The opinion of the court was delivered by: Weinstein, Jack B., Senior District Judge.
MEMORANDUM, ORDER & JUDGMENT
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary.
A Report and Recommendation in this matter was submitted by Magistrate Judge William D. Wall to District Judge Denis R. Hurley. Objections to the Magistrate's recommendation were timely filed by petitioner. The case was reassigned to the undersigned judge before Judge Hurley ruled on the ultimate disposition of the petition. The Magistrate's power over the case was revoked by this judge as a matter of course.
Having made a de novo review of petitioner's claims and the record, this court concludes that there is no merit to the petition. Evidence of petitioner's guilt of grand larceny, burglary and other charges was overwhelming. He was given a fair trial. The Magistrate's Report and Recommendation is thorough and has been largely incorporated into the instant Memorandum, Order and Judgment.
Petitioner's objections to the Report and Recommendation have been considered by this court and are rejected.
A.) Petitioner's Conviction and Sentence:
On March 29, 1996, petitioner Frank Bellezza ("petitioner" or "Bellezza") was indicted on one count of Burglary in the Second Degree, one count of Burglary in the Third Degree, and one count of Possession of Burglar's Tools. On April 17, 1996, petitioner was indicted on one count of Grand Larceny in the Fourth Degree. On November 25, 1996, petitioner was indicted on one count of Burglary in the Second Degree and one count of Burglary in the Third Degree. On April 1, 1997, petitioner was convicted of all of the crimes charged after a trial by jury.
On May 7, 1997, he was sentenced to a determinate term of ten years of incarceration, as a consequence of his status as a second felony offender, for his conviction for Burglary in the Second Degree, to an indeterminate term of incarceration of three to six years for his conviction for Burglary in the Third Degree, and to a determinate one year term of incarceration for his conviction for Possession of Burglar's Tools, with the second two terms to be served concurrently. On the Grand Larceny charge, he was sentenced as a second felony offender to an indeterminate term of incarceration of one and one-half to three years, with this sentence to be served concurrently with the other sentences. On the crimes for which he was indicted in November 1996, petitioner was sentenced to a determinate term of incarceration of ten years as to his conviction for Burglary in the Second Degree due to his status as a second felony offender, and an indeterminate term of incarceration of three to six years for his conviction for Burglary in the Third degree, with these sentences to be served concurrently with each other but consecutively to the sentences imposed upon petitioner for his convictions under the earlier indictments. (See Minutes of Sentencing Hearing, May 7, 1998) Bellezza had earlier rejected a plea bargain offer. (See Minutes of Huntley Hearing, Jan. 23, 1997) The petitioner's convictions were based on several incidents, as set forth infra.
B.) The Underlying Crimes and Testimony at Trial:
In 1995, Bellezza lived with Theresa McCarthy and her two children in Central Lslip. (T. 87-89) Bellezza worked as a security guard at Dockside 500, a marina, during the summer of 1995, and one of McCarthy's sons, Steven, testified that petitioner told Steven that certain items he brought home were stolen from the marina. (T. 89-9 1) The items included boat motors, fishing poles and other boat items, including a Zodiac blow-up raft that petitioner specifically admitted stealing. (T. 9 1-92) Some of the stolen items wound up at the home of petitioner's friend, Kevin O'Connor. (T. 90-91) In the late summer or early fall of 1995, petitioner sold a stolen boat motor to Theresa McCarthy's sister, who called the police and turned it over to them. (T. 143-47) In October of 1995, Suffolk County Detective Bruce Harris, who knew petitioner, arrested him for Grand Larceny for the theft of the boat motors. (T. 433-34) Petitioner appeared voluntarily at the precinct, and agreed to speak with detectives after executing a written waiver of his rights. (T. 436) He gave a written statement that said, in essence, that he had allowed Kevin O'Connor to steal boat motors from Dockside 500 to settle a debt to O'Connor. (T. 442-43) Petitioner was released on station house bail. (T. 444) Several months later, in March 1996, he met with Detectives Harris and Cergol and agreed to wear a wire in a meeting with O'Connor, and did meet with him on or about March 19, 1996, but no useful information was obtained. (T. 3 12-15, 446-47)
During the summer of 1995, petitioner told Theresa McCarthy that he was stealing from the marina. (T. 108) In the fall, he told her that he wanted to rob the laundromat she worked at, the Laundry Experience in Mastic, by breaking through the office wall from the deli next door. (T. 111-12) Petitioner also repeatedly told Steven McCarthy that he was going to rob the laundromat and that he had keys to the deli next door and would break into the back of the laundromat through the wall. In late January 1996, Theresa McCarthy broke off her relationship with petitioner and asked him to move out of her house, which he did. (T. 97-98).
