The opinion of the court was delivered by: Gershon, District Judge.
Petitioner Sean Penick's petition for a writ of habeas corpus
was referred to the Honorable Roanne L. Mann, United States
Magistrate Judge, who held an evidentiary hearing and issued a
Report and Recommendation dated October 5, 2000 recommending
denial of the petition. Petitioner has objected to the Report
which is, therefore, reviewed de novo.
It is unnecessary to address petitioner's constitutional
argument that AEDPA violates Article III if read to foreclose
the Court from considering Circuit opinions as well as Supreme
Court opinions for, as Judge Mann well-stated in her Report,
even under Sanders v. Sullivan, 863 F.2d 218 (2d Cir. 1988),
the Second Circuit opinion on which petitioner relies,
petitioner has not established any constitutional violation in
connection with his conviction. At the evidentiary hearing,
Judge Mann gave petitioner the fullest opportunity to present
evidence. Based upon the evidence adduced at that hearing, I
agree with Judge Mann that Singletary's recantation was material
but that it was unreliable.
Amendment of the petition to allow a claim under Brady v.
Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), is
granted. However, for the reasons stated by Judge Mann, and even
treating all of the withheld material cumulatively, see Kyles
v. Whitley, 514 U.S. 419, 441, 115 S.Ct. 1555, 131 L.Ed.2d 490
(1995), the claim is without merit.
The petition for a writ of habeas corpus is denied. A
certificate of appealability is denied.
REPORT AND RECOMMENDATION
This petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, was referred to the undersigned by the Honorable
Nina Gershon for a report and recommendation. Thereafter,
petitioner Sean Penick ("petitioner" or "Penick") sought
permission to amend his petition to add a claim pursuant to
Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215
(1963). For the reasons that follow, this Court recommends
either that Penick be permitted to amend his petition and that
the amended petition be denied in its entirety, or that his
motion to amend and his original petition be denied.
The State Court Proceedings
Following a trial by jury in Kings County Supreme Court,
Penick was convicted of robbery in the first degree and
tampering with a witness in the third degree. On February 6,
1992, he was sentenced by Justice Joseph Slavin to consecutive
prison terms of six to twelve years on the robbery charge and
two to four years on the witness-tampering charge. Sentencing
Transcript dated February 6, 1992, at 19-20; Petitioner's
Memorandum in Support of Petition for Writ of Habeas Corpus
("Pet. Mem.") at 1. The prosecution was based on the complaint
of John Singletary ("Singletary"), who alleged that on April 7,
1991, petitioner, along with his co-defendants James Beard
("Beard") and Andre Ingram ("Ingram"), robbed him at gunpoint of
$550.00 in cash (Trial Transcript of December 1991 ["Trial Tr."]
at 104-10), and that on May 9, 1991, petitioner and Ingram
thrust a machinegun in his mouth and threatened to kill him
unless he dropped the charges. Id. at 116-19.
At trial, the prosecution called five witnesses on its direct
case: Singletary; Police Officers David Moskowitz and John
Kaiser, who responded to Singletary's 911 call on the day of the
robbery; Detective Ronald McClean, who investigated Singletary's
report that petitioner and Ingram had threatened him; and
Detective Robert Desmond, who investigated Singletary's robbery
Defense counsel cross-examined Singletary extensively about
his past crimes, which included: driving drunk into a parked
police car, and failing to pay the fine for the offense (id.
at 164, 166-69); keeping a gun in his home while on probation
(id. at 171-72); various burglaries (id. at 194-98),
including an armed burglary (id. at 199-200); and breaking the
window of a police car (id. at 201). Singletary was further
cross-examined regarding his suicidal tendencies, his alcoholism
and drug abuse, his hospitalization in 1985, and his drinking on
the day of the robbery. Id. at 146-47, 162-66, 204-05. In
addition, Singletary admitted on cross-examination that he
initially did not provide the officers investigating the robbery
with the names of any of his assailants, although he knew both
Ingram and petitioner. Id. at 191-92.
The defense theory at trial was that Singletary had been
walking in the defendants' neighborhood in the vicinity of a
playground, openly carrying a gun, and that Beard, a corrections
officer with the authority to seize an unlicensed firearm, took
the gun, and nothing more, from Singletary, with the assistance
of petitioner and Ingram. In support of this defense, the
criminal defendants called three witnesses who testified that it
was Singletary who was carrying a gun, which Beard, with the
help of petitioner and Ingram, removed from him. These three
witnesses were: Tanya Butler, a friend of Beard's wife, who also
knew petitioner and Ingram; Miguel Nieves, a friend of Beard's
and Ingram's; and co-defendant Andre Ingram. In addition,
petitioner called Police Officer Kelly Brown, whose testimony
impeached Singletary's explanation of an error in the police
report regarding the address of the incident. Compare id. at
389 with id. at 156.
