United States District Court, S.D. New York
June 30, 2004.
EDWARD LEAKE, Petitioner,
DANIEL A. SENKOWSKI, Superintendent, Respondent.
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
Edward Leake brings this pro se petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in
Westchester County Supreme Court, Leake was convicted of Murder
in the Second Degree, Attempted Murder in the Second Degree,
Assault in the Second Degree, and two counts of Criminal
Possession of a Weapon in the Third Degree. He was sentenced as a
second violent felony offender to a total of 31 years to life in
state prison. He is currently incarcerated pursuant to that
judgment at Clinton Correctional Facility in Dannemora, New York.
For the following reasons, the petition should be denied.
I. FACTUAL BACKGROUND
This case arose out of a fight that broke out shortly before
midnight on November 19, 1991, at the intersection of Fifth
Avenue and Third Street in Mount Vernon, New York. The fight
resulted in the stabbing death of William Fitzgerald.
A. Pretrial Hearing
A pretrial hearing was held to determine the validity of
Leake's arrest in his home, the admissibility of identification evidence and of Leake's
statements to the police, and the scope of cross-examination if
Leake chose to testify at trial.
1. The People's Case
Detective James Garcia testified that during the early morning
hours of November 20, 1991, he was called at home to investigate
Fitzgerald's death. (Garcia: Hr'g Tr. I. 17-18; Hr'g Tr. II.
22-24).*fn1 From interviewing witnesses, he learned that
Leake might have been involved in the incident. (Garcia: Hr'g Tr.
I. 20; Hr'g Tr. II. 24-25). Around 3:30 or 4:00 a.m., Detective
Garcia and four other officers went to Leake's apartment at 160
Warburton Avenue, Apartment 18E in Yonkers, New York. (Garcia:
Hr'g Tr. I. 19-20, 23; Hr'g Tr. II. 33-34). Detective Garcia
knocked on the door and Leake opened it. (Garcia: Hr'g Tr. I. 20;
Hr'g Tr. II. 35-36). Detective Garcia identified himself and
asked if they could speak to him about an incident in Mount
Vernon earlier that evening. Leake said "fine" and let the
officers into his apartment. (Garcia: Hr'g Tr. I. 21; Hr'g Tr.
II. 36-38, 70, 121-22). Detective Garcia noticed another male
lying on a mattress in the apartment so he asked Leake if he
would come to the Mount Vernon Police Headquarters. Leake agreed.
(Garcia: Hr'g Tr. I. 21-22; Hr'g Tr. II. 38-41, 44). Leake got
dressed and accompanied the officers to the police station.
(Garcia: Hr'g Tr. I. 22-24; Hr'g Tr. II. 42-43, 122-25).
Upon arriving at police headquarters, Leake was taken to a
conference room where Detective Garcia advised him of his
Miranda rights. (Garcia: Hr'g Tr. I. 25-26; Hr'g Tr. II. 72-73,
126-27). After the Miranda card was read to Leake, he signed
it, acknowledging that it had been read to him. (Garcia: Hr'g Tr. I. 27-30, 45-46; Hr'g Tr. II.
74, 80-81). He signed the card a second time, acknowledging that
he understood his rights and that he wished to speak with the
detectives. (Garcia: Hr'g Tr. I. 30-31; Hr'g Tr. II. 74, 81-83).
Detective Garcia, Detective Daniel Fischer, and Lieutenant Robert
Astornio then began questioning Leake. (Garcia: Hr'g Tr. I. 32;
Hr'g Tr. II. 84). Detective Garcia testified that he brought in
coffee and doughnuts during this interview. (Garcia: Hr'g Tr. II.
During the questioning, Leake stated that he had been in Mount
Vernon earlier that night to visit a friend named "Eddie."
(Garcia: Hr'g Tr. I. 32). He initially denied having any problems
with anybody. (Garcia: Hr'g Tr. I. 32-33). After about an hour of
questioning, Leake conceded that when he was with his friend
Eddie Brown on Third Street, he had gotten into a fight. (Garcia:
Hr'g Tr. I. 33-34; Hr'g Tr. II. 85-86). Leake first denied that
there had been any weapon involved but later admitted that one of
the individuals had a knife that Leake had taken. (Garcia: Hr'g
Tr. I. 34).
Leake then gave the following account of the events of the
previous evening. He was walking on Third Street with Brown. When
they passed a pool hall, Brown encountered a person with whom he
had earlier had an altercation and the two started fighting
again. (Garcia: Hr'g Tr. I. 34-35). Leake tried to break up the
fight and others became involved. (Garcia: Hr'g Tr. I. 35). At
one point, Leake saw an individual come at him with a knife,
which he blocked with his hand, knocking the knife to the ground.
(Garcia: Hr'g Tr. I. 35). Leake picked up the knife, which was
four inches long and silver, and started swinging it at people
who came close to him. (Garcia: Hr'g Tr. I. 35-36). He stated
that he thought he might have stabbed two or three people.
(Garcia: Hr'g Tr. I. 36). The only person he saw on the ground,
however, was Brown, whom he helped into a car. (Garcia: Hr'g Tr. I. 36). An unidentified person
drove Leake home. Leake did not know where Brown was dropped off.
(Garcia: Hr'g Tr. I. 36).
Detective Garcia then informed Leake that someone had been
killed and that another individual had been stabbed and was in
the hospital. (Garcia: Hr'g Tr. I. 37; Hr'g Tr. II. 91). He asked
Leake if he would like to give a written statement as to what
occurred and Leake said that he would. (Garcia: Hr'g Tr. I.
37-38). Before Detective Garcia began typing Leake's statement
onto a form, he advised Leake of his Miranda rights again and
Leake signed the waiver form again. (Garcia: Hr'g Tr. I. 41-42,
46). At the conclusion of Detective Garcia's recorded
questioning, at about 6:45 a.m., Leake read the statement and
signed the bottom of it, acknowledging that it was true. (Garcia:
Hr'g Tr. I. 44-46).
