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January 16, 2004.

DERRICK HAMILTON, Petitioner -against- VINCENT HERBERT, Superintendent, Attica Correctional Facility, Respondent

The opinion of the court was delivered by: JOHN GLEESON, District Judge


Petitioner Derrick Hamilton seeks habeas corpus relief from a judgment of conviction entered after a jury trial in state court. I held oral argument by telephone conference on December 19, 2003. For the reasons set forth below, the petition is denied. Page 2


  On January 4, 1991, at approximately 11:00 in the morning, Hamilton shot and killed Nathaniel Cash in the vestibule of 215 Monroe Street, Brooklyn, while three other men surrounded Cash. The murder was witnessed by Cash's girlfriend, Jewel Smith, who was well-acquainted with Hamilton from the neighborhood. For these acts, Hamilton was charged with murder in the second degree, and criminal possession of a weapon in the second and third degrees. On June 17, 1992, a jury found Hamilton guilty of second-degree murder and second-degree criminal possession of a weapon.

  In a pro se motion to set aside the verdict pursuant to New York Criminal Procedure Law section 330.30, Hamilton claimed, inter alia, that a new trial was required based on newly discovered evidence of his innocence. He based this claim on Smith's sworn recantation, to his private investigator, Robert Holt, of her trial testimony. In her recantation, Smith claimed that the police and prosecutor had threatened her into testifying at trial. Hamilton's newly discovered evidence claim was also based on two other alleged recantations by Smith, and evidence placing Smith at a location other than that of the murder at the time of the shooting. Hamilton also claimed that the prosecutor misled him and his attorney into believing that one "Karen Smith" — from whom a statement had been taken by an officer at the scene (that was later disclosed to defense counsel) that she had not witnessed the murder — was someone other than Jewel Smith, in violation of Brady. Finally, Hamilton claimed ineffective assistance of trial counsel based on his lawyer's failure to cross-examine Smith on the statement she made as "Karen Smith," described above, and based on counsel's cross-examination of government — Page 3 witness Detective Louis Scarcella. During Scarcella's cross-examination, defense counsel opened the door to testimony regarding Hamilton's threats against Smith.*fn1

  During the ensuing 12 months, the trial court entertained a variety of motion papers, memoranda of law, letters, and affidavits pertaining to Hamilton's original section 330.30 motion. In addition, the court held extensive hearings on several dates between October 19, 1992, and June 10, 1993, at which Hamilton was present and represented by counsel. (See Resp. Ex. D.) At these hearings, Smith testified that police officers and prosecutors threatened to put her in jail for murder and take her children away from her after she expressed reluctance to testify against Hamilton. According to Smith, she testified falsely against Hamilton both in the grand jury and at trial because of those threats. Smith also claimed to have informed the prosecutor, prior to Hamilton's trial, that her trial testimony implicating Hamilton would be false. Two other defense witnesses, Holt and Michael Ross, corroborated Smith's allegations regarding her recantation. Another defense witness, Felicia Schuler, testified that she had seen Smith at a grocery store when Cash was murdered.

  Smith's hearing testimony was contradicted, however, by the prosecutor at trial, Anne Gutmann, Detective Investigator Joseph Ponzi, and Detectives Frank DeLouisa and Scarcella, all of whom testified that no one had threatened Smith, and that Smith's reluctance to testify against Hamilton was due to her overwhelming fear of him. In a decision dated July 8, 1993, the trial court denied Hamilton's motion in all respects. (See Resp. Ex. E.) As to Hamilton's ineffective assistance of counsel claim, the court held: Page 4

In this case all defendant has demonstrated is that defense counsel did not cross-examine Jewel Smith regarding her statement that she was at the store when the shooting occurred. Instead, [defense counsel] cross-examined Ms. Smith regarding her signed sworn statement that she saw the shooting but Hamilton was not involved. Additionally, defense counsel asked Detective Scarcella questions which allowed him to relate alleged threats made by defendant to Ms. Smith. The court will not speculate into the trial strategy of defense counsel.
Applying this standard and upon examining the trial record, including the extensive cross-examination of Jewel Smith by defense counsel and considering the totality of the facts and circumstances in this case, the court concludes that defendant received "meaningful representation."
(Id. at 13.) As to the newly discovered evidence, the court concluded: "Upon observing the witnesses and the defendant during the hearing and trial, the court finds that all the evidence and facts surrounding and supporting the recantation by Jewel Smith to be suspect and unreliable. . . . Similarly, this Court rejects defendant's `newly discovered evidence' as being contrived and not believable." (Id. at 15-16.) On July 12, 1993, the court sentenced Hamilton as a second felony offender to a term of 25 years to life for the murder charge.

