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
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.
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
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
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.
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 ...