Leake then agreed to give a statement on video. (Garcia: Hr'g
Tr. I. 47-48). After Assistant District Attorney Doug Fitzmorris
and Detective Garcia questioned Leake, it was discovered that the
microphone for the videotaping system had not been turned on and
thus no audio had been recorded. (Garcia: Hr'g Tr. I. 48-49; Hr'g
Tr. II. 5-6, 11-12). As a result, Detective Garcia asked Leake if
he would mind giving another statement on video, to which Leake
agreed. (Garcia: Hr'g Tr. I. 49). ADA Fitzmorris did not take
part in the second interview. (Garcia: Hr'g Tr. I. 50). The
second videotaped interview began at 9:55 a.m. (Garcia: Hr'g Tr.
I. 53-54). Both videotapes were played at the hearing. (Garcia:
Hr'g Tr. I. 53; Hr'g Tr. II. 3-4).
On cross-examination, defense counsel brought out that
Detective Garcia had gotten Leake's address from Leake's parents,
whose home a group of detectives visited at approximately 3:00
a.m. on November 20th. (Garcia: Hr'g Tr. II. 26-31, 68-69). When
asked if he had told Mr. and Mrs. Leake that their son had been involved
in a car accident, Detective Garcia stated that he did not recall
saying anything about an accident. (Garcia: Hr'g Tr. II. 32).
Detective Garcia admitted that he made no attempt to obtain an
arrest warrant before going to Leake's apartment. (Garcia: Hr'g
Tr. II. 70). He described Leake's appearance when he began
speaking to him at his apartment as "calm" and "cooperative."
(Garcia: Hr'g Tr. II. 50-51). He stated that he believed Leake
understood his Miranda rights "absolutely." (Garcia: Hr'g Tr.
II. 82-83). When Detective Garcia informed Leake that Fitzgerald
was dead, Leake stated "that he didn't mean to hurt or kill
anybody." (Garcia: Hr'g Tr. II. 91).
Detective Garcia later executed a search warrant at 160
Warburton Avenue, recovering a pair of Bally's shoes, a pair of
eyeglasses, a bloody blue sweatshirt, two green army jackets, and
personal papers. (Garcia: Hr'g Tr. II. 118-19).
Detective Dewitt Mack testified that he was called to come back
to work during the night of November 19-20. (Mack: Hr'g Tr. II.
143-44). He said that when he went to 160 Warburton Avenue with
the other officers, Leake let them into the apartment after they
had knocked. (Mack: Hr'g Tr. II. 144-47). Detective Garcia asked
Leake if he would come to police headquarters and he said,
"[Y]es, . . . I would like to put my clothes on." (Mack: Hr'g Tr.
II. 146). The detectives went with Leake into the bedroom where
he got dressed and then they all left. (Mack: Hr'g Tr. II. 146,
Later that day, Detective Mack prepared a photo array
consisting of pictures of six black males, including Leake.
(Mack: Hr'g Tr. II. 149-52, 168-70). He showed this array
separately to Leonard Swain, Travis Swain ("Swain"), and Ronald
Ross, all of whom had witnessed or been involved in the incident.
(Mack: Hr'g Tr. II. 153-54). Leonard Swain was unable to make an identification. (Mack: Hr'g Tr. II. 154, 177-80). Swain
identified photograph number 1. (Mack: Hr'g Tr. II. 154-58,
180-82). Ross also identified photograph number 1. (Mack: Hr'g
Tr. II. 159-63, 182-83). The photograph Swain and Ross identified
was that of Leake. (Mack: Hr'g Tr. II. 180, 182). Detective Mack
had received a description of the assailant from each of the
three men before preparing the photo array but he had not written
these descriptions down. (Mack: Hr'g Tr. II. 170-75).
Detective Fischer testified that at about 5:45 a.m. on November
20th, he went to the Mount Vernon Hospital to see if Billy
Edwards, who had been injured in the incident, could make an
identification. (Fischer: Hr'g Tr. II. 231-32). Detective Fischer
showed Edwards the photo array and he identified photograph
number 1. (Fischer: Hr'g Tr. II. 232-36, 240-41).
ADA Fitzmorris testified regarding his presentation of the case
to the Grand Jury. (Fitzmorris: Hr'g Tr. II. 196). During the
course of that presentation, ADA Fitzmorris presented the photo
array to Edwards and Ross. (Fitzmorris: Hr'g Tr. II. 196-202).
The prosecution introduced into evidence portions of their Grand
Jury testimony concerning the identification each made of Leake.
(Fitzmorris: Hr'g Tr. II. 200-03).
2. The Defense Case
Priscilla Leake, Leake's mother, testified that during the
early morning hours of November 20, 1991, several detectives
visited her home at 126 South High Street in Mount Vernon. (P.
Leake: Hr'g Tr. II. 214-15). Detective Garcia told her that they
were looking for Leake because he had been involved in a car
accident. (P. Leake: Hr'g Tr. II. 215-16). Because she wanted to
know how her son was doing, she went upstairs and called him
while the detectives remained downstairs talking to her husband
(P. Leake: Hr'g Tr. II. 216, 224-25). She told Leake that the detectives were looking for him and asked if
he had been in a car accident. (P. Leake: Hr'g Tr. II. 216, 222).
He told her that he had not been in an accident and that he would
be at home. (P. Leake: Hr'g Tr. II. 217, 222).
Leake also testified on his own behalf. He testified that he
had lived at 160 Warburton Avenue in Yonkers since October 1991.
(Leake: Hr'g Tr. II. 248). Prior to that, he had lived with his
parents at 126 South High Street in Mount Vernon. (Leake: Hr'g
Tr. II. 249). When Leake's mother called him early in the morning
of November 20, 1991, she told him that some police officers had
woken her up looking for him because he had been in a car
accident. (Leake: Hr'g Tr. II. 250-51). The officers arrived at
Leake's apartment approximately 15 minutes after that call.
