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March 22, 2004.

LAVON RICHARDSON, Petitioner, -against- CHRISTOPHER ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent

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


Petitioner Lavon Richardson, an inmate at the Five Points Correctional Facility,*fn1 seeks habeas corpus relief from a judgment of conviction entered after a jury trial in state court. I held oral Page 2 argument by telephone conference on February 13, 2004. For the reasons set forth below, the petition is denied.


  On June 13, 1987, Joseph Morris shot and killed Jeffrey Stevenson during a robbery on Malcolm X Boulevard in Brooklyn, New York. Richardson was an accomplice to the robbery and murder, as was a third codefendant at the state trial, Jacques Webb ("J. Webb"). The robbery was witnessed by Stevenson's friend Brandon Holloman, who was a key prosecution witness at trial. Richardson was charged with one count of murder in the second degree, one count of robbery in the first degree, one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree. On May 4, 1'988, Richardson was convicted by a jury of all counts. On June 3, 1988, Richardson was sentenced to concurrent prison terms of seventeen-and-one-half years to life on the murder count, five to fifteen years on the robbery count, five to fifteen years on the second-degree weapon-possession count, and two to six years on the third-degree weapon-possession count.

  Shortly before the three codefendants-Richardson, Morris, and J. Webb-were to be sentenced, the trial court received sworn statements by J. Webb's mother, Rose Webb ("R. Webb"), and her friend, Brenda Wisdom. (June 3, 1988 Sentencing Tr. at 5 ("S. Tr.").) The handwritten statements were sworn to on May 14 and 16, 1988, but not submitted to the court until May 25, 1988. (Id. at 5-6.) The statements set forth an incident on a bus involving the two women and a juror on Richardson's (and J. Webb's) trial. (See Id. at 7-10.) This incident occurred on May 2, 1988-two days before the jury returned its guilty verdict. (Id. at 6.) After asking, rhetorically, why R. Webb had Page 3 waited nearly two weeks before telling her son's lawyer about this incident (Id. at 7), the court decided not to have a hearing regarding the incident, stating:
When I saw the affidavits-I called them affidavits, I assume they are-precipitously I said I want to talk to these two witnesses and I want to talk to the juror. I then had an opportunity to reflect on it. There's nothing more that can be said by these individuals, if they were called as witnesses, other than what was said in the papers.
Now, this is the decision and the order of the Court in this matter. The alleged incident took place on the 25 number bus on May 2nd while the trial was going on. The Court delivered its charge on May 3rd to a full jury with alternates. Verdict was returned on May 4th and the jury found these defendants, each and every one of them guilty of all counts. . . .
If this incident occurred the affiant could have, should have, and undoubtedly would have called it to her son's lawyer's attention who in turn I am certain would have called it to the Court's attention at a time when the Court would have heard the allegation and the juror with all the alternate jurors available to fill in should it be determined the juror had either displayed prejudice or had been tampered with. For reasons best known only to the affiants it was almost two weeks after the jury verdict, the so-called affidavits were presented to the Court, practically on the day of sentence. It's one of the oldest axioms in the law that jurors may not impeach their own duly rendered verdict, statements averring their own misconduct within or without the jury room. There is one narrow exception to the rule against impeachment in cases and those are cases which involve an outside interference. The outside interference in this case, if any, was the conduct of the affiant, the mother of the defendant [i.e., R. Webb, mother of J. Webb] in attempting to or engaging a juror in conversation during the course of a trial.
At best, if credited, affiant's conversation with the juror would attempt to influence the jury and common sense would indicate that the affiant's motive was to prejudice the juror in favor of and not against her defendant son.
The law jeralously [sic] guards the sanctity of the jurors, their motives, their arguments and final determination by verdict during their duties as jury men and women. Few rules are more deeply rooted in the jurisprudence of this State than one designed to free jurors from harassment in performance of their duty so to protect the integrity of their verdict.
. . .
  A hearing is unnecessary since all the allegations are set forth in supporting affidavits. The Court therefore denies the defendant's motion to set aside the verdict. That is the decision and the order of the Court. Page 4

 (Id at 9-12.)

