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
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
(Affidavit of Frank to June 15, 1994, ¶ 14, annexed as
Exhibit D to the Affirmation of Petitioner dated April
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.
"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
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.
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