(Leake: Hr'g Tr. II. 251).
Leake's version of his encounter with the detectives was as
follows: the police knocked on his door and said, "[P]olice, open
up." (Leake: Hr'g Tr. II. 252). He said that he would but that he
wanted to put pants on before he opened the door. (Leake: Hr'g
Tr. II. 252). The police knocked harder and louder and said,
"[O]pen up now." (Leake: Hr'g Tr. II. 252). He went straight to
the door wearing just his underwear. (Leake: Hr'g Tr. II. 252).
As Leake turned the knob to open the door, the police pushed the
door open and he jumped back. (Leake: Hr'g Tr. II. 252). They
told him to stay facing the wall and three or four officers ran
into his apartment. (Leake: Hr'g Tr. II. 252). Detective Garcia
asked him if he had been in Mount Vernon that night and Leake
responded that he had but that he had not been involved in a car
accident. (Leake: Hr'g Tr. II. 253). Detective Garcia told Leake
they wanted him to come to the police station to talk. Leake
responded that this was his home and asked, "[W]hy can't you ask
me questions here?" (Leake: Hr'g Tr. II. 253). Leake heard one of
the detectives respond, "you can make it harder on yourself or you can make it easy on yourself." (Leake:
Hr'g Tr. II. 253-54). Because he needed to get dressed, Leake
went towards the bedroom to get his clothes. (Leake: Hr'g Tr. II.
254-55). The officers followed him to the room and then stopped
him before he entered the room, insisting on going in first.
(Leake: Hr'g Tr. II. 254-55). They asked Leake what he wanted to
wear and got clothing for him out of the closet. (Leake: Hr'g Tr.
II. 255). After getting dressed, Leake was taken out of the
apartment by two officers holding his arms. (Leake: Hr'g Tr. II.
Leake was taken to the Mount Vernon Police Headquarters, where
he was put into a room and the officers "kept asking [him]
questions." (Leake: Hr'g Tr. II. 257). When they asked him what
happened in Mount Vernon that night, he "told them a few times
that if [they] didn't know, [they] wouldn't have [him] here."
(Leake: Hr'g Tr. II. 257). Leake told the officers that maybe he
would talk in the morning if they arrested him and put him in a
cell to sleep. (Leake: Hr'g Tr. II. 257-58). Leake testified that
he dozed off during the questioning because he had taken a
sleeping medication. (Leake: Hr'g Tr. II. 257). He claimed that a
couple of times he fell asleep at the table and one of the
officers banged on the table to wake him up. (Leake: Hr'g Tr. II.
258-59). He testified that he was "confused [and] scared"
throughout the time he gave the various statements to the police.
(Leake: Hr'g Tr. II. 261). During questioning by ADA Fitzmorris,
Leake first learned that one of the men involved in the fight had
died. (Leake: Hr'g Tr. II. 261-62).
On cross-examination, Leake testified that in November 1991 he
was living with Tony Jones. (Leake: Hr'g Tr. II. 270). Although
Leake had gotten married in June 1991, he had never "really"
lived with his wife. (Leake: Hr'g Tr. II. 271-72). Once the
officers entered his apartment, Leake "figured" that he was being restrained when he
was told to stay facing the wall and when he was prevented from
entering his bedroom or closet without two officers going in
before him. (Leake: Hr'g Tr. II. 275). He further believed he was
being restrained when his arms were held as he was escorted to
the car and felt he was "mistreated when they walked into my
house at that time of night." (Leake: Hr'g Tr. II. 275).
With respect to the questioning that took place at the station,
Leake complained that the officers would not let him get some
sleep before talking, that they would not give him any food, and
that they would not give him a lawyer. (Leake: Hr'g Tr. II. 285).
Leake acknowledged that on the videotapes Detective Garcia
appeared courteous towards him. (Leake: Hr'g Tr. II. 266). Also,
he acknowledged that in the videotapes he never appeared to be
dozing off or otherwise indicated that he wanted to get some
sleep. (Leake: Hr'g Tr. II. 267-68, 285). However, Leake
maintained that Detective Garcia did not give him anything to eat
until he said that he was not going to do the second video until
he got something to eat. (Leake: Hr'g Tr. II. 266). On
cross-examination, Leake asserted for the first time "I asked to
go home and to speak to a lawyer . . . and I didn't get that."
(Leake: Hr'g Tr. II. 267). According to Leake, during the first
videotape (the one without recorded sound) he asked Detective
Garcia, "[W]here is the lawyer?" (Leake: Hr'g Tr. II. 285-86).
At the end of the second taped statement, Detective Garcia
asked Leake whether he had anything to say or add. (Leake: Hr'g
Tr. II. 277). Leake responded:
Only the fact that I was really in the wrong place at
the wrong time because usually [at] 11 o'clock I
would be in the bed because I work, you know, long
hours every day of the week and missing one hour is
enough. I wish I was home tonight. You know, my
intention was not to hurt no one.
(Leake: Hr'g Tr. II. 277-78). He never said anything about being
mistreated. (Leake: Hr'g Tr. II. 276-79). In fact, when Leake was
asked, "Were you treated well?," he answered, "Yes." (Leake: Hr'g
Tr. II. 280). Leake acknowledged that he was read his Miranda
rights but maintained that Detective Garcia asked him questions
prior to reading him the rights card. (Leake: Hr'g Tr. II.
280-84, 286-88). Leake further testified that at his apartment
and at the precinct, he was not willing to cooperate with the
police. (Leake: Hr'g Tr. II. 297-98).
The prosecution also cross-examined Leake about his prior
convictions and prior contacts with the police. In 1980, the
police called Leake and asked him to come to the station
concerning a burglary. (Leake: Hr'g Tr. II. 268-69). Leake
immediately went to the station as requested and eventually pled
guilty to Burglary in the First Degree and two counts of Rape in
the First Degree. (Leake: Hr'g Tr. II. 269-70). His plea involved
three similar scenarios in which he was charged with breaking
into apartments and sexually assaulting female tenants. (Leake:
Hr'g Tr. II. 305-13). Leake admitted that he had broken into an
apartment in the building where he was living at the time and had
sexually abused the woman living there. (Leake: Hr'g Tr. II.