  After this ruling, J. Webb's attorney argued that the government itself had asked the court to conduct a fact-finding hearing. (Id. at 12-13.) Though noting that it was "refreshing" to see defense counsel and the prosecutor "at one" on the issue (Id. at 14), the court did not change its decision:
This is an issue for the Court to decide not for the district attorney, not for the defendant. I made my decision. Your application is denied. An appellate court can review if I'm wrong. We can't have a situation where these things are permitted to continue and then every trial becomes a trial without end.
(Id at 14.)

  In remanding the matter to the trial court "to hold a hearing on the issue of whether the purported juror misconduct did occur and, if so, whether it affected a substantial right of the defendant," the Appellate Division held that "[i]t was error for the Supreme Court to summarily deny the defendant's motion to set aside the verdict on the ground of juror misconduct without first holding a hearing to make findings of fact essential to the determination thereof." People v. Richardson, 571 N.Y.S.2d 755, 755 (2d Dep't 1991) (quotation marks omitted).

  At the hearing on October 17, 1991, R. Webb testified that on May 2, 1988, the day she remembers J. Webb and Richardson testifying (Oct. 17, 1991 Hr'g Tr. at 3-4), she and her friend Wisdom caught the B25 bus at Fulton Street after leaving the courthouse. (Id. at 4-5, 7.) Once on the bus, Wisdom sat down but R. Webb remained standing. (Id. at 5.) R. Webb thereupon noticed a juror in Richardson's (and J. Webb's) trial sitting nearby. (Id. at 5-6.) It was juror number three. (Id. Page 5 at 6.) R. Webb "whispered" to Wisdom, "Here's one of the jurors." (Id. at 8 (quotation marks omitted).) Shortly thereafter, a friend of the juror boarded the bus. (Id.) The juror told her friend that she was on jury duty and her friend inquired as to the nature of the case. (Id.) The juror told her friend that the case involved "three young black boys that killed another young black boy." (Id. at 8-9 (quotation marks omitted).) Later, as the juror's friend got off the bus, she said to the juror, "When you give in your vote, give him life." (Id. at 9 (quotation marks omitted).) The juror responded, "That's what I'm going to do." (Id. (quotation marks omitted).) This exchange upset R. Webb, who then went over to the juror and said, "Look at the evidence. . . . They're not all guilty of the crime." (Id. at 10 (quotation marks omitted).) The juror was "amazed" to see R. Webb, and the juror "shushed" her by placing a finger to her (the juror's own) mouth. (Id.) Before getting off the bus, the juror said to R Webb, "I'll pray for you." (Id. (quotation marks omitted).)*fn2

  R. Webb said nothing of this incident to J. Webb's lawyer until May 13, 1'988. (Id. at 12.) R. Webb testified that the delay was due to her ignorance of the law and her emotions at "losing" her son. (Id.) J. Webb's lawyer directed R. Webb and Wisdom to immediately write statements describing the incident (Id. at 14-15), which are the handwritten, sworn statements discussed by the trial court in the sentencing minutes quoted above.

  Wisdom testified to a substantially similar version of events, and I note only some of the more important differences. Wisdom testified that when R. Webb pointed out the juror on the bus, she did not whisper, but rather spoke in "a normal voice." (Id. at 46-47.) According to Wisdom, juror Page 6 number three did not tell her friend that she was "going to" vote to give the defendants life, but rather that "she was seriously thinking about doing that." (Id. at 48, 50.) R. Webb then told the juror, "You know, you really should listen to the evidence before you give him, you know, [b]efore you just say you're thinking about doing that . . . because . . .[t]hey all aren't guilty." (Id. at 48-49 (quotation marks omitted).) On cross-examination, the prosecutor elicited that the portion of her statement, "because they're all not guilty," did not appear in her written statement submitted to the court prior to sentencing. (Id. at 56.)