  By motion dated January 5, 1994, Hamilton, acting pro se, moved to vacate his judgment of conviction pursuant to New York Criminal Procedure Law section 440.10, claiming that the government committed numerous Rosario and Brady violations at trial, and ineffective assistance of counsel. Specifically, Hamilton claimed that the government violated his Brady rights by failing to disclose (1) that an alleged witness, Taseem Douglas, had tried to inform law enforcement authorities that Hamilton had not been present at the time of the shooting, and (2) that an agreement existed that exempted Smith from prosecution while she was in New York to testify at Hamilton's trial pursuant to a material witness order. Hamilton also claimed that the government violated his Rosario rights by withholding recorded pretrial statements, including Page 5 comments made by Smith at a material witness hearing in North Carolina, and ex parte, sealed discussions between the prosecutor and the trial court prior to trial. Finally, Hamilton raised myriad ineffective assistance of counsel claims. (see Resp. Ex. L.)*fn2

  The court granted Hamilton's motion on June 16, 1995, to the extent that it ordered a hearing to determine the validity of one of his Brady claims; namely, that the government failed to disclose that Douglas had witnessed the murder, did not see Hamilton at the scene, and tried to communicate this information to the government. The court denied the remainder of Hamilton's claims, stating:
Defendant's first claim that the North Carolina transcript is Rosario material is erroneous. The transcript of Jewel Smith's material witness hearing contains no references to the subject matter of her trial testimony. Moreover, these previously untranscribed Minutes of a proceeding conducted in an out-of-state jurisdiction were never in the prosecution's possession or control and are therefore not Rosario material.
This lack of possession or control is also what makes defendant's second Rosario claim fail. Defendant claims that the failure to turn over the Medical Examiner's autopsy tape violates Rosario. This claim was rejected by our Appellate Division in People v. Washington.
  Finally, defendant's claim that the audio tape of Jewel Smith's interview by Assistant District Attorney Luzio was not turned over is contradicted by the trial transcript, which reveals that defense counsel made direct reference to that interview during his cross-examination. Page 6
Defendant's other Brady claim that Jewel Smith gave exculpatory statements to the authorities in North Carolina is totally without factual merit in that the transcript submitted by defendant contains no substantive statements by Jewel Smith concerning the January 3, 1991 shooting.
Similarly defendant's final claimed Brady violations involving the failure to reveal alleged benefits received by Jewel Smith as a CPL § 640.10 material witness does [sic] not require a new trial. Initially, defendant does not submit any statement from his attorney stating that this information was never revealed to him. In fact, the District Attorney claims that redacted versions were turned over. Additionally, the District Attorney claims references to this adjudication were made on the record. Moreover, these allegations, which include lodging, benefits and meals while Jewel Smith was adjudged a "material witness," are not benefits given to induce her testimony nor are they facts which could be used for impeachment purposes. Thus, this is not "Brady" material. Additionally, had this information been revealed, it would not have warranted a different result. In fact, had the jury known about the Material Witness Order it might have bolstered the District Attorney's claim that Jewel Smith was afraid of the defendant. Reversal based upon this claim is therefore denied.
Defendant's final claim is that of ineffective assistance of counsel. Many of defendant's complaints were previously raised in defendant's CPL § 330 motion, which was denied by this Court by Order dated July 8, 1993. These complaints, however, regarding his attorney's representation during trial do not require reversal of the conviction.
The court notes that many of defendant's claims herein are belied by the court record, including the statement by his attorney of the unavailability of certain witnesses whom the defendant claims his attorney did not contact or call on defendant's behalf.
Moreover . . . the court concludes that under the totality of the circumstances the defendant received "meaningful representation."
(Resp. Ex. N at 4-8 (citations omitted).)

  The court held hearings on Hamilton's motion throughout the summer and into the fall of 1995, during which Douglas testified that he had told detectives on two occasions — once in his home and once while incarcerated in Connecticut — that Douglas was at the scene of the murder, and that Hamilton was not present when Cash was shot. Douglas's testimony was contradicted by that of his mother, who testified that she had been present when Page 7 Douglas was interviewed at home by detectives, and Douglas told the detectives that he had not been at the scene of the murder. As to the other occasion — in the Connecticut jail — he was contradicted by his former defense attorney in another case, Detective Scarcella, and a lieutenant of the New Haven Police Department. All three testified that Douglas refused to talk about Cash's murder.*fn3 (see Resp. Ex. O.)

