trial. Beard provided the same account as Ingram, adding that he
disposed of the gun by throwing it off the Canarsie pier. Id.
at 124, 129-30.
This Court continues to entertain serious doubts about the
admissibility of Beard's testimony at an evidentiary hearing on
the reliability of a recantation as to which he had no
knowledge. Nevertheless, having allowed the testimony, and
having observed Beard's demeanor, this Court finds that the
implausibility of Beard's story tends to corroborate — rather
than undermine — Singletary's testimony at trial and at the
evidentiary hearing, by the permissible inference that the
opposite of Beard's testimony is true. If a witness is
disbelieved, the fact-finder "is free, on the basis of [the]
witness' demeanor, to `assume the truth of what he
denies'. . . ." United States v. Marchand, 564 F.2d 983, 986
(2d Cir. 1977) (quoting Dyer v. MacDougall, 201 F.2d 265, 268
(2d Cir. 1952)). The trial jury in this case apparently
disbelieved Ingram's testimony and, on that basis, and based on
the other trial evidence, found that Ingram and his
co-defendants robbed Singletary at gunpoint of $550.00. This
Court comes to the same conclusion.
Having considered the record in its entirety, including the
hearing testimony of Singletary and Beard, this Court finds no
basis on which to disturb the state court's finding that
Singletary's unsworn and repudiated recantation is unreliable.
Accordingly, the state court's determination that no due process
violation has occurred is a reasonable application of
established federal law, and Penick's petition should be denied.
II. Brady Claim
At the close of the evidentiary hearing, petitioner requested
permission to amend his petition to add a Brady claim. H. Tr.
at 188. Petitioner asked that his petition be amended to add the
claim that he had been "[d]enied due process when the State
withheld exculpatory evidence from the defense both at trial and
for the ensuing seven and one-half years." Notice of Motion to
Amend Habeas Corpus Petition, dated July 6, 1999 ("Motion to
Amend") at 1. Specifically, petitioner alleges that the State
withheld "crucial information concerning the credibility and
reliability" of Singletary, including information about cash
payments made to Singletary by the prosecution before and after
trial; assistance provided to him in connection with his own
arrests and in obtaining housing, welfare and other benefits;
false death threats reported by him to the police; his
commitment to a psychiatric facility at the request of the trial
prosecutor; Singletary's reluctance to press charges or testify;
and the prosecution's view of him as "manipulative" and
suffering from multiple psychoses. Id. at 1-2. Petitioner
contends that the withholding of the information prevented him
from fully cross-examining Singletary at trial, and that the
continued withholding of the information following Singletary's
recantation further prejudiced petitioner by preventing him from
raising his Brady claim in the state collateral proceeding.
Id. at 2.
A. Amendment of the Petition
"The Federal Rules of Civil Procedure apply to motions to
amend petitions for a writ of habeas corpus." Riley v. Taylor,
62 F.3d 86, 89-90 (3d Cir. 1995); see 28 U.S.C. § 2242 (a
petition for a writ of habeas corpus "may be amended or
supplemented as provided in the rules of procedure applicable to
civil actions."). Rule 15(a) of the Federal Rules of Civil
Procedure states that "a party may amend [its] pleading . . . by
leave of the court or by written consent of the adverse party,"
further provides that "leave shall be freely given when justice
so requires." Fed.R.Civ.P. 15(a). A number of factors justify a
court's denial of a motion to amend: "(1) undue delay; (2) bad
faith or dilatory motive; (3) undue prejudice to the opposition;
(4) repeated failures to correct deficiencies with previous
amendments; and (5) futility of the amendment." Riley, 62 F.3d
at 90; Espey v. Wainwright, 734 F.2d 748, 750 (11th Cir.
1984). Here, petitioner states that he was unaware of the
grounds for his Brady claim until disclosure was made in
connection with the evidentiary hearing before this Court. While
the State challenges that assertion in addressing the merits of
petitioner's Brady argument, it does not complain that
allowing the amendment would cause it undue prejudice.
Accordingly, the primary issue on this motion concerns the
futility of the proposed claim. Therefore, this Court will
examine the viability of petitioner's Brady claim.
B. Failure to Exhaust Brady Claim in State Court
As an initial matter, the Court must address the effect of
petitioner's failure to have presented his Brady claim at any
stage of the state court proceedings. A federal court may not
grant habeas relief to a state prisoner on the basis of claims
that have not been exhausted in state court. See O'Sullivan v.
Boerckel, 526 U.S. 838, 839, 119 S.Ct. 1728, 1730, 144 L.Ed.2d
1 (1999) ("Federal habeas relief is available to state prisoners
only after they have exhausted their claims in state court.").
Nevertheless, the AEDPA provides that "[a]n application for a
writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State."
