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United States District Court, E.D. New York

April 3, 2004.

DAMECHA HARRIS, Petitioner, -against- DANIEL SENKOWSKI, Superintendent of Clinton Correctional Facility, Respondent

The opinion of the court was delivered by: FREDERIC BLOCK, District Judge


On January 8, 2004, the Court conditionally granted Damecha Harris' ("Harris") petition for a writ of habeas corpus, ordering Harris released from custody "unless retried within sixty days." Harris v. Senkowski, 298 F. Supp.2d 320, 341 (E.D.N.Y. 2004). After sixty days had elapsed without retrial, Harris' counsel moved the Court to: (1) issue an unconditional writ, ordering Harris' immediate release, and (2) issue an order barring the state from retrying Harris. For the reasons set forth below, both motions are denied.

 I. Unconditional Writ

  The parties recently discovered that Harris is not entitled to immediate release because he is currently serving time on another conviction which occurred subsequent to the conviction underlying the instant petition; thus, the Court will not order Harris released from custody.

 II. Barring Retrial

  Even when an unconditional writ is granted and a court orders the immediate release of a successful habeas petitioner, the state can re-arrest and retry the petitioner. See Latzer v. Abrams, 615 F. Supp. 1226, 1228 (E.D.N.Y. 1985) ("When a court grants a writ of habeas corpus and orders a petitioner released from custody, the petitioner is ordinarily `still subject to custody under the indictment and may be re-tried on this or another indictment.'") (quoting Inrin v. Down, 366 U.S. 717, 728 (1961)).

  However, in appropriate circumstances, a court may bar a state from retrying a successful habeas petitioner. In Morales v. Portundo, 165 F. Supp.2d 601, 609 (S.D.N.Y. 2001), Judge Chin held that "federal courts have barred retrial of successful habeas petitioners in . . . three situations: (1) where the act of retrial itself would violate petitioner's constitutional rights, for example, by subjecting him to double jeopardy; (2) where a conditional writ has issued and the petitioner has not been retried within the time period specified by the court; and (3) where the petitioners had served extended and potentially unjustifiable periods of incarceration before the writ was granted." See also Foster v. A.L. Lockhart, 9 F.3d 722, 727 (8th Cir. 1993) ("A district court has authority to preclude a state from retrying a successful habeas petitioner when the court deems that remedy appropriate. Nevertheless, this is an extraordinary remedy that is suitable only in certain situations, such as when a retrial itself would violate the petitioner's constitutional rights).

  In Morales, the court precluded retrial of petitioners because: (1) based upon the evidence, "no reasonable jury could convict [them] of murder"; (2) petitioners had been "severely prejudiced by the passage of time [because] they had served extended and potentially unjustified periods of incarceration and their ability to defend against the charges in any new trial had been hampered," and (4) because "certain aspects of the District Attorney's Office's handling of [the] matter [were] troubling." Morales, 165 F. Supp.2d at 609 (internal quotations omitted). In contrast, in Latzer, the court declined to enter an order barring retrial because there were "no circumstances that could justify" such an order. Latzer, 615 F. Supp. at 1230: First, retrying the petitioner would not "infringe upon his constitutional rights." Id. Moreover, "[t]he illegality in petitioner's first trial, the improper restrictions on cross-examination[,] was peculiar to that trial and [could] be fully remedied on re-trial." Id. Finally, "petitioner [had not] articulated any prejudice flowing from the state's failure to re-try him within sixty days." Id.

  Harris does not contend that retrial will infringe upon his constitutional rights; rather, he claims that he has already served an extended and unjustifiable period of incarceration, and that he can no longer receive a fair trial "given the passage of more than 12 years and the obvious fact that the sole eyewitness — if located — no doubt will be prepared and focused on the issue of the inconsistent description in a way that may now preclude any possibility for effective cross examination." Letter dated March 11, 2004 at 3.

  Contrary to Harris' contentions, the extraordinary remedy of precluding a retrial is simply not warranted in this case. First, retrial will not infringe Harris' constitutional rights. Second, while the Court is sympathetic to Harris' lengthy incarceration, that alone does not warrant relief. Third, as in Latzer, the error in Harris' first trial — namely his counsel's failure to cross-examine the victim about her prior inconsistent description of the assailant — can be "fully remedied on re-trial." Latzer, 615 F. Supp. at 1230.

  Moreover, Harris will not be prejudiced by the passage of time. The Court would have held otherwise if Officer Clifton — the officer who signed the complaint report containing the victim's inconsistent description — was not available to testify, because his testimony is key to Harris' ability to impeach the victim's identification.*fn1 On retrial, Harris will be able to effectively confront the victim with the prior inconsistent description contained in the complaint report. If she denies giving the description, counsel can place the report in evidence; however, more importantly, counsel can call Officer Clifton to testify. Officer Clifton can provide live testimony — which is clearly more compelling than the complaint report alone — about not only the inconsistent description the victim initially gave, but also explain the circumstances in which it was given, when it was given, and any other relevant information she might have provided at the time.

  If, on the other hand, the victim admits giving the inconsistent description but attempts to walk away from it by explaining that it was dark or that she did not have a good view of the assailant, the certainty of her subsequent description will likely be undermined in the eyes of the jury. Ultimately, the passage of time only helps Harris, and weakens the government's case. Thus, Harris' motion is denied. SO ORDERED.

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