  On April 2, 1996, the court denied Hamilton's motion in its entirety, finding:
Douglas has not proven to be a reliable witness. His testimony is filled with many inconsistencies and is contradictory to all the reliable evidence. He stated first that he told the police the same story at all times. After the testimony of his mother, Douglas then claimed he told two stories, one in the presence of his mother, the other in her absence. Furthermore, Douglas states that he spoke with Detective Scarcella prior to his meeting with Scarcella, Ms. Merkin, and Detective White. This is contrary to the testimony of all other witnesses. . . . Thus, this Court finds the "newly discovered evidence" lacking credibility and insufficient proof that the prosecution was in possession of this exculpatory evidence.
(Resp. Ex. R at 4-5.) On June 14, 1996, the Appellate Division granted Hamilton leave to appeal the hearing court's denial of his section 440.10 motion. (Resp. Ex. S.) Subsequently, the Appellate Division granted Hamilton's motion to consolidate his direct appeal with his appeal from the denial of the section 440.10 motion. (see Resp. Ex. T.)

  By application dated March 14, 1997, while Hamilton still had a coram nobis motion pending in the Appellate Division, see supra note 2, Hamilton petitioned this Court for a writ of habeas corpus, claiming that he was (1) denied the right to appeal as a result of the Page 8 missing transcript and the refusal of appellate counsel to perfect his appeal, (2) deprived of his due process and equal protection rights to a speedy trial, (3) denied effective assistance of appellate counsel, and (4) arrested on the basis of the false, coerced statement of Jewel Smith, in violation of his Fourth, Fifth, Sixth, and Fourteenth Amendment rights. (see Resp. Ex. AA.) I dismissed this petition on December 9, 1997, on the ground that Hamilton had failed to exhaust his available state remedies. (Resp. Ex. CC.) I also noted that most of the delay in perfecting Hamilton's direct appeal was attributable to the extensive postconviction litigation initiated by Hamilton at the trial court level. (Id. at 5.) The Second Circuit denied Hamilton's motion for a certificate of appealability on February 8, 1999. (Resp. Ex. DD.)

  By pro se motion dated September 3, 1998, Hamilton again moved to vacate his conviction pursuant to section 440.10. Hamilton raised new Brady and newly discovered evidence claims, including allegations that Darren Breeden, see supra note 2, had informed law enforcement officers prior to Hamilton's trial that Hamilton was not responsible for Cash's murder.*fn4 According to Breeden's affidavit, a dead person, Money Will Dawson, had killed Cash and spread the false rumor that Hamilton was responsible. Breeden stated that he tried to communicate this information to the government, but the prosecutor suppressed the information and tried to coerce him to testify falsely against Hamilton. Hamilton's second section 440.10 motion was also based on the improper ex parte discussions between the prosecutor and the trial court prior to trial; discussions Hamilton claimed deprived him of the effective assistance of Page 9 counsel. Hamilton also moved for the court to recuse itself on the basis that, because one of his claims involved court misconduct, the court was a necessary witness. Finally, Hamilton moved to set aside his sentence, specifying no grounds for doing so.*fn5 (see Resp. Ex. GG.)

  In a July 20, 1999, decision, the trial court granted Hamilton's second section 440.10 motion to the extent of ordering a hearing to determine the validity of his Brady claim regarding Breeden.*fn6 The court denied Hamilton's other claims.*fn7 As to recusal, the court stated:
Defendant has failed to state a basis for his assertion that the court committed improper conduct. All ex parte in camera proceedings occurred on the record. There was no discussion of any substantive matter concerning the trial during any of the conferences involving Darren Breeden or Jewel Smith. . . . [Hamilton] has failed to show that he was excluded from a material stage of his trial.
(Resp. Ex. II at 9-10.) As to the ex parte conversations, the court found:
The Assistant District Attorney stated on the record the basis for her requests for adjournments concerning Mr. Breeden, i.e., that she was attempting to arrange for him to testify under the terms of a cooperation agreement. The agreement was not finalized and Mr. Breeden did not testify at trial.
The court also discussed ex parte, and on the record, the Assistant District Attorney's requests for adjournments so as to arrange for Ms. Smith's testimony as a material witness. Since there was no discussion of substantive matters when the adjournments were requested, defendant had no right to be present for these discussions.
(Id. at 13.) The court recast Hamilton's ineffective assistance of counsel claims as a claim of newly discovered evidence and an allegation that the failure of the court to disclose the in camera Page 10 transcripts violated Hamilton's due process rights to a fair trial. As to the newly discovered evidence claim, the court wrote:
In the Breeden affidavit, the court finds that the proposed testimony of Mr. Breeden in which Money Will stated that defendant did not commit the murder would not be cumulative to testimony that was presented at defendant's trial.
The recantation by Jewel Smith is not newly discovered evidence and would be cumulative because she has recanted her testimony several times, both before and after trial and at the hearing on defendant's motion to set aside the verdict. The court finds that the proposed testimony of Mr. Breeden about his conversation with Money Will would not have been merely impeaching or contradicting former evidence . . .
Testimony from Mr. Breeden about Ms. Smith's statement that she did not witness the shooting would merely impeach or contradict her testimony at trial.
(Id. at 16-17 (citation omitted).)

