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PENICK v. FILION

April 2, 2001

SEAN PENICK, PETITIONER,
V.
GARY FILION, RESPONDENT.



The opinion of the court was delivered by: Gershon, District Judge.

ORDER

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.

SO ORDERED.

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.

BACKGROUND

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 allegations.

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 542.

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.
Defendant's claim of a violation of due process is also without merit. "Only recantations of material testimony that would most likely effect the verdict rise to the level of a due process violation if a state alerted to the recantation, leaves the conviction in place." (Sanders v. Sullivan, 863 F.2d 218, 225.) Thus having found the recantation to be neither credible nor reliable and that it would have had no impact on the trial, due process does not demand a hearing to investigate the complainant's credibility.
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 without comment.

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 witnesses.

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 ...


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