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United States District Court, S.D. New York

March 22, 2004.

JOHNSON FOY, -v- JOHN E. SABOURIN, Plaintiff, Respondent

The opinion of the court was delivered by: DENISE COTE, District Judge


On July 6, 2002, Johnson Foy ("Foy") filed an untimely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1992 state conviction for robbery in the first degree following a jury trial.*fn1 Foy contends that the prosecution failed to disclose at trial that it had granted a witness immunity in exchange for testimony. Foy contends that his petition is timely because he only recently discovered evidence supporting this assertion.

  On January 8, 2003, the case was referred to Magistrate Page 2 Judge Henry B. Pitman for a Report and Recommendation ("Report"), which was issued on December 17, 2003. The Report recommends that the petition be denied as untimely, and that a certificate of appealability not issue. Foy has filed objections to the Report. This Opinion adopts the Report. The petition is denied.


  The facts established at trial are set forth in the Report, and are summarized here. On December 31, 1991, petitioner's nephew, Travis Foy, hailed a gypsy cab in the Bronx being driven by Jose Gonzalez ("Gonzalez"). Travis Foy directed Gonzalez to stop the car in the vicinity of 132nd Street and Lenox Avenue. When Gonzalez stopped the car, Travis Foy struck him over the head, and Foy and a third man appeared at the scene. After a struggle in which Foy pulled out a knife and inflicted several serious injuries on Gonzalez, Foy stole Gonzalez's money and wallet. Foy and Travis Foy fled the scene in Gonzalez's cab, and the third man ran off on foot.

  Shortly thereafter, acting on information given by Gonzalez, Travis Foy and Foy were stopped in the stolen cab. Gonzalez was brought to the scene, and identified Foy and Travis Foy as the men who had robbed him. A laundry ticket in Gonzalez's name was found on Foy; Gonzalez's wallet and a knife were recovered from the cab. Foy and Travis Foy were placed under arrest. While the police were handcuffing Travis Foy, Gonzalez stabbed him with a screwdriver in his left cheek and jaw. Page 3

  Gonzalez testified against Foy and Travis Foy before the grand jury. In accordance with N.Y.C.P.L. § 190.40, Gonzalez received transactional immunity for his testimony. See Gold v. Menna, 25 N.Y.S.2d 33, 37 (N.Y. 1969) (Section 190.40 operates to grant "transactional immunity from prosecution for any crime revealed by a witness' testimony before the grand jury"). Foy was indicted on two counts of robbery in the first degree and one count of robbery in the second degree.

  At Foy's trial, Gonzalez testified for the prosecution.*fn2 Foy testified at trial and offered a different version of the events. According to Foy, he and Travis Foy hailed Gonzalez's cab together. Gonzalez stopped six or seven buildings away from their destination, and Foy demanded that he proceed to the exact location. After a dispute about the appropriate fare, Foy tendered less money than demanded by Gonzalez, and Gonzalez stabbed Travis Foy with a screwdriver in the face. Foy and Travis Foy were arrested in Gonzalez's cab while driving to Columbia-Presbyterian Hospital to get assistance for Travis Foy. Foy testified that Gonzalez stabbed Travis Foy again after the two men were arrested.

  On November 11, 1992, Foy was convicted by a jury of one count of robbery in the first degree. Foy was sentenced on December 15, 1992, to ten and one-half to twenty-one years in Page 4 prison, to be served consecutively to time imposed for a violation of parole in connection with an earlier conviction.

  On July 7, 2001, Foy was transferred to the same state correctional facility where Travis Foy was serving his term of incarceration. According to Foy, he then learned for the first time that Travis Foy had obtained documents through discovery in a federal civil rights action showing that Gonzalez had been charged with stabbing Travis Foy with a screwdriver, but that the charges against him had been dismissed.

 State Court Proceedings

  The Report describes Foy's attacks on his conviction. Those most relevant to the analysis that follows include Foy's direct appeal, and two collateral attacks.

  Foy appealed his conviction to the Appellate Division of the Supreme Court by asserting, inter alia, that the defense was improperly limited in its cross-examination of Gonzalez concerning immunity he had received for his grand jury testimony. On October 3, 1995, the Appellate Division denied Foy's claims.

  In 1992, after the jury's verdict, and before sentencing, Foy moved pro se to set aside his conviction pursuant to N.Y.C.P.L. § 330.30 by claiming, inter alia, that the prosecution failed to disclose that it had granted immunity to Gonzalez concerning his assault on Travis Foy. Foy's motion was denied. He did not appeal the ruling.