  At the hearing, Breeden testified that Money Will Dawson had informed him shortly after Cash's murder that Dawson had killed Cash. Moreover, according to Breeden, Dawson indicated that he was attempting to spread the false rumor that Hamilton was responsible for killing Cash. Breeden testified that he had tried to communicate this exculpatory information to the government during debriefings, but that he was threatened and bribed with favorable plea deals to testify against Hamilton. Two detectives and two Assistant District Attorneys denied Breeden's assertions, testifying that the government had no knowledge that Breeden had any information on the Cash murder until Breeden told them that Hamilton had confessed in his presence. Until then, Breeden had been debriefed only regarding murders that either he or his drug organization had committed. (see Resp. Ex. KK.)

  At the same time that these hearings were being conducted, Hamilton, through retained counsel, filed a brief in the Appellate Division on August 27, 1999, alleging (1) that the Page 11 government committed numerous Rosario violations, (2) that the government knowingly withheld exculpatory information, in violation of Brady. (3) ineffective assistance of trial counsel, and (4) that the trial court denied him a fair trial by improperly marshaling the evidence, making prejudicial comments, instructing the jury erroneously, and allowing a material stage of the trial to proceed in Hamilton's absence. (see Resp. Ex. F.) In a pro se supplemental brief filed in the Appellate Division on September 10, 1999, Hamilton additionally claimed that the trial court (1) denied him a fair trial by conducting several in camera discussions with the prosecutor regarding Smith and Breeden, (2) erroneously denied his section 330.30 motion, and (3) erroneously denied his first section 440.10 motion. (see Resp. Ex. H.)

  On May 22, 2000, the Appellate Division, Second Department, unanimously affirmed Hamilton's judgment of conviction:
The defendant's claim that a detective's notebook was not disclosed to his attorney in a timely manner is belied by the record. The defendant concedes that a Rosario packet, which included the detective's notebook, was turned over to his attorney during jury selection. There was no Rosario violation since the People furnished the defendant with a copy of the notebook well before the time prescribed by CPL 240.45(1)(a).
The defendant also contends that he was prejudiced at trial because sealed transcripts of ex parte discussions between the trial court and the prosecutor were not turned over to him. However, the defendant concedes that the ex parte discussions pertained to efforts which were being made by the People to procure the appearance of the sole eyewitness at the trial. "Neither the defendant nor the prosecution is entitled to notice of an application for a material witness hearing, and neither party has standing to contest or to participate in a hearing on an application made by the other."
  The defendant was not denied the effective assistance of counsel because his attorney failed to call certain witnesses. At the time of trial, the alleged witnesses were unavailable or unknown to both the defendant and his attorney. Additionally, the defense counsel informed the court that one alibi witness was ill, resided in Connecticut and that "travelling [sic] [to court] would be impossible." The defense counsel further advised the court that another alibi witness was too frightened and had failed to appear Page 12 in court even though on the previous evening he had agreed to appear. The defense counsel's request for a continuance so he could attempt to persuade this witness to appear was denied. Counsel cannot be considered ineffective because alibi witnesses were too ill to come to court to testify or were unwilling to testify.
The defendant's claim that the People violated their obligation to disclose the existence of exculpatory material is also meritless, since the existence of the claimed exculpatory material was known, or should have been known, to the defendant.
The defendant's remaining contentions, including those raised in his supplemental pro se brief, are either unpreserved for appellate review or are without merit.
People v. Hamilton. 708 N.Y.S.2d 136, 136 (2d Dep't 2000) (citations omitted) (second alteration in original).On November 20. 2000, the Court of Appeals denied Hamilton's application for leave to appeal. People v. Hamilton. 95 N.Y.2d 935 (2000) (Ciparick, J.).

