The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge
MEMORANDUM DECISION AND ORDER
Three petitioners, pro se, file a motion attacking their sentences
28 U.S.C. § 2255, and initially move to have their individual cases
consolidated and considered jointly by the court. The court recognizes
that pro se pleadings should be construed in a liberal and deferential
manner. Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96,
30 L.Ed.2d 652 (1972). After a jury trial in this court, the petitioners
were convicted of operating a continuing criminal enterprise and
conspiracy to violate drug and firearm laws. Because each petitioner
raises identical issues about the reality and appearance of fairness of
their convictions and punishment, the court grants their motion and their
cases are consolidated into a single proceeding.
On October 19, 1995, a twenty-seven count indictment was filed charging
the petitioners with operating a continuing criminal enterprise ("CCE"),
in violation of 21 U.S.C. § 848, and conspiracy to distribute
cocaine, cocaine base (CRACK), methamphetamine (ICE), and marijuana, in
violation of 21 U.S.C. § 846. The petitioners were also charged with
various other weapons possession, firearms conspiracy counts, drug
possession and distribution felonies. A jury trial began on May 7, 1996
and terminated on July 2, 1996 with petitioners being convicted on all
counts. Tommy Walker was convicted operating a CCE, conspiracy to
distribute narcotics, conspiracy to distribute firearms, and several
counts of possession with intent to distribute narcotics; Gary Miller was
convicted of conspiracy to distribute narcotics, and several counts of
possession to distribute cocaine and crack cocaine; Raymond Cobbs was
convicted of conspiracy to possess with intent to distribute cocaine base
and methamphetamine, and unlawful possession of a firearm by a felon. A
sentencing hearing was conducted on January 23, 1997 for petitioner's
fellow defendant Miller with regard to the drug quantity attributable to
Miller and other defendants. At the hearing's conclusion, the court found
that the conspiracy
involved in excess of 1.5 kilograms of crack cocaine. Petitioner Walker
was sentenced to serve life imprisonment on the most serious counts with
concurrent terms on the lesser counts; Miller was sentenced to serve 188
months of imprisonment on each count, to be served concurrently, then
five years supervised release; Cobbs was sentenced to serve 262 months in
prison then four years of supervised release.
Petitioners and their co-defendants appealed their convictions and
sentences to the United States Court of Appeals for the Second Circuit,
and, on March 18, 1999, the appeals court affirmed all aspects of the
convictions for petitioners and their co-defendants. These three
petitioners then filed petitions for writs of certiorari to the United
States Supreme Court. The petitions were all denied on October 4, 1999.
Petitioners filed this motion attacking their sentences pursuant to
28 U.S.C. § 2255 on July 13, 2000.
Subsequent to the petition's filing, petitioners made two motions
seeking the court's permission to amend the petition pursuant to Federal
Rule of Civil Procedure 15(a) to add two new claims for relief to their
A habeas petitioner, like any civil litigant, is entitled to amend his
petition. Zarvela v. Artuz, 254 F.3d 374, 282 (2d Cir. 2001). "Sections
2254 and 2255 are generally seen in pari materia" and therefore "the
reasoning of [cases] in the context of § 2255 petitions applies
equally to § 2254 petitions." 235 F.3d 804, 815-16 (2d Cir. 2000).
The Anti-terrorism and Effective Death Penalty Act (the "AEDPA") affords
every prisoner a full opportunity to seek collateral review. Part of that
opportunity-part of every civil case-is an entitlement to add or drop
issues while litigation proceed.
Motions to amend habeas petitions should not be construed as second or
petitions. Corrao v. United States, 152 F.3d 188, 191 (2d Cir. 1998). The
standard for granting or denying a motion to amend is thus governed by
Federal Rule of Civil Procedure 15(a). The application of this Rule is
supported by 28 U.S.C. § 2242, which state that a petition for habeas
corpus "may be amended or supplemented as provided in the rules of
procedure applicable to civil actions," and Rule 11 of the Rules Governing
§ 2254 cases which provides that the Federal Rules of Civil
Procedure, "to the extent that they are not inconsistent with these
rules, may be applied, when appropriate, to petitions filed under these
rules." Even though Rule 15 requires that leave be freely given,
nevertheless, district courts retain the discretion to deny that leave in
order to thwart tactics that are dilatory, unfairly prejudicial or
otherwise abusive. Forman v. Davis, 371 U.S. 178, 181, 83 So. Ct. 227,
9 L.Ed.2d 22(1962). Nothing in the AEDPA appears to be inconsistent with
the application of Rule 15, which promotes consideration of all of a
party's claims on the merits. Farma v. Commissioner of Correctional
Services, 235 F.3d 804, 808 (2d Cir. 2000).