305-07, 311-12). He denied committing the two other burglaries
and rapes and denied ever testifying in the Grand Jury in
connection with any crime. (Leake: Hr'g Tr. II. 307-18).
3. The People's Rebuttal Case
Because Leake's testimony that he asked for a lawyer during the
first videotaped statement was the first time such an issue had
been raised, the court allowed the People to present rebuttal on
this point. (Hr'g Tr. II. 319-24). ADA Fitzmorris testified that
he first met with Leake at around 8:00 a.m. on November 20, 1991.
(Fitzmorris: Hr'g Tr. II. 330). He was present for the first
videotaped statement and subsequently learned that the audio
portion of the statement had not been recorded. (Fitzmorris: Hr'g Tr. II. 330). During
this interview, Leake "most definitely [did] not" ask or
otherwise indicate that he wished to speak to an attorney.
(Fitzmorris: Hr'g Tr. II. 331). On cross-examination, ADA
Fitzmorris stated that at some point during the statement he may
have left the room to get Leake a glass of water. (Fitzmorris:
Hr'g Tr. II. 334-35).
4. Hearing Decision
The trial judge issued an oral decision following the close of
testimony on January 4, 1993. The judge concluded that Leake "was
not in custody at the apartment on Warburton Avenue, that he
willingly accompanied police officers to the Mount Vernon police
headquarters for questioning and that before any questioning took
place he was given his complete warning[s] under Miranda and
made a knowing and voluntary waiver of his rights to remain
silent and to be represented by counsel during the questioning."
(Hr'g Tr. II. 382). The judge determined that the police did not
use coercive behavior or deprive Leake of sleep so as to overbear
his free will. (Hr'g Tr. II. 382). The judge found Leake's
testimony that he had asked for an attorney to be not credible.
(Hr'g Tr. II. 382-83). Accordingly, the motion to suppress
Leake's written statement, verbal statements, and two videotaped
statements was denied. (Hr'g Tr. II. 383).
With respect to the identification evidence, the trial judge
found that there was "nothing improper in the pretrial
identification procedures." (Hr'g Tr. II. 383-87). Therefore, the
motion to suppress the identification testimony of Swain, Ross,
and Edwards was also denied. (Hr'g Tr. II. 385, 387).
The judge also heard from the parties and made rulings
regarding the prosecution's ability to cross-examine Leake
regarding his prior convictions should he testify at trial. (Hr'g
Tr. II. 388-411). The judge refused to allow cross-examination regarding
a 1980 incident in which Leake entered a woman's apartment and
sexually abused and threatened her on the ground that the
incident was too remote in time. (Hr'g Tr. II. 405-06). But the
judge ruled that the People would be permitted to cross-examine
Leake regarding two incidents on the same day in 1981 in which he
broke into the apartments of two women and raped them. Leake pled
guilty to two counts of Rape in the First Degree in connection
with these crimes and served nine years in prison. (Hr'g Tr. II.
B. The Trial
The following evidence was presented at trial:
1. The People's Case
During the evening of November 19, 1991, Edwards and Swain were
standing on the sidewalk in front of a pool hall Nice Guys Game
Room near Third Street and Fifth Avenue in Mount Vernon, New
York. (Edwards: Tr. 188-89, 192; Swain: Tr. 448-49). Robert
and Brown pulled up in front of them in a tan
car. (Edwards: Tr. 189-90; Swain: Tr. 450). Dubose got out of the
car and walked away. (Edwards: Tr. 189-90). Swain approached
Brown, who had remained sitting in the car, and started punching
Brown in the face. (Edwards: Tr. 189-91; Swain: Tr. 450-51).
Swain explained that he punched Brown because he had heard that
Brown had thrown a drink on Swain's girlfriend at a party three
nights prior. (Swain: Tr. 447-48, 451). Dubose got back in the
car and Dubose and Brown drove away. (Edwards: Tr. 191; Swain:
Tr. 451). Ross, a friend of Edwards and Swain, also witnessed
this incident and testified to seeing Swain punch Brown in the
face. (Ross: Tr. 345-49). Later that evening, at around 10:00 or 10:30 p.m., Edwards was
again standing on the sidewalk at Third Street and Fifth Avenue.
(Edwards: Tr. 194-95). Ross was again present. (Ross: Tr.
350-54). Edwards saw Dubose drive up the street in the same tan
car, make a U-turn, stop, and get out of the car. (Edwards: Tr.
194-97). Then Edwards noticed a blue car with four occupants come
up the street and pull into a gas station. (Edwards: Tr. 196-97).
Brown and a friend got out and approached Edwards. (Edwards: Tr.
197-99). Edwards did not know Brown's friend, who was wearing a
hooded sweatshirt and a green army-type coat. (Edwards: Tr. 198;
Ross: Tr. 354). At trial, Edwards, Ross, and Swain all indicated
that Leake was the friend with Brown. (Edwards: Tr. 219-20; Ross:
Tr. 353-54; Swain: Tr. 454-55). As Brown approached, he was
putting on gloves and saying repeatedly, "I'm going to beat the
crap out of you." (Edwards: Tr. 216). Edwards replied, "[W]ho is
you talking to?," to which Brown responded, "I'm talking to you."
(Edwards: Tr. 216-17). When Edwards stepped down off the curb
ready to fight, Brown stated, "[G]o in and get your man, I want
to fight your man first." (Edwards: Tr. 217). So Edwards went
into the pool hall and got Swain. (Edwards: Tr. 217; Swain: Tr.
452-53). At some point while Edwards was outside, he noticed
Fitzgerald walking down the street. (Edwards: Tr. 217). Swain did
not notice Fitzgerald, with whom he had gone to school, when he
came outside. (Swain: Tr. 456-57).