  More recently, on January 26, 2002, Foy filed a motion to Page 5 vacate his conviction pursuant to N.Y.C.P.L. § 440.10, claiming that the prosecution "failed to disclose to the defense the disposition of Jose Gonzalez's case," which, according to Foy, constituted a Brady violation. In addition, Foy claimed that his conviction "was pr [o]cured by misrepresentation and fraud on the part of the District Attorney's Office. They knew the disposition of Jose Gonzalez's case and purposely and wilfully withheld such information from the defense." On March 5, 2002, Foy's motion was denied by Justice Dora L. Irizarry ("Justice Irizarry"). Justice Irizarry found that Foy's claim that the prosecutor failed to inform him of "the disposition of Jose Gonzalez's case" was belied by the trial record. According to Justice Irizarry, "there is no merit to defendant's current claims that he only recently became aware of the arrest of Jose Gonzalez and that the prosecutor improperly withheld information regarding a `case' against Jose Gonzalez." Foy sought leave to appeal Justice Irizarry's ruling to the Appellate Division, which was denied on June 6, 2002.

  On July 6, 2002, Foy filed the present action in this Court. Upon an initial review of the petition, Chief Judge Michael B. Mukasey issued an Order directing Foy to show cause why the petition should not be dismissed as untimely.*fn3 Foy timely filed an affirmation in response to Judge Mukasey's Order recounting Page 6 his discovery of the arrest report in 2001, showing that Gonzalez had been charged with a crime but that the charges against him were dismissed.


  The court shall make a de novo determination of those portions of the Report to which objection is made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Thereafter, the court may accept, reject, or modify, in whole or in part, the findings and recommendations of a magistrate judge. See DeLuca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994), aff'd, 77 F.3d 578 (2d Cir. 1996).

  Habeas corpus petitions are subject to the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132. The Report correctly analyzes the applicable time limits under AEDPA for the filing of Foy's petition. His conviction became final for purposes of AEDPA on April 24, 1997, one year after the enactment of AEDPA.*fn4 Taking into account AEDPA's tolling provisions and Foy's collateral attacks on his conviction through his filings in state court, Foy's deadline for filing a habeas petition was extended to September 8, 1997. Foy Page 7 filed his petition on July 11, 2003. Foy's petition is therefore time-barred unless he can show that one of the statutory provisions extending the limitations period applies.

  Under AEDPA, the one-year limitations period for "newly discovered" evidence runs from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2244(d)(1)(D). Foy claims that his petition is timely because it was brought within one year of the date he discovered the factual predicate for his petition: that Gonzalez was charged with and subsequently granted immunity for the stabbing. According to Foy, it was not until he saw Gonzalez's arrest report at some point after July 2001, that he could substantiate his claim that Gonzalez was charged with a crime but never prosecuted. As the Report correctly concludes, however, the facts that Foy now claims are "newly discovered" were known to him throughout his trial and on direct appeal.

  Foy witnessed Gonzalez stab Travis Foy. The trial record repeatedly discloses that Gonzalez had been arrested for that attack, charged, and then given immunity for his grand jury testimony against Foy and Travis Foy. During the trial, defense counsel even argued about the permissible scope of his cross-examination on the question of Gonzalez's immunity. Both defense counsel and the prosecution referred in summation to Gonzalez's immunity.

  In addition, Foy raised Gonzalez's immunity and the jury's Page 8 inability fully to consider it in his brief on direct appeal to the Appellate Division. He also made similar arguments in his 1992 post-trial motion pursuant to N.Y.C.P.L. § 330.30.

  The Report persuasively analyzes Foy's recent acquisition of documentary evidence regarding Gonzalez's arrest and charge for stabbing Travis Foy, and correctly concludes that the arrest report does not qualify as "newly discovered" evidence under AEDPA. See Youngblood v. Greiner, 97 Civ. 3289 (DLC), 1998 WL 720681, at *4 (S.D.N.Y. Oct. 13, 1998) (AEDPA's exception for newly-discovered evidence runs "from the date a petitioner is on notice of the facts which would support a claim, not the date on which the petitioner has in his possession evidence to support his claim").

  In his objections to the Report, Foy argues that the Report mischaracterizes his claim. Foy asserts that Gonzalez did not receive transactional immunity for the stabbing of Travis Foy since that was a "separate incident" not within the scope of Gonzalez's testimony before the grand jury. According to Foy, the fact that Gonzalez was never prosecuted for the stabbing must have been a result of a "deal or promise" with the prosecution, a fact denied by both the prosecution and the witness. Foy asserts that, with the discovery of Gonzalez's arrest report, he "was finally able to obtain proof that the witness was in fact charged with a crime, that negotiations had taken place, and that indeed the witness was an interested party to the outcome of his trial."

  As the Report details, there were numerous references at Page 9 trial to the arrest, charge, and immunization of Gonzalez in connection with the stabbing. Travis Foy's attorney argued to the jury that Gonzalez should have been charged with attempted murder, but was given immunity and would get off scot free. Foy's own attorney argued that the prosecutor chose to give Gonzalez immunity by calling him as a grand jury witness. The jury charge included instructions regarding the fact that Gonzalez had been arrested, charged with the stabbing, and then immunized.


  The petition for a writ of habeas corpus is denied. A certificate of appealability is inappropriate because reasonable jurists would not find it debatable that the petition is time-barred. Slack v. McDaniel, 529 U.S. 473, 484 (2000). In addition, I find, pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962).


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