The opinion of the court was delivered by: Allyne R. Ross. United States District Judge
By petition filed August 29, 2000, petitioner Giovanni Bell seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons explained herein, the petition is denied.
At approximately 1 a.m. on August 17, 1997, Richard Dennis entered an adult video store on Atlantic Avenue in Brooklyn and ordered the store clerk, at gunpoint, to lie down on the floor. The clerk, Vajira Paranayaba. heard footsteps. and caught a glimpse of a second person, who was wearing a black sleeveless jacket and black pants. The second person, later identified as petitioner, tapped Paranayaba with a baseball bat as he was lying on the floor. Dennis, who was wearing a red shirt, then ordered Paranayaba to open the cash register and to retrieve the money from the video booths; Dennis also took Paranayaba's watch and wallet.
Soon after the crime began, New York City Police Officers Richard Gong and Ronald Johnson heard reports of a robbery in progress and entered the store. Upon their arrival, the officers saw two men, the brothers Braulin and Bernard James, leaving the store carrying x-rated videotapes, stereo and telephonic equipment, magazines, and other store merchandise. The officers ordered the Jameses to lie down, which they did.
At that moment. Dennis, who was running from the back of the store carrying a gun and a plastic bag, turned around and ran toward the video booths. Officer Gong followed Dennis and apprehended him outside a video booth, where Gong also found cash, a Radio Shack walkie-talkie. and Dennis's gun. In Braulin James's car, which was parked outside the store, police later found a matching walkie-talkie, jewelry, and an air pistol.
In another video booth, the police found Paranayaba, who had been ordered to remain there by one of the robbers. The police apprehended two other men by the booths: an unidentified individual, who was permitted to leave after being identified as a customer by Paranayaba, and petitioner. Officer Gong brought Paranayaba to the front of the store, where he identified Dennis and petitioner as perpetrators. The officers arrested Dennis and petitioner, as well as Bernard and Braulin James.
A grand jury indicted Dennis and petitioner for several crimes, including second-degree robbery. but returned no charges against either of the James brothers, who were thus dismissed from the case. Dennis pleaded guilty to second-degree robbery. but petitioner pleaded not guilty and went to trial.
During jury selection, petitioner's lawyer renewed an earlier request for the arrest photographs of the James brothers. Defense counsel stressed the importance of the photographs to the issue of identification. and argued that if one of the James brothers were wearing clothing similar to petitioner's, it would be a "major issue". Trial Transcript ("Tr.") at 143. The prosecutor stated that he was attempting to obtain the photographs from the Police Department, and that he had prepared unsealing orders for the photographs because the charges against the Jameses had been dismissed. Also because of the dismissal, however, the prosecutor was uncertain whether the photographs still remained in the police computer system. He stated that his office had received mixed signals on this issue from the police. The prosecutor agreed that the photographs were important to the case, asserting that he planned to state in his opening that petitioner was the only one of the arrestees wearing dark clothing. If it turned that one of the James brothers had similar clothing, he noted, "it would be the kiss of death." Tr. at 145.
The following morning, the prosecutor informed the court that efforts to obtain the photographs from the police computer remained unsuccessful, but that his office had "attempted to subpoena [the New York City Department of] Correction records for each of the four individuals who were arrested." Tr. at 158. Although no photographs had been produced, the prosecutor stated that "[i]n what we received" were petitioner's phone and visitation records. Id. Because the phone records indicated that petitioner had been in contact with one of the Jameses, the prosecutor stated his intention to introduce these records in his direct case. Defense counsel objected. and the court ruled that the prosecution could only use the records on petitioner's cross-examination, in the event he testified. As for the photos, the court stated that if they were not produced by noon that day, "the People w[ould] bear the weight of that." Tr. at 159. Nevertheless, the court stated that it would not delay the start of the trial. The photos were not produced by noon, and the trial went forward as planned.
At trial, Paranayaba testified that on the night of the incident, after police had brought petitioner and Dennis to the front of the store, he had identified petitioner as the man in black standing over him with a baseball bat. Paranayaba testified that he had been able to identify petitioner by his height, his clothing, and his voice, although on cross-examination he conceded that he did not remember telling police that he recognized petitioner's voice. Paranayaba also testified that petitioner was the only person in the store wearing black.