On February 26, 1996, Theresa McCarthy opened up the laundromat and saw that it had been burglarized. (T. 113) She called the owner, James Sharkey, told him about the break-in, and told him that she thought the petitioner had done it. A three foot by three foot hole had been cut in the wall of the laundry office, which was a common wall with a burned-out deli next door, and the sheetrock had been pushed into the laundry office from the other side. (T. 25, 48) Three hundred dollars were missing from the drawer of the laundry office desk. A few hundred dollars in coins were also taken. (T. 26) Sharkey had seen the petitioner at the laundry and at the deli, where he had been hired to fix some tiles and to clean up debris after the deli was damaged by fire. (T. 20, 42, 22) McCarthy knew that petitioner had made a key to the deli, because she was with him when the key was made. (T. 116) After the burglary, Steven McCarthy saw petitioner on the street, and petitioner told Steven that he had committed the burglary to get back at Steven's mother, Theresa. (T. 98-99) He also told Theresa McCarthy that he had broken into the laundry. (T. 117)
On March 12, 1996, John Ericson returned to his home in Middle Island and found that it had been ransacked and burglarized, and the lock to the back door had been broken off. (T. 54| 55) At trial, Ericson identified a coat, several jackets, a microwave oven, a television set, a Jasmine Takamine acoustic guitar, a Gibson guitar, a Hoover vacuum and a Coratone guitar as items that had been taken from his home. (T. 55-70) On that same day, March 12, petitioner went to Cash in a Rash, a pawn shop in Shirley, and sold Ericson's Gibson guitar. At Cash in a Flash, petitioner presented a Florida photo Ii) drivers license, which was recorded on the pawn receipt, and the pawnbroker, Robert Fisher, identified petitioner at trial. (T. 74-86)
Detective John Bauer of the Suffolk County Police Department's (SCPD) Property Recovery Section recovered other items taken from Ericson's home from pawn and tool shops, including a television, a Coratone guitar, an Alvarez guitar, and a water pump. Receipts for these items were in petitioner's name, verified by a Florida drivers license. (T. 134-41) Detective Sal Balamonte, from the SCPD Property section, retrieved two guitars and a Sanyo electronic device from O'Neill's pawnshop in Patchogue. The items had been bought from petitioner, who used his Florida drivers license as identification for the sale, and were identified by Ericson as his. (T. 332-336, 339, 341 & 348)
Other crimes were also committed around this time that were later attributed to petitioner. On March 9, Mark Rivera discovered that his house at 2 Burney Blvd. had been burglarized. A window in the rear of the house had been broken and the locks snapped off. Various items, primarily jewelry, had been taken from the house, along with a silver rattle, cash, three hundred compact discs, a power drill and a camera. (T. 168-76) On March 14, Bellezza went to Budget Buy and Sell in Patchogue and sold various pieces of jewelry which were later recovered by the police. (T. 206-10)
On the morning of March 10, the owner of the Shirley Laundromat discovered that his store had been burglarized. (T. 158) Someone had broken through the floor from the cellar and had stolen soap, soda, a television, cash, and other items. (T. 159-62) On the night that the Shirley Laundromat was burglarized, petitioner brought boxes of starch home with him. (T. 245).