Brown and Swain began "shadow boxing," swinging punches at one
another but not causing any harm. (Edwards: Tr. 218; Ross: Tr.
355; Swain: Tr. 456). Edwards became concerned that Brown was
trying to tire Swain out so he said, "I'm not going to let you
fight him, you're trying to tire him out. If you want to fight
someone, fight me." (Edwards: Tr. 220; Ross: Tr. 355, 368-69).
According to Edwards, Leake then got involved by proposing that
the four men go around the corner. (Edwards: Tr. 221). Leake and Brown
were insisting that they wanted to fight while Edwards was
insisting that they fight him rather than Swain. (Edwards: Tr.
221-22). Edwards then punched Brown in the mouth and Brown fell
on Edwards. (Edwards: Tr. 222-23; Ross: Tr. 369; Swain: Tr. 457).
Edwards "dragged" Brown to the corner and Edwards and Brown
continued to fight (Edwards: Tr. 222-24; Ross: Tr. 369-70), with
Edwards knocking Brown out at some point (Swain: Tr. 506).
According to Edwards, while he was fighting Brown he noticed
Leake moving behind him and he also noticed Fitzgerald hitting
somebody. (Edwards: Tr. 224-25). Then Fitzgerald hit Brown.
(Edwards: Tr. 225). Fitzgerald also hit Leake in the head several
times and Edwards said to Fitzgerald, "Hit him again and you
should be able to put him out." (Edwards: Tr. 225, 320-22). Then
Edwards saw Leake hit Fitzgerald in the ribs from behind.
(Edwards: Tr. 225-27). Fitzgerald grabbed his side. (Edwards: Tr.
226-27). Then Leake ran behind Edwards and hit him in the back
with what Edwards thought was a pipe as Edwards was still beating
up Brown. (Edwards: Tr. 227-29). Edwards went after Leake, who
started running down Fifth Avenue, but then Edwards looked back
and noticed Fitzgerald on the ground so he went back to help him.
(Edwards: Tr. 229-30, 232). As Edwards approached, Brown started
swinging at him again, so Edwards beat up Brown some more.
(Edwards: Tr. 230). Edwards noticed Leake sneaking up on him
again, so Edwards said he was "going to beat the crap out of"
Leake as well at which point Leake and Brown ran towards their
car and left. (Edwards: Tr. 230, 233). Edwards then discovered
that he had been stabbed in the back and went to the emergency
room. (Edwards: Tr. 234-35). According to Swain, after Edwards and Brown went to the corner
to fight, Leake went towards Edwards and Swain pushed Leake away.
(Swain: Tr. 458). Leake started backing up, pulled out a knife
from behind his back, and tried to cut Swain. (Swain: Tr. 458,
464). Swain described the knife as a "hunting knife." (Swain: Tr.
464). Swain jumped out of the way and the next thing he knew,
Leake was coming at him again with the knife. (Swain: Tr.
458-59). This second time, Swain again moved out of the way and
Leake stabbed Edwards in the back as Edwards was beating up
Brown. (Swain: Tr. 459). Then Leake and Brown ran towards the
blue car parked at the gas station and drove away. (Swain: Tr.
460). Swain took Edwards to the hospital. (Swain: Tr. 460-61).
Swain did not see Leake stab Fitzgerald but saw Fitzgerald later
at the hospital. (Swain: 461-62).
Ross also saw Leake pull out a knife from behind his back.
(Ross: Tr. 356, 371). Ross described the knife as a "big hunting
knife," like the kind used in the movie "Rambo." (Ross: Tr. 373).
He saw Leake stab Fitzgerald in the side. (Ross: Tr. 356,
374-75). Ross took the keys to the tan car from Dubose and drove
Fitzgerald to the hospital. (Ross: Tr. 357-58, 376).
Dr. Paul Koltovich treated both Edwards and Fitzgerald in the
emergency room of Mount Vernon Hospital. (Koltovich: Tr. 73-74).
He testified that Fitzgerald came in at about 11:00 p.m.
complaining of shortness of breath and discomfort in his chest.
(Koltovich: Tr. 74-75, 81-82). Doctors ascertained that
Fitzgerald had multiple stab injuries to his back and probably
had a collapsed lung. (Koltovich: Tr. 74-75, 81-82). Fitzgerald's
condition deteriorated as his blood pressure dropped and he
became unresponsive. (Koltovich: Tr. 83). Despite the efforts of
doctors and surgeons, Fitzgerald died at approximately 12:40 a.m.
(Koltovich: Tr. 81-85). The autopsy confirmed that Fitzgerald had
two stab wounds one in the right side of his back and one in the right side of his chest slightly below his armpit.
(Roh: Tr. 631-32). The Medical Examiner concluded that in order
to penetrate Fitzgerald's jacket and shirt as well as his body,
"considerable force" had to have been used. (Roh: Tr. 644-45). He
also concluded that if the knife was held in the right hand of
the attacker, the attacker must have inflicted the wound when
Fitzgerald's back was turned to the attacker. (Roh: Tr. 645-46).
Dr. Koltovich also treated Edwards, who arrived at the
emergency room shortly after 11:00 p.m. (Koltovich: Tr. 88-89,
95). Edwards was admitted to the hospital for two days for
treatment of two stab wounds to his back and was released with
bandages covering his wounds. (Koltovich: Tr. 95-101).
Meanwhile, the Mount Vernon Police Department began
investigating the crime. Officer William Podszus responded to
South Fifth Avenue and West Third Street shortly after midnight.
(Podszus: Tr. 120). At that time, the area was quiet. (Podszus:
Tr. 121-22). He discovered a bloodstained, yellow sweatshirt in
the gutter on the southwest corner and a black baseball hat on
the southeast corner. (Podszus: Tr. 122-23). He also saw
bloodstains on the pavement and on the sidewalk. (Podszus: Tr.
