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February 11, 2004.

TOMMY WALKER, Petitioner,

The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge


Three petitioners, pro se, file a motion attacking their sentences pursuant to Page 2 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 Page 3 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 petition.

  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 successive Page 4 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 Page 5 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. Page 6 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 ...

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