After Bellezza moved out of Theresa McCarthy's house in early 1996, he moved in with Liloutie Fallon at 3 Hart Place. (T. 230) Through Liloutie Fallon, petitioner met Joey Spezzano, who lived with them sporadically. (T. 232, 236) In early March, petitioner told Fallon that he was going to his uncle's house to steal drugs and guns. (T. 240) Bellezza came back with clothes, money, jewelry and gold, and told Fallon that he hadn't gone to his uncle's house, but elsewhere. Fallon and Bellezza went together to a pawn shop in Patchogue to sell the stolen goods. (T. 241-42) Over the following weeks, the petitioner brought home assorted goods to Fallon's house, including guitars, televisions and microwave ovens. (T. 244) Fallon also testified that petitioner kept a shotgun in the house. (T. 257)
On March 22, 1996, the police obtained a search warrant and searched Fallon's house and petitioner's car. In the glove compartment of petitioner's car, the police found a silver rattle later identified by Mr. Rivera as his child's. (T. 168-176, 179-83) Leather jackets belonging to John Ericson were found in petitioner's closet. (T. 453) A television and camera were seized, and a gym bag was recovered that contained a hammer, a saw, oxygen tanks, portable propane tanks, gloves, bolt cutters, a screw driver and a set of channel lock phers. (T. 457)
After the search, Bellezza was arrested and taken to the precinct, where he was read his rights. (T. 363) Petitioner signed the printed rights card and agreed to speak with the detectives. (T. 364-66) Petitioner confessed that he had burglarized the Laundry Experience by using his key to the deli to access the common wall and cut the sheet rock. He stated that the key to the deli was in a small metal can in his bedroom. (T. 368, 465, 467) The next day, the police returned to petitioner's bedroom and found keys hidden in a small metal can, one of which was the key to the deli next to the Laundry Experience. (T. 353, 357)
Petitioner also told police that he had once lived at 3 Burney Blvd., across the street from the Rivera household, and that he had burglarized the Rivera house with the help of Joseph Spezzano. (T. 370) He admitted to stealing the silver rattle from the baby's nursery, as well as jewelry and the other items that were missing from the Rivera home. The jewelry had been sold at Budget Buy and Sell in Patchogue. (T. 371, 468-69) During the search of petitioner's residence, the police also found a blue pillowcase later identified by Mrs. Rivera as hers. (T. 372) On March 22, when the police arrested Joseph Spezzano, he was found to be wearing sneakers stolen from the Rivera house. (T. 322)
With regard to the Ericson burglary at 20 Middle Island Road, petitioner confessed that he and Joey Spezzano had stolen guitars, a microwave, a vacuum cleaner and some jackets. (T. 372-73) Bellezza told police that, at the time of the burglary, he was dressed in camouflage and was carrying a 16 gauge shotgun. (T. 470) He also told police that some of the guitars from the Middle Island Road robbery had been sold to a store in Center Moriches, and that a Les Paul guitar was sold to Cash in a Flash. (T. 471)
The police asked Bellezza to make a written statement, but he agreed only to writing a statement as to one "D" felony, the burglary of the Shirley Laundromat. (T. 374) Prior to giving the written statement, petitioner was again advised of his rights, after which he signed a waiver of those rights. (T. 377) Fallon testified at trial that, after he had confessed, petitioner told her to lie and say that she heard him ask for a lawyer when he was arrested. (T. 260-61)
After the People rested at trial, petitioner's counsel made an offer of proof with regard to a witness, Mabel Caggiano, who would testify that in the early morning hours of March 23, 1996, Liloutie Fallon called her and said that petitioner, who was at the police station, wanted a lawyer. (T. 564, 567) Ms. Caggiano is Bellezza's aunt. The People objected on the ground that there had been no testimony that the police were aware of such a request, and it called for double hearsay. (T. 565) Petitioner did not object to the court's conclusion that the proffered testimony called for double hearsay nor did he offer a valid basis for its admissibility. (T. 567) The defense rested without the defendant taking the stand or presenting any witnesses. (T. 569)