The court finds no apparent abuse by petitioners in the proposed
amendments to their petition, and no prejudice to the government which
would result therefrom, therefore, the claims raised in petitioners'
amendments will be forthwith addressed by the court in connection with
their § 2255 motion.
In their first motion seeking to add another claim to their § 2255
motion, petitioners assert that their Due Process rights were violated
under the holding in Maryland v. Brady, 373 U.S. 83, 83 S.Ct. 1194,
10 L.Ed.2d 215 (1963), when the Government did not meet its responsibility
to disclose favorable impeaching evidence to the defense. Walker alleges
that a key witness against petitioners was, Damien McCovery, who had been
arrested prior to the
trial and had been cooperating with the criminal investigation of
Walker since his arrest. This claim could not be made in earlier
proceedings because petitioner Walker did not come into possession of
documentary proof of these allegations until June 2001.
Prosecutorial non-disclosure of exculpatory evidence does not assume
unconstitutional dimensions unless the undisclosed evidence is "material
. . . to guilt or to punishment." Brady, 373 U.S. at 87, 83 S.Ct. at
1197. "Since impeachment evidence is exculpatory under Brady. the
question we ask in a prosecutorial non-disclosure setting is `whether the
omitted evidence is of sufficient materiality to call for a new trial.'"
United States v. Sanchez, 917 F.2d 607, 617 (1st Cir. 1990)(quoting
United States v. Imbruglia, 617 F.2d 1, 4 (1st Cir. 1980), cert. denied,
499 U.S. 977, 111 S.Ct. 1625, 113 L.Ed.2d 722 (1991)). The materiality
test under Brady is not met unless the non-disclosure of evidence
"undermine[s] confidence in the outcome of the trial," United States v.
Bagley, 473 U.S. 677, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985),
which can occur if "there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding
would have been different." Id. at 682, 105 S.Ct. at 3383; Sanchez, 917
F.2d at 617.
In their direct appeal to the Second Circuit, petitioners claimed that
the prosecution suborned perjury in employing the testimony of Damien
McCovery. In finding the testimony of this witness to be discredited, the
Second Circuit stated that, "[a] reading of the transcript of McCovery's
testimony shows an unreliable, inarticulate witness who had a faulty
memory and often misunderstood the questions posed to him." United States
v. Blackwell, et. al., 179 F.3d 846, 1999 WL 163980 at ** 1, (2d Cir.
March 18, 1999).
Furthermore, attached to petitioner Walker's motion papers is a letter
from Joseph T.
Flood, Esq., a criminal defense attorney seeking information. He
had spoken with Salvatore J. Piemonte, Esq., Walker's trial and appellate
attorney, concerning Damien McCovery, who was going to testify against
his client in a pending case. Attorney Flood stated in his letter that he
had read the testimony McCovery had given in Walker's case and "it is
apparent [on cross examination] that Sal [Piemonte Walker's
attorney] had at his disposal numerous additional documents including
McCovery's rap sheet, a statement McCovery gave to [co-defendant]
Prentise Lindsey, and other materials."
This court's review of McCovery's testimony concurs with the Second
Circuit's opinion of him as a witness. Petitioners' trial counsel was
given ample opportunity to make a record from which he could argue that
the witness was biased because of a particular hope or expectation
Barrett v. United States, 965 F.2d 433, 439 (1st Cir. 1982). Petitioners'
Sixth Amendment rights were adequately protected, and defense counsel,
through extensive cross-examination, fully established the potential bias
of McGovern stemming from his cooperation with the government.
Additionally, petitioners have not shown that there is a reasonable
probability that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. United States v.
Bagley, 473 U.S. at 682, 105 S.Ct. 3375.
In their second motion to add another claim, petitioners contend that
their sentences were made illegal by the Supreme Court's holding in
Apprendi v. New Jersey. 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 444
(1995), because the jury did not determine that they were guilty of every
element of the crimes with which they were charged beyond a reasonable
doubt. In Append, the Supreme Court held that "[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime ...