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
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.
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
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.
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
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
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
MR. KIMMEL: He had a relapse, Frederick Taitt and
because of lateness in delays in going to trial, he
had a stroke ...