The People moved to dismiss count seven of indictment 974E-96, Criminal Possession of Stolen Property in the Fifth Degree, which concerned the proceeds of the burglaries, because the prosecutors thought this would avoid confusion for the jury. Petitioner did not object, and that count was dismissed. (T. 573-74) The jury returned a guilty verdict on all remaining counts. (T. 615-5 1)
C.) The Appeal and Post-Trial Motions:
In September 1996, the petitioner filed a pro se "Petition for Writ of Habeas Corpus" with the state court. The record does not contain the official disposition of that petition, but it was obviously denied. The petitioner appealed to the Appellate Division, Second Department, with court appointed counsel. On his appeal, he raised grounds of excessive sentence, introduction of inadmissable hearsay testimony by Detective Harris, and refusal to call a witness requested by the petitioner. Petitioner's conviction was affirmed by order dated December 27, 1999. See People v. Bellezza, 267 A.D.2d 468 (N.Y. App. Div. 1999). Leave to appeal the Second Department decision was denied by the Court of Appeals on February 4, 2000. See People v. Bellezza, 94 N.Y.2d 901 (2000).
Bellezza also made numerous motions to vacate his conviction pursuant to section 440 of the New York Criminal Procedure Law, and for other relief. In February 1998, the petitioner filed a pro se motion to vacate the judgment of conviction or for a hearing. In that motion, petitioner contended, inter alia, that the District Attorney's failure to provide Theresa McCarthy's DWJ criminal record was a Brady violation and that he had received ineffective assistance of counsel. He also claimed that the prosecutor had failed to disclose several other pieces of potentially exculpatory evidence. In March 1998, petitioner's court appointed trial attorney, Kevin Cadden, also made a motion regarding the failure to provide McCarthy's criminal history. Both motions were denied by the Hon. Gary J. Weber, the trial judge, on May 14, 1998. The pro se motion was reargued and again denied by Judge Weber on May 20, 1998. On July 2, 1998, Bellezza moved, pro Se, to relieve his assigned counsel, Kevin Cadden, for purposes of making a section 440 motion. In an order dated July 30, 1998, Judge Weber granted the motion relieving Cadden and noted that Bellezza had already been assigned new counsel for the purpose of perfecting his appeal. Leave to appeal Judge Weber's May 14th order denying both section 440 motions was applied for by Bellezza acting pro se, and was denied by the Second Department on October 2, 1998.
On March 4, 1999, Bellezza filed a pro se motion, asking that the court appoint counsel to assist petitioner in making a section 440 motion. That motion was denied by Judge Weber on May 21, 1999, inasmuch as appellate counsel had already been appointed. In May 1999, before Judge Weber denied the March 4th motion, petitioner filed a pro se motion pursuant to section 440, which claimed that Liloutie Fallon's testimony at trial was false, based on conflicting testimony that she gave in Eamily Court. That motion was denied by Judge Weber on July 16, 1999. Leave to appeal the July 16Z order to the Appellate Division was denied on September 22, 1999.
On October 14, 1999 Bellezza made another motion seeking to vacate his conviction pursuant to section 440, and seeking an order directing that the criminal history reports of all the witnesses at his trial be produced. The motion was denied by Judge Weber on January 12, 2000.
In August 2000, petitioner made yet another motion to vacate his conviction, claiming that a police Supplementary Report relevant to his case was not turned over to him in accordance with People v. Rosario. The motion was denied by Judge Weber on October 31, 2000, and leave to appeal Judge Weber's ruling was denied on January 3, 2001.
Petitioner also made a number of other motions, including an application that he be released on bail, and several applications for the unsealing and/or release of Family Court records that are not pertinent to this habeas petition.