  Curley Foster, juror number three at the trial, (see Supplemental Br. for Def.-Appellant at 6-7 (Apr. 1992)),*fn3 testified that she "exchanged greetings with an acquaintance, Gwendolyn Morgan," and that the two "talked for no more than a couple of minutes about sundry things." (Id. at 7.) "Foster admitted that she `could have mentioned' that she was on jury duty and, then, that she did mention it." (Id.) She denied, however, that she or Morgan "made the comments attributed to them." (Id.) Before Foster left the bus, R. Webb "approached her and said, `My son is innocent,' but nothing else. Foster gestured,'Shh,'and replied, `I'll pray for you.' [Wisdom] said,'Thank you.' Morgan was still on the bus at the time of this exchange." (Id.)

  Though Foster recalled the judge's instruction not to discuss the case and to report any attempt made by anyone to talk to a juror about the case (Id.).

  Foster did not report anything to the court, explaining that she thought nothing of it, as she had ended the conversation. But, at the time, she admittedly knew it was improper for Webb to have spoken to her, believed she should tell the Page 7 judge ("my mind told me to tell the Judge"), and was bothered enough to tell her daughter about it.

 (Id. at 7-8 (citation omitted).) Foster testified that "[R.] Webb's comment did not influence her opinion, which she first formed during deliberations." (Id. at 8.)

  Morgan, Foster's church acquaintance, testified that she (Morgan) "did not say anything until Foster got ready to leave. They then exchanged `hellos' and Foster volunteered that her feet were tired because she was on jury duty all week, told Morgan she would see her on Sunday, and got off; they said nothing else in this `few seconds' interchange." (Id. (citation omitted).) Morgan "avowed that [R.] Webb had not approached Foster, nor had she seen either [R. Webb or Wisdom] on the bus or anyone approach Foster." (Id.) "Morgan recalled that the bus conversation had occurred during a warm summer month." (Id. at 9.)

  R. Webb and Wisdom were recalled by defense counsel on March 10, 1992 and testified that Morgan was not the woman whom they had seen with Foster on the bus. (Mar. 10, 1992 Hr'g Tr. at 3-6, 7-9.) After completion of the testimony, the hearing court held oral argument on March 12, 1992.

  On April 1, 1992, the hearing court denied Richardson's motion for a new trial. People v. Richardson Indictment No. 5351/87, slip op. (N.Y. Sup. Ct, Kings County Apr. 1, 1992). The court first held that, even assuming R. Webb's version of the events was true (Id. at 3), the motion would have to be denied:

  To assume this encounter, as described by [R. Webb], would influence the juror would lead to the conclusion that an encounter on a bus, lasting approximately twenty seconds, would wipe away all of the trial judge's voir dire instructions, all of the trial judge's instructions during the charge, and, all of Page 8 the trappings in the courtroom designed to impress citizens of the seriousness of the proceeding.

To assume this twenty second encounter had a significant impact on this juror would place form over substance. It would mean no verdict is secure since in large cities where jurors must come and go on public taransportation [sic], have lunch in local coffee shops, there will always be fleeting exchanges between jurors, their friends, and acquaintance and members of the defendant's family. To suggest that these informal fleeting comments would impact a juror can only be sustained by assuming that none of the parties take[s] the process, or the Court's instructions, seriously.
Id. at 4.
  The court went on to make a credibility determination:
Although, in my view, there are no grounds to set aside the verdict even if the version of events most favorable to the defendant is believed, I make a finding of fact since this matter was returned by the Appellate Division for that purpose.
I believe the mother and her friend now recall the conversation in a way helpful to her son.
The juror's version of the event in my mind, however, seems more reasonable and her demeanor convinces me that the mother approached the juror and the juror simply said "I will pray for you."
Finally, defendant offers the result of a polygraph examination showing that the mother's friend was not lying. Although in my view, the results of the lie detector tests in certain limited situations may be considered, I am also aware that they are not as reliable as other scientific evidence. Moreover, polygraph tests only have significance if both sides are given the opportunity to have an expert examine the witness.
Since it would clearly be contrary to public policy to require those citizens who serve on jury duty to now submit to polygraph examinations, I conclude that the fact that the People could not have the witnesses examined by a polygraph expert of their choosing, coupled with my general awareness of the unreliability of polygraph tests, that in the context of this case, the results of the polygraph have no significance whatever.
Id at 4-5.

  Richardson appealed this decision and his judgment of conviction to the Appellate Page 9 Division, claiming that (1) the trial court's ruling concerning the scope of permissible cross-examination of the government's rebuttal witness was unduly restrictive; (2) the trial court denied Richardson's right to a fair trial when it admonished defense counsel in front of the jury; (3) the trial court failed to properly instruct the jury on the factors it should consider when determining whether a pretrial statement made by Richardson was voluntary; (4) the trial court should not have admitted certain testimony by the victim's mother; (5) his sentence was excessive, and (6) the hearing court erred in ruling that Richardson had failed to establish his claim of juror misconduct affecting a substantial right.

  On August 31, 1992, the Appellate Division affirmed Richardson's judgment of conviction. After summarizing the evidence at the hearing, the court held, "We find on this record that the defendant failed to carry his burden of establishing that the alleged misconduct by Juror Number 3 may have affected a substantial right of the defendant." People v. Richardson, 587 N.Y.S.2d 947, 948 (2d Dep't 1992) (quotation marks omitted). The court then turned to the alleged trial errors:
[W]e note that although the trial court's ruling with respect to the scope of the defendant's cross-examination of the People's rebuttal witness was arguably somewhat restrictive, it did not constitute reversible error, particularly since curative instructions were given. The defendant's contention that the trial court's jury instruction regarding the voluntariness of the statement made by him to law enforcement officials was incomplete is unpreserved for appellate review, and, in any event, is without merit.
The defendant's sentence was not excessive. The defendant's remaining contentions, including those raised in his supplemental pro se brief, are without merit.
Id. (citations omitted). On August 31, 1'992, the Appellate Division denied Richardson's application for further oral argument. People v. Richardson. 587 N.Y.S.2d 997 (2d Dep't 1992). Leave to appeal to the New York Court of Appeals was denied on October 29, 1992. People v. Richardson Page 10 80 N.Y.2d 976 (1992) (Titone, J.).

  On April 24, 1997, Richardson filed the instant petition for a writ of habeas corpus, claiming that (1) the trial court's ruling concerning the scope of permissible cross-examination of the government's rebuttal witness was unduly restrictive; (2) the trial court denied Richardson's right to a fair trial when it admonished defense counsel in front of the jury; (3) the trial court failed to properly instruct the jury on the factors it should consider when determining whether a pretrial statement made by Richardson was voluntary; (4) the trial court should not have admitted certain testimony by the victim's mother; and (5) the hearing court erred in ruling that Richardson had failed to establish his claim of juror misconduct affecting a substantial right. Richardson's petition was originally assigned to then-District Judge Reena Raggi.

  By letter dated June 27, 1997, Richardson informed Judge Raggi of "some very recent information" that one Lashanda Edwards had provided him. (Letter from Richardson to the Hon. Reena Raggi, Judge, E.D.N.Y., dated June 27, 1997 ("June 27, 1997 Letter")). Appended to this letter was a portion of the testimony of Holloman (the victim's friend and an eyewitness to the murder) at the trial of Troy Moore, a fourth individual (along with Richardson, Morris, and J. Webb) involved in the robbery and murder of Stevenson. At Richardson's trial, Holloman had testified that one of the assailants-he did not know which-had "snatched" Stevenson's gold chain. (Tr. at 48; see also Id. at 49 ("I don't know which one took [the chain]. I just seen a hand grab the chain.").) According to the minutes provided by Richardson, however, Holloman testified differently when cross-examined at Moore's trial:

  Q. But you did not tell Detective Rosalli on the evening of June 13th that Page 11 you saw one of the young men snatching the chain from off the neck of Jeffrey [Stevenson]; did you?