122, 129). He marked and roped off the crime scene. (Podszus: Tr.
123). Officer Podszus did not find any weapons after a thorough
search of the area. (Podszus: Tr. 142).
Detective Garcia testified that he was called back to work at
approximately 1:00 a.m. on November 20, 1991. (Garcia: Tr. 524).
At about 3:15 or 3:30 a.m., he and four other detectives went to
160 Warburton Avenue, Apartment 18E in Yonkers where he had
learned that Leake was residing. (Garcia: Tr. 525). Detective
Garcia knocked and Leake answered the door. (Garcia: Tr. 526). He
identified himself and said that they would like to speak to
Leake and Leake let them into the apartment. (Garcia: Tr. 527). Once in the
apartment, Detective Garcia noticed another person there, so he
told Leake he would like him to come to headquarters to discuss
an incident that occurred in Mount Vernon. (Garcia: Tr. 528).
Leake, who was dressed in shorts and an undershirt, responded,
"I'll put some clothes on." (Garcia: Tr. 527-28). Detective
Garcia and another detective entered a back room with Leake where
Leake picked out a jumpsuit and put it on. (Garcia: Tr. 528-29).
Then they all left the apartment and drove in two cars to police
headquarters. (Garcia: Tr. 529).
Leake was brought to a conference room and Detective Garcia
read him his Miranda rights. (Garcia: Tr. 530-31, 533). Leake
signed and dated the Miranda card. (Garcia: Tr. 531-32, 534).
Detective Garcia then asked Leake if he had been in Mount Vernon
that night and if he had any problems there. (Garcia: Tr. 534).
For about an hour, Leake denied being in Mount Vernon. (Garcia:
Tr. 534-35). Leake was told that many people had witnessed the
incident and that he had been identified by people who knew him.
(Garcia: Tr. 535). Leake then stated that he had been with a
friend, Eddie Brown, and eventually admitted that they had been
in an altercation in Mount Vernon. (Garcia: Tr. 536).
Leake described the altercation as follows. He was walking down
Third Street with Brown. When they passed a pool hall, a person
exited the pool hall, approached Brown, and started to box with
Brown in the street. (Garcia: Tr. 537). Then somebody hit Leake
in the back of the head and "everybody started fighting in the
street." (Garcia: Tr. 537). Someone came at Leake with a knife
and he blocked the knife with his hand, knocking the knife to the
ground. (Garcia: Tr. 537). Leake picked up the knife and started
swinging it back and forth in his right hand (Garcia: Tr.
537-38). Leake stated that he felt he might have stabbed one or
two people. (Garcia: Tr. 538). At some point, Leake saw Brown on the ground,
went over to him, and picked him up, and they both ran and jumped
into a car. (Garcia: Tr. 538). Leake was dropped off at home and
stated that he did not know where Brown was dropped off. (Garcia:
Leake described the knife as silver, with an approximately
four-inch-long blade that locked open. (Garcia: Tr. 538-39).
Leake said that he dropped the knife before getting in the car.
(Garcia: Tr. 539). Leake reported that his left hand had been cut
when he blocked the knife. (Garcia: Tr. 540). He showed Detective
Garcia his hand and Detective Garcia testified that there was a
"very slight scratch mark" on it. (Garcia: Tr. 539-40). Polaroid
photographs taken of Leake's hand on November 20, 1991 were
introduced into evidence. (Garcia: Tr. 558-60). Detective Garcia
did not observe any other injuries on Leake. (Garcia: Tr. 560).
Leake's oral statement was later reduced to writing by
Detective Garcia and signed by Leake. (Garcia: Tr. 540-50). This
statement included additional information regarding Leake's
attempts to break up the fight. (Garcia: Tr. 548). Detective
Garcia then informed Leake that one of the people he stabbed had
died and that he was under arrest for murder. (Garcia: Tr.
Detective Garcia later asked Leake if he would give a statement
on video and Leake agreed. (Garcia: Tr. 551). During the
videotaped statement, Detective Garcia again advised Leake of his
Miranda rights and then proceeded to question him along with
ADA Fitzmorris. (Garcia: Tr. 552-53). Afterwards, Detective
Garcia discovered that the microphone had not been turned on
during the videotaping so no sound had been recorded. (Garcia:
Tr. 552-53). Leake agreed to give another statement on video,
which was played for the jury. (Garcia: Tr. 553-56). On the
second videotape Leake stated that he never intended to hurt
anybody. See Brief for Respondent, undated (reproduced as Ex. 9 to Memorandum of Law and
Respondent's Exhibits, filed October 17, 2003 (Docket #14)
("Resp. Mem.")), at 16-17.*fn3
At the close of the People's case, defense counsel moved for a
trial order of dismissal, arguing that the People had failed to
prove that Leake intended to hurt or kill anyone. (Tr. 652-53).
The trial court found the evidence to be legally sufficient and
denied the motion. (Tr. 655-56).
2. The Defense Case
The defense presented only one witness, Allen Brown, the uncle
of Eddie Brown. (A. Brown: Tr. 668-69). Allen Brown took pictures
of Eddie Brown sometime after the November 20, 1991 incident. (A.
Brown: Tr. 671-75). The photographs had been taken to the police
department on December 2, 1991 and remained in the possession of
law enforcement personnel. (Tr. 681-82). They had not been turned
over to the defense by the prosecutor. (See Tr. 677-78).
3. Verdict, Post-Trial Motions, and Sentencing
The jury found Leake guilty of Murder in the Second Degree,
Attempted Murder in the Second Degree, Assault in the First
Degree, and two counts of Criminal Possession of a Weapon in the
Third Degree. They found him not guilty of Attempted Assault in
the First Degree, Attempted Assault in the Second Degree, and a
third count of Criminal Possession of a Weapon in the Third
Degree. (Tr. 944-46).