D.) The Federal Habeas Petitions:
Petitioner first filed a habeas petition in this court on June 16, 2000, under docket number CV-00-361 I. By Order dated August 22, 2000, Magistrate Thomas E. Boyle noted that he had received correspondence from the petitioner that he had recently received documents from the Suffolk County Police Department pursuant to a FOIL request that were unknown to him at the time he filed his habeas petition, and that he intended to use the documents to support an application to the state court to vacate his conviction, pursuant to section 440.10 of the New York Criminal Procedure Law. Bellezza requested leave to proceed on that application and to hold the habeas petition in abeyance.
Judge Boyle found that, pursuant to applicable rules, the petitioner could file a notice of dismissal discontinuing the habeas proceeding, without prejudice to renewal, for the purpose of exhausting his available state court remedies. Judge Boyle also found that if Bellezza did not receive the requested relief in state court after exhausting any available appellate remedies related to the section 440 motion, he could commence a new action in this court provided he did so within one year after the exhaustion of his available state remedies. As noted earlier, Bellezza brought his final section 440 motion on August 22, 2000, the same date as Judge Boyle's order; it was denied by Judge Weber on October 31, 2000, and the Appellate Division denied leave to appeal Judge Weber's decision on January 3, 2001.
A new habeas petition was filed on March 12, 2001. It raises seven grounds for habeas relief: (1) the prosecutor failed to disclose evidence favorable to petitioner and knowingly allowed the false testimony of Ms. Fallon at trial to go uncorrected; (2) the prosecutor failed to disclose evidence favorable to petitioner and knowingly allowed the false testimony of Ms. McCarthy at trial to go uncorrected; (3) the prosecutor failed to disclose evidence favorable to petitioner and knowingly allowed false testimony about Mr. Spezzano's possession of keys to go uncorrected; (4) the court improperly refused to call Mabel Caggiano as a witness, thus violating petitioner's due process rights; (5) Detective Harris gave bolstering hearsay testimony in violation of petitioner's due process rights; (6) trial counsel rendered ineffective assistance; and (7) the prosecutor failed to turn over information helpful to the petitioner regarding false testimony given by two detectives.
A.) Application of AEDPA to Petitioner's Application:
Petitioner filed his application for a writ of habeas corpus in March 2001. Thus, it is governed by the substantial amendments to the federal habeas statute, 28 U.S.C. § 2254, enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which took effect in April 1996 and has "created a tumultuous sea change in federal habeas review, especially affecting the petitions of state prisoners." Aparicic v. Atiuz, 269 F.3d 78, 89 (2d Cir. 2001) (citing Williams v. Taylor, 529 U.S. 362, 402-10 (2000) (O'Connor, J., writing for the majority with respect to part II) & Lainfesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001)). B.) Exhaustion/Procedural Defaults Under AEDPA:
Generally, a federal court may not consider the merits of a state prisoner's petition for a writ of habeas corpus until the petitioner has exhausted the state remedies available to him. AEDPA provides that:
(b)(1) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the judgment
of a State court shall not be granted unless it
appears that —
(A) the applicant has exhausted the remedies available
in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process
ineffective to protect the rights of the applicant.
28 U.S.C. § 2254(b)(1).
The Second Circuit has recently reiterated that, to satisfy section 2254's exhaustion requirement, "a petitioner must present the substance of "the same federal constitutional claims that he now urges upon the federal courts,' Turner v. Artuz, 262 F.3d 118 (2d Cir. 2001) ["cert. denied, 122 So. Ct. 569 (2001)], "to the highest court in the state," Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990)." Aparicic, 269 F.3d at 89-90. In cases where a claim has never been presented to a state court, a federal court "may theoretically find that there is an "absence of available State corrective process' under section 2254(b)(l)(B)(i) if it is clear that the unexhausted claim is procedurally barred by state law and, as such, its presentation in the state forum would be futile. In such a case the habeas court theoretically has the power to deem the claim exhausted." Aparicio, 269 F.3d at 90 (citing Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997)).