In rebuttal, the prosecution introduced evidence about the
duties of a correction officer to turn over to his or her
supervisor or the local precinct any gun seized from a third
party; the rebuttal case also included testimony from Beard's
supervisor and from a sergeant from the 73rd Police Precinct
that Beard never turned in any gun. Id. at 516-33. The
prosecution also called Beard's wife, Marie Beard, who testified
that her husband had his gun with him
when he left their home on the date of the incident. Id. at
The jury was then charged and began deliberating. The jury
requested that five different portions of the transcript be
reread to them: (1) Singletary's testimony about how Beard
displayed his gun, and what Beard was wearing; (2) Singletary's
testimony regarding the alleged threat by Penick and Ingram to
induce him to drop the charges; (3) Butler's testimony regarding
the number of people at the scene of the alleged robbery and
whether or not Singletary had his dog with him; (4) Butler's
testimony regarding the gun allegedly possessed by Singletary;
and (5) Marie Beard's testimony about Beard's gun. Id. at
708-09. After nine hours of deliberation, the jury found
petitioner guilty on both charges against him; they also
convicted his co-defendants. Id. at 713-17.
On April 8, 1992, several months after petitioner's
sentencing, Singletary went to the 71st Precinct and partially
recanted his trial testimony to Detective Steve Litwin.
Singletary said that he had lied at trial and that the criminal
defendants had robbed him of a gun but had not taken any money.
See Exhibit ("Ex.") A, annexed to Pet. Mem.; Respondent's
Affidavit in Opposition to Petition for a Writ of Habeas Corpus,
dated December 19, 1997, at 4. Petitioner and his co-defendants
were not notified about the recantation until April 23, 1993,
when an Assistant District Attorney ("ADA") from the Appeals
Bureau wrote a letter to defense counsel disclosing the
recantation; the letter also stated that on April 22, 1992,
after speaking with the trial prosecutor, Singletary had
retracted his recantation, claiming that he had been drunk when
he made his recantation. Pet. Mem. Ex. A.
Almost two years later, on January 18, 1995, petitioner moved
to vacate his sentence based on Singletary's recantation,*fn1
arguing that "because the recantation was `material,' due
process entitled him to at least a hearing to assess the
recantation's reliability." Pet. Mem. at 18-19. The prosecution
opposed the application. In a written decision entered on
January 19, 1996 (see Pet. Mem. Ex. B), Justice Anne G.
Feldman denied petitioner's motion based on her review of the
record, holding that:
In this case the proffered evidence is far too
unreliable to have changed the verdict and would
merely tend to impeach the complainant's prior
testimony. Recantation evidence has been held to be
inherently unreliable and is insufficient alone to
require setting aside a conviction (see, People v.
Legette, 153 A.D.2d 760, 761, 545 N.Y.S.2d 296;
People v. Donald, 107 A.D.2d 818, 819,
484 N.Y.S.2d 651). Moreover the inherent shortcomings
of such evidence are enhanced here by the temporary
nature of the recantation and by the threats
against the complainant.
Accordingly, defendant's motion is denied
without a hearing.
Pet. Mem. Ex. B at 3-4. On February 23, 1996, petitioner applied
for leave to appeal Justice Feldman's decision to the Appellate
Division. The prosecution opposed petitioner's application and,
on March 21, 1996, Justice Thomas R. Sullivan of the Appellate
Division, Second Department, denied petitioner's application
The Evidentiary Hearing Before this Court
In his pending habeas petition, petitioner argues that, given
Singletary's allegedly material and reliable recantation of his
trial testimony, petitioner was denied due process when the
state court refused to vacate his conviction or even to order an
evidentiary hearing. In order to determine the reasonableness of
the state court's determination that Singletary's recantation
was neither reliable nor credible, this Court held an
evidentiary hearing on June 23 and June 30, 1999. See Grosso v.
Artuz, No. 97 Civ. 1623, 1998 WL 108011 (S.D.N.Y. March 12,
1998). Petitioner called Detective Steven Litwin ("Litwin"),
former Assistant District Attorney Barry Tempkin ("Tempkin"),
ADA Deanna Rodriguez ("Rodriguez"), Detective George Woods
("Woods"),*fn2 Beard, and Singletary. Respondent called no
According to Litwin, to whom Singletary orally recanted his
trial testimony, Singletary was upset and crying when he came to
the precinct to recant, and asked Litwin to call him an
ambulance because his head hurt. H. Tr. at 18, 21. Litwin did
not recall that Singletary appeared to be drunk. Id. at 21.
After Singletary's post-trial recantation, Tempkin, the trial
prosecutor, met with Singletary, who reaffirmed his trial
testimony, claiming that he had been drunk when he recanted.
Id. at 44. Tempkin had previously recognized Singletary's
vulnerabilities as a witness, and he, along with his colleagues,
had extensively cross-examined Singletary prior to trial. Id.
at 49-50. At the evidentiary hearing, Tempkin denied having
threatened, or promised benefits to, Singletary in connection
with either his trial testimony or his repudiation of the
recantation. Id. at 79-80. Rodriguez, Tempkin's supervisor at
the time of the trial, had also questioned Singletary following
his recantation and told him that nothing would happen to him if
he continued to recant his trial testimony. Id. at 100; see
id. at 81. Singletary had nonetheless repudiated his
recantation and reaffirmed his trial testimony. Id. at 100.
Tempkin testified that after trial, he was informed by one of
the investigating detectives that Singletary had made what the
detective believed to be false reports of threats on his life.
Id. at 39-40, 63.*fn3 Tempkin also acknowledged that he had
helped Singletary obtain public housing benefits and ...