A. At that time, I was in shock. I said he got shot, three guys reached down and went for his chain, and they left and went around the coiner.
Q. But you didn't tell Detective Rosalli that you saw somebody reaching for the chain?
A. At that time?
Q. At that time.
A. I said he got shot.
Q. You didn't tell him about the chain?
A. Not then.
Q. In fact, this whole incident about the snatching of the chain is something that you created out of your own imagination; wasn't it, Mr. Holloman?
A. Then why wasn't it found on the scene?
Q. That's not a question of what happened to the chain. The question is: Did you see any individual reaching for that chain?
A. The only thing that was left was his heart-shaped name plate with him and his girlfriend's name left on it.
Q. And how did you know that was the only thing left; did you see that there?
A. That's what was laying on the ground.
Q. So you presumed that somebody had taken the chain off his neck; is that correct?
A. The chain was gone. It wasn't there when they left.
Q. I understand. The fact that the chain was not there is different from saying you saw somebody taking the chain. The question is: Did you see someone taking the chain?
A. When the crowd left, the chain was gone, so I presumed they took it.
Q. You presumed that they took it?
A. If it was not there when I came upon the body when they left, that would be anyone's natural reaction.
(June 27, 1997 Letter (attachment).)

  Richardson asked Judge Raggi to hold the petition in abeyance or allow him to withdraw it while he exhausted any possible claims that might be based on this new information. (June 27, 1997 Letter at 2.) In a July 9, 1'997 order, Judge Raggi noted that while Richardson was always Page 12 free to withdraw his petition, the statute of limitations set forth in 28 U.S.C. § 2244(d) already appeared to warrant dismissal of his petition. After the timeliness issue was briefed, Judge Raggi dismissed the petition as time-barred on December 15, 1997. On September 25, 1998, the Second Circuit vacated the order of dismissal and remanded for further proceedings in light of its then-recent decision in Ross v. Artuz. 150 F.3d 97 (2d Cir. 1998).

  On January 30, 1998, Richardson, acting pro se, moved to vacate his judgment of conviction, pursuant to New York Criminal Procedure Law § 440.10, based on Holloman's testimony at Moore's trial, set forth in pertinent part above. Richardson also moved to vacate his sentence, pursuant to New York Criminal Procedure Law § 440.20, claiming that the sentencing court should not have considered a screwdriver Richardson was carrying at the time of the robbery and murder. The court denied the motions without a hearing:
On an application to vacate a judgement of conviction, the party challenging the conviction bears the burden of coming forth with allegations sufficient to create an issue of fact. In asserting the claim that his conviction was based upon perjured testimony, the defendant has not submitted the required sworn allegations of fact in support of such contention. Moreover, the court must deny a motion which is based upon claims which the defendant could have raised on direct appeal but unjustifiably failed to do so. Assuming arguendo. that the defendant's claim that the conviction was based upon perjured testimony was valid, sufficient facts appear on the record of the proceedings underlying the judgement to have permitted adequate review of such claim upon defendant's previous appeal from the conviction. Specifically, the defendant was aware of the testimony of Brandon Holloman, the person defendant alleges perjured himself at trial, at the time of defendant's direct appeal. Having failed to appropriately raise this claim, the defendant may not now assert it.
  Finally, the court must deny a motion to vacate a judgment when the ground or issue raised relates solely to the validity of the sentence and not to the validity of the conviction. Thus inasmuch as the defendant's remaining contention is that his sentence is excessive, the court may not entertain the motion on this basis. In any event, there is no merit to defendant's claim that his Page 13 sentence was excessive. . . . The top charge for which the defendant was convicted was murder in the second degree. By law, the defendant was subject to a minimum sentence of fifteen to twenty-five years incarceration, and a maximum sentence of twenty-five years to life. The defendant was sentenced to seventeen years to life. The defendant's sentence was well within the permissible range, and in light of the seriousness of the offense for which the defendant was convicted, it appears the trial court's decision was reasonable.
Moreover, in defendant's supplemental memorandum dated April 20, 1998, in reply to the prosecutor's answer, defendant contends that his sentence is excessive as he was sentenced to two to six more years than co-defendant Webb. This factor standing alone is an insufficient basis for modifying a sentence. There is no requirement that all participants in a crime be sentenced equally; such factors as extent of actual involvement and circumstances of individual's background can, and indeed should, be ...

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