In addition to Dennis and petitioner, Paranayaba testified that he viewed four other individuals in the store with the police: the unidentified customer in the video booth; a man with a mustache, whom the police also released after Paranayaba said he recognized him from previous visits to the store; a man lying down on the floor, whom Paranayaba recalled as wearing a light-colored t-shirt and grey or ash-colored pants; and another man, whom Paranayaba could only describe as shorter than. but otherwise resembling "a little bit," the man on the floor. Tr. at 468.
Both arresting police officers testified that petitioner was wearing black pants and a black shirt (Officer Johnson described the top as a sweatshirt-type sweater with an open collar). Two of petitioner's arrest photos. which indicated that he was wearing a black shirt, were admitted into evidence. Officer Gong testified that petitioner was the only person in the store wearing black. Gong testified that Bernard James had a white T-shirt; Officer Johnson described the shirt as light-colored. As for Braulin James, Officer Gong described his shirt as "lightish-color like a green," Tr. at 341; Officer Johnson also testified that he was wearing a light-colored T-shirt. Officer Johnson testified that Braulin James was 6'1"; Bernard James. 5'9"; and petitioner, 6'5". Paranayaba, who is 5'11", testified that the man with the baseball bat was much taller than him — approximately five inches so.
Prior the court's charge to the jury, defense counsel reminded the court that he had never been provided with the James brothers' arrest photos. The prosecutor stated that the photographs had been expunged from the Police Department computer system. The court accepted this representation based on the fact that the charges against the Jameses had been dismissed.
On the second day of its deliberations, the jury reported that it was deadlocked. After the court instructed the jury, in essence, to keep trying, the jury requested, inter alia, that it be read the portions of the trial testimony addressing what the James brothers were wearing. When the jury later indicated that it remained deadlocked, the judge proposed that petitioner waive his right to a jury trial and designate the judge as the trier of fact. In exchange, the judge indicated that he would render a verdict finding petitioner guilty of attempted robbery in the third degree and acquitting him of all of the other charges pending before the jury. Petitioner accepted, and the judge returned the verdict as indicated. Several weeks later, on May 27, 1998, the court sentenced petitioner to a prison term of one and a half to three years.
On July 7, 1998, petitioner filed a pro se motion to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10, arguing that the People put on false testimony and that the indictment was defective. Petitioner also claimed that evidence that would have proved his innocence was never produced by the prosecution. The trial court denied this motion on October 14, 1998.
On October 26, 1998, the Appellate Division granted petitioner's motion for assigned counsel on appeal. On December 9, 1999, the trial court, pursuant to a request of petitioner's appellate counsel, Laura Boyd of the Legal Aid Society, signed a subpoena directing the New York City Department of Correction "DOC") to provide any documents, photographs, or other materials in its possession relating to the arrest of Braulin James. Among the materials obtained were a Police Department Prisoner Movement Slip containing a black-and-white photograph of James, who appears to be wearing a dark shirt, and a DOC form indicating that when James was received by the department, he was wearing a green shirt and black pants.
On February 14, 2000, petitioner's appellate counsel filed a § 440.10 motion with the trial court, seeking to vacate petitioner's conviction on the grounds that (1) the prosecution's failure to disclose the photograph and the DOC intake form violated petitioner's rights under Brady v. Maryland, 373 U.S. 83 (1963); (2) trial counsel's failure to obtain the photograph and DOC form deprived petitioner of effective assistance of counsel; and (3) the DOC materials constituted newly discovered evidence excusing petitioner's failure to raise the Brady claim in his first § 440.10 motion. The People opposed petitioner's Brady and ineffective assistance of counsel claims on the merits, but did not argue that they had been procedurally forfeited.
The trial court denied the motion on two procedural grounds, which it raised sua sponte. First, the court held that "nondisclosure of the photograph" was preserved on the trial record, and therefore could only be raised on direct appellate review. People v. Bell, Ind. No. 8857-97 (N.Y. Sup. Ct., Kings Co. Apr. 26, 2000) (Memorandum Opinion) ("Tr. Ct. Op."), at 10. Second, the court found the claims barred by C.P.L. § 440.10(3)(c), which provides that a trial court may deny a motion to vacate if, in a previous motion, "defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so." Id. at 8. Without directly addressing the fact that the photograph had been obtained only after the first motion, the court stated, "At the time defendant filed his previous motion to vacate judgment he knew that his attorney had made repeated requests for the [arrest] photograph of Braulin James but was compelled to try the case without viewing the photograph." Id.
