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December 26, 2001


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

Memorandum, Order, and Judgment

Petitioner seeks a writ of habeas corpus. He was convicted of three counts of murder in the second degree and related crimes by a New York State Court Jury. His sentence was imprisonment for twenty-five years to life and various concurrent terms. On appeal his conviction was affirmed. People v. Allen, 163 A.D.2d 396, 558 N.Y.S.2d 121 (2d Dep't. 1990) 77 N.Y.2d 875, 568 N.Y.S.2d 918, 571 N.E.2d 88 (1991). A variety of collateral attacks followed in the state courts, See, e.g., People v. Allen, 222 A.D.2d 598, 636 N.Y.S.2d 643 (2d Dep't 1995), 240 A.D.2d 418, 658 N.Y.S.2d 1006 (2d Dep't 1997).

In April 1997 petitioner sought habeas relief in federal court. Counsel was appointed in February of 1998. She notified the court in December of 1999 that some of petitioner's claims required exhaustion. After those claims had been rejected by the state courts the case was heard in November of 2001.

The court orally denied the petition on the record before it, but indicated that a certificate of appealability would be granted on the issue of the unavailability of a grand jury witness who would have testified supporting petitioner's alibi. The court requested that respondent obtain the relevant grand jury testimony. Entry of judgment was stayed to permit the respondent to provide the grand jury testimony. On December 19, 2001 that testimony was furnished to the court and petitioner's counsel. An examination of the testimony and of the entire records supports the decision to dismiss and to grant a certificate of appealability.

Early in a morning in February 1985 five men entered an apartment in Brooklyn. Three occupants were shot and killed, two were left unharmed and two survived an attempt to kill them. Petitioner was arrested later that month.

Two survivors of the shootings had known petitioner through prior drug transactions. While they were of blemished character as drug users and sellers, their identification in court of defendant as the leader of the murderers was unshaken. No cross-racial, or bias issues tainted the identification. Their testimony differed in particulars of surrounding details, but not as to petitioner's role in the killings.

Petitioner sought to present four alibi witnesses. His female companion testified that he and she had spent the entire relevant period at her Long Island home or while the two toured Nassau and Queens seeking a motel to celebrate St. Valentine's Day. The sister of petitioner's lady testified confirming part of the alibi — presence at the Long Island home the day and part of the evening preceding the murders. The girlfriend's mother testified before the grand jury that petitioner was in her home with her daughter all the day and part of the night before the next morning's murder; she could fix the date because it was her husband's birthday. She was not available at the trial because of illness. Nor was her ill husband who was also proffered as an alibi witness.

The trial court refused a continuance to obtain the mother's testimony; denied admission of the grand jury testimony, after examining it; and agreed with the prosecutor not to accept petitioner's suggestion that the state stipulate to the grand jury testimony. See Transcript of trial 156067.

The offer respecting the missing alibi witnesses was made just before summation. Since technical arguments support respondent's case the entire relevant transcript of offer, colloquy and rejection is set out below. See Id.

[June 6, 1986]

THE COURT: . . . .And I do not find that the request [as to another witness] is timely made. This is the eve of summations and charge. This is not something that came up suddenly.
From the very beginning of the case I announced the day we would be proceeding to summation and charge. We have had every Friday as a day off, at least for counsel to do work, getting witnesses.
I have stated time and again I would sign any and all subpoenaes, appoint any and all investigators to expedite counsel's job to see that they get their witnesses.
I find that this is late notice, untimely and with respect to this [other] witness, I find no basis at this time to put him on.
MR. KIMMEL: [Defense counsel] I take an exception. Your honor, in addition, I have two other witnesses [to the alibi] who are not able to be in court today. They are elderly people, are sick.
We attempted to get them last week. They are still sick. They come [sic] on Wednesday and I am informed that Iris Taitt who is 58 years old, who testified at the Grand Jury, and Frederick M. Taitt, who is 63 years old, and they are unable to appear today because of illness.
And under the circumstances, the district attorney had time to review their background and I am making that request.
THE COURT: The one who testified in the Grand Jury, I believe in that instance, the testimony would be cumulative, adding nothing new or different.
In any event there have been no doctors' reports submitted and I find at this late date, at this time, that while counsel may be making the application in good faith, I don't believe it is a good faith offering and I do not accept it.
And I find no basis for delaying this trial any further.
MR. KIMMEL: I have the investigator here, Mr. Juskim (phonetic); who went out and checked that out, your Honor. He tried to get them in last week and we expected them last week. But they were sick at that time and over the weekend again checked it out.
Your Honor, as to alibi witness Frederick Taitt, I spoke to his daughter here.
He indicated to me he won't be able to come but Iris Taitt would be here.
DEFENDANT ALLEN: If we have [sic] the trial in six months —
MR. KIMMEL: He had a relapse, Frederick Taitt and because of lateness in delays in going to trial, he had a stroke ...

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