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.
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.
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.
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 ...