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
OPINION AND ORDER
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.
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
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
his discovery of the arrest report in 2001, showing that Gonzalez
had been charged with a crime but that the charges against him were
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
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
In addition, Foy raised Gonzalez's immunity and the jury's
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
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
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,