28 U.S.C. § 2254(b)(2).*fn13 Although the legal standard for determining
when to reach the merits of an unexhausted claim has not been
articulated in the statute, or by the Supreme Court or Second
Circuit, see Velez v. Artuz, No. 97 Civ. 3040(BSJ), 2000 WL
328634, at *1 (S.D.N.Y. March 29, 2000), courts have exercised
their discretion and dismissed petitions on their merit where
the unexhausted claim was meritless, see Flores v. Greiner,
No. 97 CV 5671(RR), 2000 WL 1052054, at *9 n. 5 (E.D.N.Y. June
19, 2000), and was "inextricably intertwined" with a pending and
fully exhausted claim. Jackson v. Moscicki, 99 Civ. 2427(JGK),
2000 WL 511642, at *10 (S.D.N.Y. April 27, 2000). As
petitioner's Brady claim is meritless, see infra pp. 156-61,
and is intertwined with the reliability of Singletary's
recantation, this Court recommends that the Brady claim be
denied on the merits.
C. Merits of the Brady Claim
Under Brady, "the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution."
Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct. 1555, 1565, 131
L.Ed.2d 490 (1995) (quoting Brady, 373 U.S. at 87, 83 S.Ct. at
1196-97). The Brady doctrine embraces evidence that impeaches
a witness. Giglio v. United States, 405 U.S. 150, 153, 92
S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). "The evidence is material
only if there is a reasonable probability that, had the evidence
been disclosed to the defense, the
result of the proceeding would have been different." United
States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87
L.Ed.2d 481 (1985). "A `reasonable probability' of a different
result is . . . shown when the government's evidentiary
suppression `undermines confidence in the outcome of the
trial.'" Kyles, 514 U.S. at 434, 115 S.Ct. at 1566 (quoting
Bagley, 473 U.S. at 678, 105 S.Ct. at 3381).
1. Impeachment Evidence in Existence Before Trial
Here, much of the evidence cited by petitioner as part of his
Brady claim did not arise until after petitioner's trial,
and therefore, even the prompt disclosure of such evidence would
have had no effect on the trial itself. The impeachment evidence
that existed before trial but was not disclosed until the
evidentiary hearing consists of: (a) cash benefits and other
assistance provided to Singletary as part of his participation
in the witness protection program; (b) certain information
concerning Singletary's mental state, as reflected in the trial
prosecutor's (post-trial) memoranda stating that Singletary
suffered from multiple psychoses and was manipulative (Motion to
Amend Ex. A, B); and (c) Singletary's reluctance to testify.
a. Cash Benefits and Other Assistance. Petitioner complains
of the prosecution's failure to disclose the assistance provided
to Singletary by the District Attorney's Office. The records
reveal that Singletary received minimal benefits as part of his
participation in the witness protection program after he was
shot in the face on June 23, 1991. Specifically, Singletary
received $18 a day for meals during the period from August 5,
1991 through November 17, 1991; in total he received less than
$1,000.00 in monetary assistance (PX 4a-d, 4ah, 4aj-4au, 4ax),
as well as shelter at a hotel for varying time periods from July
29, 1991 through February 1992 (PX 4e, 4f, 4j-p, 4aaa).
Singletary periodically refused to remain in the witness
protection program (PX 4o, 4av, 4ay), returned unused meal money
(PX 4ah), and declined to stay at the hotel room reserved for
him (PX 4aaa).
The District Attorney's Office also wrote various letters to
assist Singletary: a letter dated October 8, 1991, requesting
that Singletary be permitted to receive public assistance
without revealing his address (PX 4i); letters dated November
20, 1991, January 14, 1993, and March 8, 1993, to the New York
City Housing Authority, requesting emergency housing and an
expedited transfer of housing (PX 4w-z, 4ae-f); a letter dated
March 8, 1993, to the Technical Career Institute, explaining
Singletary's absences from school due to his participation in
the witness protection program (PX 4x); and a letter dated
October 1, 1993, to the Social Security Administration,
regarding the food and shelter that was provided to Singletary
Early on in the trial, the state court ruled that the
prosecution would not be permitted to elicit testimony from
Singletary concerning his having been shot in the face on June
23, 1991. Trial Tr. at 66-68. In response to a question by
Penick's counsel, Singletary testified on cross-examination that
he was in the witness protection program. Trial Tr. at 204.
Although defense counsel could have asked Singletary about the
benefits that he was receiving as part of the program, he
understandably chose not to pursue this line of inquiry; he
apparently concluded that the value of any argument that
Singletary had concocted the robbery in order to receive de
minimis housing and cash benefits as a protected witness was
far outweighed by the prejudice of opening the door to testimony
regarding the reason for protective custody. See United States
Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987). ("Decisions
whether to engage in cross-examination, and if so to what extent
and in what manner, are . . . strategic in nature.").