At the sentencing hearing, the trial court modified the jury
verdict, reducing Leake's conviction of Assault in the First
Degree to Assault in the Second Degree. (Sentencing: Tr. 7). Then, Leake made a pro se motion for his counsel to be relieved
which was granted. (Sentencing: Tr. 8-22). Defense counsel was
instructed to remain in the courtroom for the remainder of the
sentencing hearing. (Sentencing: Tr. 21-23).
Leake made an oral motion to set aside the verdict on the
following grounds: (1) despite Leake's requests, defense counsel
failed to seek a jury charge on temporary and lawful possession
of a weapon or on attempted unlawful possession (Sentencing: Tr.
8-9, 24); (2) defense counsel refused to bring Leake's extreme
emotional disturbance to the court's attention or request a
charge on extreme emotional disturbance (Sentencing: Tr. 9,
24-28); (3) trial counsel refused to bring inconsistencies in the
testimony of the People's witnesses to the jury's attention
(Sentencing: Tr. 28-32); (4) defense counsel failed to present
defense witnesses and demonstrated that he knew "basically
nothing about this case" (Sentencing: Tr. 32-34); (5) the trial
court denied Leake his right to a fair hearing (Sentencing: Tr.
34-36); (6) the verdict was against the weight of the evidence
(Sentencing: Tr. 36-37); and (7) the first videotape was tampered
with and "everything said was totally exculpatory in nature"
(Sentencing: Tr. 38-40). The court denied Leake's motion, finding
that there was sufficient evidence to support the conviction and
that there was nothing in the record indicating ineffective
assistance of counsel. (Sentencing: Tr. 43-44).
Leake was sentenced as a second violent felony offender to 25
years to life for Murder in the Second Degree, a consecutive
sentence of six to 12 years for Attempted Murder in the Second
Degree, a concurrent sentence of two and one-half to five years
for Assault in the Second Degree, and two concurrent sentences of
two to four years on the two counts of Criminal Possession of a
Weapon in the Third Degree. (Sentencing: Tr. 63-65). The total
sentence imposed was 31 years to life in prison. (Sentencing: Tr. 65).
C. Post-Trial Freedom of Information Act Request
Leake had been on parole at the time of the Fitzgerald murder.
After trial, through a Freedom of Information Act request, Leake
discovered a memorandum in his file at the New York State
Department of Parole, dated shortly after the murder, containing
the following notation:
On 11/20/91 [Leake] was arrested for Murder: [with]
intention. He admits guilt in this offense, but
stated that he was only defending himself against 6
male attackers. Det. Mack of Mount Vernon P.D.
confirms [Leake's] statement. ADA Fitzmorriss [sic]
of Westchester County District Attorneys [sic] Office
has requested that we not proceed with violation
process due to sensitive nature of this arrest.
State of New York Executive Department Division of Parole,
Case Summary, dated December 30, 1991 ("Parole Memorandum")
(reproduced as Ex. B to Application for Leave to Appeal to Court
of Appeals, dated February 12, 1998 ("Leave App.") (reproduced as
Ex. 5 to Resp. Mem.)); see also Brief of Defendant-Appellant,
undated ("Pet. App. Brief") (reproduced as Ex. 7 to Resp. Mem.),
at 23-25. At the bottom of this memorandum is written, "Due to
the request of the D.A.'s Office we are requesting No Delinquency
Pending Court Action." Parole Memorandum.
II. PROCEDURAL HISTORY
A. Leake's Appeal and First Section 440 Application
Through appointed counsel, Leake appealed his conviction to the
Appellate Division, Second Department. The brief submitted by
counsel raised the following six grounds for appeal:
1. Did the trial court err in admitting hearsay
statements of a third party which had a negative
impact on [Leake's] justification defense? 2. Did the court err in not suppressing statements
which were taken as the fruits of an illegal arrest
and which were further taken after [Leake] asserted
his right to remain silent and to get a lawyer?
3. Did the court err in not sanctioning a tardy
production of Brady material?
4. Did the People commit a serious Brady and Rosario
violation in failing to reveal a Division of Parole
memorandum which contained exculpatory material as
well as a statement of a witness who testified at a
5. Did the court err in its denial of a motion for a
trial order of dismissal and a later motion to set
aside the verdict where it appears there was
insufficient evidence of intent?
6. Did the trial court improperly charge the jury on
the defense of justification in that it referred to
the defense as "self-defense" where the evidence
showed that [Leake] may have been defending a third
Pet. App. Brief at 2. In addition, Leake submitted a pro se
supplemental brief, which raised the following three issues:
1. Did the failure of the investigatory agency to
collect blood samples which [were] potentially
exculpatory, deny [Leake's] rights under the
Constitution of the United States and h[i]nder his
due process rights to submit a complete defense[?]
2. Did the Court commit a serious error in allowing
the jury to view and possibly speculate to what was
being said in [a] 55 minute video without sound[?]
3. Amendment to attorney[']s original Brief (point
Should [an] arresting detective be required to seek
[a] warrant befor[e] seeking [an individual] known to
him to be a suspect and especially when he seeks that
suspect at his place of residence as required by the
New York State Constitution Amendments[?]
Pro Se, Supplemental Brief of Defendant/Appellant, undated
("Supp. Brief") (reproduced as Ex. 8 to Resp. Mem.), at 1. He
later elaborated that his third ground for appeal was a claim
that his rights were violated under Payton v. New York,
445 U.S. 573
(1980). See id. at 10-12.
While his appeal was pending, Leake filed a pro se motion
to vacate his sentence pursuant to N.Y. Crim. Proc. Law ("CPL") § 440.10. See Notice
of Motion to Vacate Judgment, dated October 4, 1995 (reproduced
as Ex. 12 to Resp. Mem.). He argued for a reversal of his
conviction based on (1) ineffective assistance of trial counsel;
(2) the prosecutor's failure to turn over information possessed
by Leake's parole officer; and (3) the failure to test Leake's
clothes for blood samples. Memorandum of Law [in Support of
Motion to Vacate], dated October 4, 1995 ("First 440 Motion")
(reproduced as Ex. 14 to Resp. Mem.), at 2-15. The trial court
dismissed this motion. With respect to the ineffective assistance
issues, the court stated:
Sufficient facts appear on the record with respect to
whether or not defense counsel should have requested
the Court to order testing of evidence and whether
failure to call witnesses constituted ineffective
assistance of counsel. As this motion was made at a
time when the defendant had an opportunity to advance
the same argument for appellate review, these issues
come under the parameters of [CPL §] 440.10(2)(b) and
dismissal is therefore mandated.