The court went on to hold, in the alternative, that the Brady claim lacked merit. The court found that the photographs could not be deemed to be within the control of the prosecution or police, having been obtained from the DOC files. The court cited New York caselaw holding that the DOC and the New York State Department of Correctional Services are not law enforcement agencies and thus not under the direction of the prosecution or police. The court also reviewed and found meritless petitioner's claim of ineffective assistance of counsel.
On August 9, 2000, the Appellate Division, Second Department, denied leave to appeal from the trial court's order. On August 29, 2000, petitioner filed a pro se petition for a wirt of habeas corpus from this court. The petition claimed violations of Brady and of petitioner's right to effective assistance of counsel. Petitioner noted that his direct appeal had not been perfected.
On November 17, 2000, petitioner's appellate counsel perfected defendant's direct's appeal of his conviction to the Second Department. In her submissions, counsel argued, inter alia, that the prosecution had failed to disclose Brady material and that petitioner's trial counsel was ineffective for failing to obtain this material. By motion dated February 14, 2001, appellate counsel sought to enlarge the record on appeal to include, inter alia, the Prisoner Movement Slip with the photograph of Braulin James and the DOC form containing a description of his clothing. The Appellate Division denied this motion on April 9, 2001.
By opinion and order dated October 1, 2001, the Appellate Division affirmed petitioner's conviction, finding that the verdict was based on legally sufficient evidence and was not against the weight of the evidence. People v. Bell, 287 A.D.2d 460, 460, 730 N.Y.S.2d 883, 883 (2d Dep't 2001). The Appellate Division did not reach the merits of petitioner's Brady and ineffective assistance claims, stating that it had already denied leave to appeal the trial court's denial of petitioner's of § 440.10 motion. which addressed these claims. Id.
Petitioner sought leave to appeal the Appellate Division's decision, which the Court of Appeals denied by order dated January 10, 2002. See People v. Bell, 97 N.Y.2d 701, 701, 739 N.Y.S.2d 101, 101 (2002).
On February 7, 2002, this court granted the request of the Legal Aid Society to represent Mr. Bell in connection with the instant proceedings, and permitted counsel to file a supplemental brief on his behalf. The supplemental memorandum, filed by Elizabeth Sack Felber on March 26, 2002, addresses petitioner's Brady and ineffective assistance claims and also argues that the Brady claim is not procedurally barred from review by this court. Respondent filed a supplemental brief on April 27, 2002, arguing that the Brady claim is procedurally barred and, in any event, along with the ineffective assistance claim, meritless. Petitioner filed a reply on May 7, 2002.
Upon reviewing the parties' submissions, including the state court transcript, the court concluded that the record was undeveloped regarding Braulin James's Prisoner Movement Slip, which contained the black-and-white photograph of James wearing an apparently dark shirt. Specifically, the court was unable to determine whether, assuming the movement slip constituted material and exculpatory evidence, the prosecution or the police could be charged with knowledge of its existence. Because a serious Brady issue would arise if this were the case, the court exercised its discretion and ordered an evidentiary hearing. See Dey v. Scully, 952 F. Supp. 957, 964 (E.D.N.Y. 1997).
At the hearing, which was held on January 22 and 23, 2003, the following witnesses testified: Chester Dabzitzki, the director of the New York City Police Department Photographic Unit; Detective (former Officer) Ronald Johnson, one of the arresting officers; Timothy Gough, the Assistant District Attorney ("ADA") who tried the case against petitioner; Laura Boyd, the Legal Aid attorney who represented petitioner in connection with his second § 440.10 motion and his direct appeal; Martin Gorfinkel, a supervising attorney in the Criminal Defense Division of the Legal Aid Society; Edward Kosoff, an administrator at the DOC's Management Information Services; Balinda Harris, a DOC correction officer, who filled out the DOC pedigree form found in ...