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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 ...

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