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NUNEZ v. GREINER

United States District Court, S.D. New York


February 6, 2004.

HUGO NUNEZ, Petitioner -against- CHARLES GREINER, Superintendent of Green Haven Correctional Facility, Respondent

The opinion of the court was delivered by: HENRY PITMAN, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Petitioner in this habeas corpus proceeding moves for discovery concerning his claim that the prosecution improperly failed to disclose a deal with one of the principal prosecution witnesses. For the reasons set forth below, the motion is denied.

Plaintiff was convicted in the New York State Supreme Court, Bronx County, on December 8, 1993 of the crimes of murder in the second degree, four counts of attempted murder in the second degree and criminal possession of a weapon in the second degree. By that judgment petitioner was sentenced to concurrent indeterminate sentences, the longest of which was twenty-five years to life. Petitioner's convictions were affirmed on direct appeal. People v. Nunez, 242 A.D.2d 449, 662 N.Y.S.2d 246 (1st Dep't 1997), leave to appeal denied, 91 N.Y.2d 877, 691 N.E.2d 648, 668 N.Y.S.2d 576 (1997).

  In this proceeding, petitioner claims, among other things, that the prosecution failed to disclose a cooperation Page 2 agreement that promised favorable treatment to one of its witnesses and did not correct the record when that witness testified that he had no agreement with the prosecution. Petitioner argues that these events violated Brady v. Maryland, 373 U.S. 83 (1963), Giglio v. United States, 405 U.S. 150 (1972) and Napue v. Illinois, 360 U.S. 264, 269-70 (1959) and their progeny. Specifically, petitioner claims that the prosecutrix improperly failed to disclose that Nelson Cruz — who was called by the prosecutrix as an eyewitness to the crime — had been promised some form of leniency in connection with his own criminal case in return for his testimony against petitioner. Cruz denied the existence of any such agreement during his trial testimony. Petitioner seeks to conduct discovery concerning this claim.

  Without expressing any opinion on the ultimate merit of petitioner's claims, it does not appear that the claim has been conjured up entirely out of petitioner's imagination. Among other things, petitioner has submitted an affidavit from Cruz's former attorney, Frank Valentine, which states, in pertinent part:

NELSON CRUZ . . . informed me, that he had been told by an Assistant District Attorney, to whom he spoke about [the homicide case against petitioner], that a specific detailed promise could not be made, because the [homicide case against: petitioner] was still pending, but that he was assured, that he would benefit from his cooperation.
  (Affidavit of Frank to June 15, 1994, ¶ 14, annexed as Exhibit D to the Affirmation of Petitioner dated April Page 3 11, 2003 ("Petitioner's 4-11-03 Aff."). Petitioner also refers to an affidavit executed by Cruz in which he swore that he had entered into an oral agreement with an Assistant District Attorney from Bronx County pursuant to which he agreed to testify against petitioner in return for early parole (Petitioner's 4-11-03 Aff., ¶ 38). Petitioner candidly admits that Cruz subsequently disavowed the statements in this affidavit. The affidavits submitted in connection with the present motion also note that petitioner's Brady-Giglio-Napue claim was asserted in two state-court collateral attacks on petitioner's conviction. Petitioner was represented by retained counsel at both of these proceedings. Petitioner first moved in 1994 to set aside his conviction pursuant to New York Criminal Procedure Law Section 440.10 asserting the same Brady-Giglio-Napue claim that is asserted here. The Trial Court held an evidentiary hearing on this motion at which the following individuals testified: (1) the Assistant District Attorney who prosecuted petitioner; (2) the two Assistant District Attorneys who prosecuted Cruz, and (3) Frank Valentine. In addition, petitioner subpoenaed and offered the files of the Department of Correctional Services concerning Cruz. The motion to set aside petitioner's conviction was denied on substantive grounds.

  Petitioner filed a second motion pursuant to Section 440.10 asserting this claim in 1999. A second hearing was held, and Cruz testified at this hearing. Again, the motion was denied, this time both procedural and substantive ground. Page 4

  "Although a `habeas petitioner, unlike the usual civil litigant in federal court is not entitled to discovery as a matter of ordinary course,' discovery may be granted upon a showing of `good cause.' " Drake v. Portuondo, 321 F.3d 338, 346 (2d Cir. 2003), quoting Bracy v. Gramley, 520 U.S. 899, 904 (1997). "`[W]here specific allegations before the court have shown reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry.'" Bracy v. Gramley. supra, 520 U.S. at 908-09, quoting Harris v. Nelson, 394 U.S. 286, 300 (1969).

  In view of the fact that two evidentiary hearings have already been held, "good cause" requires that petitioner show that these two hearings did not provide him with an adequate opportunity to develop the record. Maynard v, Dixon, 943 F.2d 407, 412 (4th Cir. 1991) (district court did not abuse discretion by denying discovery to habeas petitioner who had opportunity to develop the record in prior state proceeding). Petitioner has failed to sustain this burden. To the contrary, petitioner cites no limitation on his ability to develop the record in connection with his two state-court collateral attacks. In the absence of a showing that the prior state proceedings did riot provide peti-tioner an adequate opportunity to develop the facts, there is no basis to permit further discovery. Page 5

  Since petitioner has failed to show why the prior state proceedings did not provide an adequate basis for petitioner to develop the record, his motion to conduct discovery is denied.

20040206

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