Accordingly, as defense counsel had knowledge of this possible
line of impeachment, but chose not to pursue it at trial,
petitioner cannot now claim that the prosecution's failure to
provide detailed descriptions of the precise nature of the
benefits offered to Singletary constitutes suppression of
material evidence, in violation of Brady. See United States v.
Ruggiero, 472 F.2d 599, 603 (2d Cir. 1973) (failure to furnish
grand jury transcripts not a Brady violation where defense
counsel knew of likelihood that testimony would be favorable,
but nevertheless failed to call grand jury witnesses at trial);
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). Furthermore, the failure to disclose the routine
benefits provided to Singletary after he had been shot in the
head, possibly in retaliation for his grand jury testimony in
this case, are not material for Brady purposes. See Hernandez
v. Senkowski, No. 93-CV-5763 (FB), 1996 WL 285426, at *2
(E.D.N.Y. May 17, 1996) (no constitutional violation occurred
where prosecution failed to disclose "routine benefits provided
to a witness whose life was endangered by testifying. . . .").
b. Evidence Concerning Singletary's Mental State. Petitioner
concedes that he was aware of Singletary's psychiatric
hospitalizations, based on the pretrial disclosure of
Singletary's psychiatric records from hospitalizations in 1985
and 1991. Affidavit of Mitchell Briskey, Esq., dated July 6,
1999, at ¶ 5. Petitioner argues that the records do not "reveal
the `psychoses' Mr. Tempkin wrote about in 1992 and which Mr.
Singletary described at the hearing." Id. However, a
prosecutor is under no obligation to disclose his own subjective
impressions about a witness' testimony. See United States v.
Beasley, 442 F. Supp. 1152, 1157 (E.D.La. 1977); cf. United
States v. Pfingst, 490 F.2d 262, 274 n. 14 (2d Cir. 1973)
(Brady not violated by failure to disclose internal government
memorandum, of a "speculative nature," disclosing trial
tactics). Petitioner provides no legal support for the
admissibility of Tempkin's lay opinion of Singletary's mental
state and/or his alleged manipulative personality, and it seems
highly unlikely that such opinions would have been admitted.
See United States v. Delgado, 903 F.2d 1495, 1499 (11th Cir.
1990) (prosecutor's opinion about a co-defendant's guilt would
not be admissible under Fed.R.Evid. 403). Consequently,
disclosure of the information at issue could have had no direct
effect on the outcome of the trial. See Wood v. Bartholomew,
516 U.S. 1, 6, 116 S.Ct. 7, 10, 133 L.Ed.2d 1 (1995) (failure to
disclose inadmissible polygraph results did not violate
In any event, contrary to petitioner's suggestion, the
psychiatric records produced to Penick's attorney prior to trial
do in fact include the diagnosis "atypical psychosis," and
disclose "several previous psychiatric admissions" and evidence
of suicidal and homicidal ideation. See attachments to Letter
to Court dated August 17, 1999, from Mitchell J. Briskey, Esq.
Penick's trial counsel thus was on notice of Singletary's
history of psychosis. At trial, Penick's attorney sought to
highlight Singletary's substance abuse problems and erratic
behavior, rather than focus on psychiatric labels: on
cross-examination, Singletary acknowledged that he was
hospitalized in 1985 as a result of an alcohol and drug problem,
and that his hospitalization was precipitated by an incident in
which Singletary, high on cocaine, had asked a police
officer to shoot him. Trial Tr. at 204-05. Furthermore, defense
counsel apparently made the strategic decision not to
cross-examine Singletary at trial regarding his subsequent
hospitalization, in 1991 (see id. at 204): the trial court had
excluded evidence concerning the shooting that had led to the
depression and trauma revealed in the 1991 hospital records, and
to have examined Singletary about that hospitalization would
have run the risk of eliciting damaging testimony about the
shooting.*fn14 See id. at 87-88, 83 S.Ct. 1194.
Against this backdrop, it cannot be said that the failure to
have disclosed Temkin's subjective impression of Singletary's
mental state and personality constituted improper suppression of
Brady material. Moreover, inasmuch as the jury and the state
court had ample information impeaching Singletary's credibility,
there is no reasonable probability that, had Tempkin's personal
views been disclosed by the prosecution, the outcome of the
trial or post-trial proceeding would have been any different.
See United States v. Zagari, 111 F.3d 307, 320 (2d Cir. 1997)
(jury had sufficient information with which to evaluate witness'
credibility, and thus failure to disclose witness' mental
illnesses and neo-Nazi leanings did not violate Brady).
c. Singletary's Reluctance to Testify. Singletary testified
at the evidentiary hearing that prior to trial, he had been
"ignoring subpoenas" because he doubted that he would "get any
justice," and that Tempkin had police officers bring him to
court. Id. at 172-73, 83 S.Ct. 1194. This evidence, even if
considered impeaching, has far less probative force than the
evidence introduced at trial that Singletary initially failed to
provide the arresting officers the names of two of his
assailants, Ingram and petitioner. Trial Tr. at 191-92. As
impeachment evidence of Singletary's reluctance to identify his
assailants was elicited at trial, the omission of this
additional evidence is not material.