  While Hamilton awaited the trial court's decision on his second section 440.10 motion, he filed a third section 440.10 motion, dated June 2, 2000. Hamilton claimed that the government violated his Rosario rights by failing to disclose Detective Investigator Ponzi's handwritten notes of an interview he had conducted with one Richard Bush, wherein Bush claimed to have been told by Smith that Smith had witnessed Cash's murder and that Dawson was there. Hamilton also claimed ineffective assistance of trial counsel based on his attorney's alleged failure to call Kim Freeman and Hamilton's brother, James Hamilton, as alibi witnesses. Hamilton also claimed that Freeman's and Hamilton's alibi testimony constituted newly discovered evidence. (see Resp. Ex. NN.) Earlier, on November 17, 1999, Hamilton had moved to set aside his sentence pursuant to New York Criminal Procedure Law section 440.20, claiming that the nondisclosure of the sealed transcripts of the in camera discussions between the trial court and the prosecutor rendered his sentence illegal. (see Resp. Ex. NN.) Hamilton reiterated this claim in his June 2, 2000, section 440.10 motion. Page 13

  On November 22, 2000, the trial court denied Hamilton's Brady claim regarding Breeden, on which the court had held an evidentiary hearing, as discussed above, and denied Hamilton's third section 440.10 motion;

The court finds that the testimony of Joseph Ponzi, Dan Saunders, and Anne Gutmann was credible. The court finds that the testimony of Darren Breeden was incredible because of his demeanor in the answering of questions and the inconsistencies in his answers.
Detective Ponzi testified that he met with Richard Bush on September 11, 1991 in the Brooklyn District Attorney's office. He wrote the following statement made by Richard Bush in his notebook:
"Derrick Hamilton. Jewel came to visit Bush.
Money Will was there. Money Will is dead now."
Since neither Bush nor Ponzi testified at trial, then the above is not a statement of a witness.
(Resp. Ex. PP at 4, 6.) As to Hamilton's ineffective assistance of counsel claim, the court held that it was procedurally barred because Hamilton had raised it on direct appeal. (Id. at 7.) Hamilton's motion to set aside his sentence was also procedurally barred, as the grounds for that motion had also been decided by the Appellate Division. See Hamilton. 708 N.Y.S.2d at 136. Finally as to the alibi evidence, the court held:
The testimony of Kim Freeman and James Hamilton is not new evidence within the meaning of the statute since they were known to defendant and were listed as witnesses on the alibi notice. They could have been subpoenaed to testify at the trial.
[Hamilton's brother] testified at the hearing that he did not see defendant in the morning on January 4, 1991, the day of the murder. He saw defendant at a party in New Haven, Connecticut in the evening of that day.
  Defendant has failed to meet his . . . burden of showing that the proffered evidence was in fact newly discovered, i.e., that it was not discovered until after trial and could not have been discovered before trial with the exercise of due diligence, and is sufficiently probative to likely change the result if a new trial is granted. Page 14

 (Resp. Ex. PP at 9.) On February 7, 2001, the Appellate Division denied Hamilton leave to appeal the trial court's denial of the remainder of his second section 440.10 motion, as well as the denial of his third section 440.10 motion.

  In his petition for habeas relief dated March 16, 2001, before me now, Hamilton claims (1) ineffective assistance of trial counsel, due to prosecutorial and judicial interference, and lack of pretrial investigation and preparation; (2) that the government knowingly elicited perjured testimony from Smith at Hamilton's trial, and suppressed Smith's exculpatory statement in violation of Brady: (3) that the trial court erroneously denied Hamilton's section 400.10 motions based on newly discovered evidence, (4) that his constitutional right to be present at a material stage of his trial when the trial court ordered a read-back of testimony and delivered a supplemental charge to the jury in Hamilton's absence, (5) that the trial court violated Hamilton's right to appeal by belatedly unsealing the transcripts of the pretrial ex parte discussions between the trial prosecutor and the trial court; and (6) that the trial court's consciousness of guilt charge violated Hamilton's right to a fair trial.


 A. The Standard of Review

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Page 15 Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor. 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe. 260 F.3d 87, 93 (2d Cir. 2001).

  A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams. 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith. 123 S.Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S. Ct 1166, 1175 (2003)).

  Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist. 260 F.3d at 93 (citing Williams. 529 U.S. at 411); see also Yarborough v. Gentry, 124 S, Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but Page 16 objectively unreasonable."); Wiggins. 123 S.Ct. at 2535 (same). Interpreting Williams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; ...

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