When a federal court finds that ""the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred, ' federal habeas courts also must deem the claims procedurally defaulted." Id. at 90 (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1 (1991)). The "dismissal of a habeas claim on the ground that it was procedurally defaulted "differs crucially' from dismissal for failure to exhaust state remedies. " Id. (quoting Turner, 262 F.3d 118, 2001 U.S. App. LEXIS 18269, at *3). Dismissal for a procedural default is regarded as a disposition of the habeas claim on the merits. Thus, "any future presentation of the claim would be a second or successive habeas petition, requiring authorization by this Court pursuant to 28 U.S.C. § 2244 (b)(3)(A)." Aparicio, 269 F.3d at 90 (citing Turner, 262 F.3d 118, 2001 U.S. App. LEXIS 18269, at *3) (citing Carter v. United States,150 R3d 202, 205-06 (2d Cir. 1998))).
To avoid this result, "a petitioner must show cause for the default and prejudice, or demonstrate that failure to consider the claim will result in a miscarriage of justice (i.e., the petitioner is actually innocent)." Id. at 90 (citing Coleman, 501 U.S. at 748-50). As the Second Circuit has noted, the procedural default doctrine, with its "cause and prejudice" standard, is grounded in concerns for federalism and comity. Id. (citing Coleman, 501 U.S. at 730). "It ensures that federal courts respect the "States' interest in correcting their own mistakes."' Id. (quoting Coleman, 501 U.S. at 732). And, it applies whether the default occurred at trial, on appeal, or on state collateral review. Id. (citing Murray v. Carrier, 477 U.S. 478, 490-92 (1986)).
The exhaustion requirement is not satisfied unless the federal claim has been "fairly presented" to the state court. See Daye v. Attorney Gen'l, 696 F.2d 186, 191 (2d Cir. 1982)(en banc)(citing Wilwording v. Swenson, 404 U.S. 249 (1971) & Brown v. Allen, 344 U.S. 443 (1953)). "In order to have fairly presented his federal claim to the state courts, the petitioner must have informed the state court of both the factual and the legal premises of the claim he asserts in federal court." Id. at 191 (citing Picard v. Connor, 404 U.S. 270, 276-77 (1971) & Twiny v. Smith, 614 F.2d 325, 331 (2d Cir. 1979)). The petitioner must have set forth in state court "all of the essential factual allegations asserted in his federal petition; if material factual allegations were omitted, the state court has not had a fair opportunity to rule on the claim." Id. at 192 (citations omitted). The petitioner must also "have placed before the state court essentially the same legal doctrine he asserts in his federal petition, " because the exhaustion doctrine's purposes would be frustrated if "the federal habeas court were to rule on a claim whose fundamental legal basis was substantially different from that asserted in state court." Id. (citations omitted).
C.) AEDPA Standard of Review of Claims on their Merits:
AEDPA provides, in relevant part:
[A]n application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of a
State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
28 U.S.C. § 2254 (d); see also Williams v. Taylor, 529 U.S. 362
(2000); Francis S. v. Stone, 221 F.3d 100
, 107-11 (2d Cir. 2000) (discussing federal court's standard of review in analyzing claims previously adjudicated in state courts); Clark v. Stinson, 214 F.3d 315
, 320-21 (2d Cir. 2000) (same).
The Supreme Court interpreted the new habeas statute in Williams v. Taylor, 529 U.S. 362 (2000), finding that section (d)( 1) "places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Id. at 412-13 (O'Connor, J., writing for the Court). The Second Circuit has noted that the "necessary predicate to this deferential review is, of course, that petitioner's federal claim has been "adjudicated on the merits' by the state court." Aparicio, 269 F.3d at 93. If a state court has not adjudicated the claim "on the merits, " the Second Circuit applies pre-AEDPA ...