2. Post-Trial Impeachment Evidence
The undisclosed impeachment evidence that arose after trial
falls into two categories: (a) the District Attorney's Office
handling of Singletary after trial, including the trial
prosecutor's role in having Singletary removed to Bellevue, a
psychiatric facility, and the DA's provision of post-trial
assistance to Singletary; and (b) evidence that some police
officers may have believed that Singletary reported false death
threats in order to get attention. Petitioner argues that the
withholding of this evidence had an impact on the state court
proceedings, and violated Brady. However, even assuming
arguendo that the withholding of impeachment evidence
concerning post-conviction events may in certain circumstances
give rise to a constitutional violation under Brady,*fn15
none of the impeachment evidence at issue here is material, as
no reasonable possibility exists that earlier disclosure would
have changed the outcome of the state court proceedings.
a. Witness' Handling by the District Attorney's Office.
Petitioner claims that
the suppression of evidence regarding Tempkin's role in having
Singletary taken to a mental facility, and the assistance
provided by the District Attorney's Office to Singletary
following trial, violated the prosecution's Brady obligations.
However, Tempkin's request for police assistance in removing
Singletary to a psychiatric hospital is cumulative of other
evidence of Singletary's long-standing mental problems, which
was available to criminal defense counsel by the time of trial.
The later impeachment evidence would only have amplified faintly
that which the defense chose not to pursue on cross-examination
of Singletary. Similarly, evidence concerning the prosecutors'
post-trial efforts to assist Singletary with his benefits,
education, or arrests, merely echoed the evidence of pretrial
benefits provided to Singletary, which defense counsel was on
notice of but chose not to elicit at trial. In short, the
post-trial information was merely "additional evidence tending
further to impeach the credibility of a witness whose character
had already been shown to be questionable," United States v.
Rosner, 516 F.2d 269, 273-74 (2d Cir. 1975), and it could
hardly have effected the outcome of either the trial or
b. False Death Threats. Petitioner also claims that Brady
was violated by the prosecution's failure to disclose that the
police detectives involved in the case believed that at some
unspecified time, Singletary had phoned in false death threats
in order to get attention. Motion to Amend at 2. At the
evidentiary hearing before this Court, Tempkin testified that he
believed he was informed of the police officers' suspicions
after trial. H. Tr. at 40.*fn16 However, two of the
investigating police officers could not, at the hearing,
remember anything about false death threats (id. at 19-20,
115), and ADA Rodriguez recalled that, although there was "an
issue as to whether or not certain threats that Mr. Singletary
had claimed had come against him were false, . . . [she] never
learned any information that would indicate that they were in
fact false." Id. at 95.
At best, this evidence reflects only that the police officers
may have had questions about Singletary's reliability — as did
Tempkin, who described how he and his colleagues extensively
cross-examined Singletary before trial (id. at 49-50) and
attempted to independently verify Singletary's complaint (id.
at 62-63). Petitioner offers no support for the proposition that
unconfirmed suspicions regarding Singletary's reports of death
threats would have been admissible at trial or in post-trial
hearings. See cases cited supra p. 24.
Furthermore, the defense possessed and exploited at trial much
stronger impeachment material, including Singletary's criminal
record, his drug and alcohol abuse problems, and his failure to
disclose to the investigating officers the identities of the
assailants who were known to him. In light of the evidence
available at the time of trial, proof of the officers'
suspicions is not material, as there is no reasonable
probability that, had it been disclosed by the prosecution, the
outcome of the trial or collateral state proceedings would have
been different. See Zagari, 111 F.3d at 320. Simply put, proof
of the officers' unconfirmed suspicions "could hardly have
transformed the jury's image of [Singletary] from paragon to
knave." United States v. Gilbert, 668 F.2d 94, 96 (2d Cir.
Accordingly, petitioner's Brady claims are without merit,
and the amendment of his petition to add those claims would be
For the foregoing reasons, this Court recommends either that
Penick be permitted to amend his petition for a writ of habeas
corpus and that the petition (including amendments) be dismissed
in its entirety on the merits, or that his motion to amend be
denied and that the original petition be dismissed on the
Any objections to the recommendations contained herein must be
filed with the Honorable Nina Gershon on or before October 19,
2000. Failure to file objections in a timely manner may waive a
right to appeal the District Court's order. See
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72; Small v. Secretary of
Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).
The Clerk is directed to transmit a copy of this Report and
Recommendation, by overnight courier, to all counsel of record.
October 5, 2000.