the sense
that the prosecutor must disclose material exculpatory or
impeachment evidence to the defense even in the absence of a
specific request by the defense. Contrary to petitioner's
argument, the Brady duty is not affirmative in the sense that a
prosecutor's failure to disclose evidence qualifies as a
constitutional error even if the evidence was already in the
possession of the defense or was, upon exercise of reasonable
diligence, available to the defense through other sources.