Decision and Order, dated August 8, 1996 ("First 440 Decision")
(reproduced as Ex. 10 to Resp. Mem.), at 2. As for Leake's
argument regarding the Parole Memorandum, the court rejected the
claim that counsel was ineffective for not discovering the
prosecutor's communications with his parole officer, stating that
Leake "fail[ed] to advance any argument as to how his counsel was
incompetent." Id. at 3. The court also stated that, to the
extent Leake was arguing that the action constituted
prosecutorial misconduct, Leake "failed to show how he was in any
way prejudiced by this action or how it was in any way improper."
Id. The respondent states that leave to appeal this decision
was ultimately denied by the Appellate Division on January 13,
1997. See Affidavit of Joseph M. Latino, filed October 17, 2003
(Docket #13) ("Latino Aff."), at 8.
On December 9, 1996, the Appellate Division, Second Department
affirmed Leake's conviction on direct appeal, holding: Viewing the evidence in the light most favorable to
the prosecution (see, People v. Contes, 60 N.Y.2d 620),
we find that it was legally sufficient to
establish [Leake's] guilt beyond a reasonable doubt.
Upon the exercise of our factual review power, we are
satisfied that the verdict of guilt was not against
the weight of the evidence (CPL 470.15(5)). Further,
the court's charge, as a whole, properly conveyed to
the jury the correct standard to be applied
concerning the [Leake's] justification defense
(see, People v. Adams, 69 N.Y.2d 805, 806; People v
Perez, 214 A.D.2d 592).
[Leake's] remaining contentions, including those
raised in his pro se brief, are either
unpreserved for appellate review or without merit.
People v. Leake, 234 A.D.2d 392
, 392 (2d Dep't 1996).
Thereafter, through retained counsel, Leake sought leave to
appeal to the New York Court of Appeals, raising all six issues
raised in the counseled brief to the Appellate Division
(incorporating the arguments made in Point 3 of the pro se
brief) as well as raising a prosecutorial misconduct claim with
respect to the blood evidence (similar to that raised in Point 1
of the pro se brief). Leave App. at 9-21. In addition,
arguments were added regarding: (1) ineffective assistance of
trial and appellate counsel, id. at 4-7; (2) additional Brady
and Rosario violations for failing to produce statements of
Eddie Krenshaw, an eyewitness to the crime, id. at 7-8; (3) the
absence of evidence in the record as to why a sworn juror was
removed on the day trial began, id. at 8-9; and (4)
inconsistencies between the testimony of the Medical Examiner and
other testimony regarding the type of weapon used in the crime,
id. at 9. The failure to raise these arguments below was
attributed to ineffective assistance of appellate counsel. See
id. at 4-9. The arguments Leake had made in his pro se
brief with regard to the 55-minute silent videotape were
abandoned. See Letter to James M. Parkison from Leake, dated
June 24, 2001 (annexed to Petition Under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody, filed August
14, 2001 (Docket #1) ("Petition")), at 1 (stating that this issue
was unexhausted and therefore requesting that it be disregarded).
Leave was summarily denied on March 27, 1998. People v. Leake,
91 N.Y.2d 942 (1998).
B. Leake's Second Section 440 Application
In July 1999, Leake filed a second pro se motion to vacate
the judgment. See Notice of Motion Pursuant to C.P.L. § 440.10
Subd. (1)(c) and (h), dated July 12, 1999 (reproduced as Ex. 17
to Resp. Mem.). Leake again argued that (1) the State violated
Brady in failing to retrieve blood spatters from the crime
scene and to have them tested to see if they matched Leake's
blood; and (2) the prosecutor knowingly presented false evidence
to the jury by arguing that all the blood found on the crime
scene belonged to the victim and by arguing that if Leake's
version of the events were true, one would expect to find
evidence of a cut or gash. Memorandum of Law [in Support of
Motion to Vacate], dated July 12, 1999 ("Second 440 Motion")
(reproduced as Ex. 19 to Resp. Mem.), at 4-13.
The trial court again denied Leake's motion stating that "there
is no legal basis to grant the relief which defendant seeks."
Decision and Order, dated August 16, 2000 ("Second 440 Decision")
(reproduced as Ex. 15 to Resp. Mem.), at 2-3. Citing CPL §
440.10(2)(b), the court noted that "[o]n two prior occasions"
Leake unsuccessfully argued that defense counsel failed to
request testing of the blood evidence and that Leake improperly
failed to advanced his current claims with respect to the blood
evidence on appellate review. Id. at 3. According to the
respondent, leave to appeal this decision was denied by the
Appellate Division on February 7, 2001. See Latino Aff. at 8. C. The Instant Petition
Leake submitted the instant Petition for writ of habeas corpus
to this Court's Pro Se Office on March 30, 2001. See Petition
at 1. While the Petition might at first blush appear to be
untimely with respect to a number of issues, Leake had previously
filed a habeas corpus petition on April 19, 1999, as discussed in
an Opinion and Order issued earlier in this action. See Opinion
and Order, filed August 14, 2003 (Docket #8), at 3. That first
petition was thereafter dismissed without prejudice in order to
allow Leake to pursue his state court remedies, provided he
promptly returned to federal court once these remedies were
exhausted. See id. at 2-3. Because Leake complied with this
directive, the earlier Opinion and Order equitably tolled the
statute of limitations and accepted the instant Petition as
timely under 28 U.S.C. § 2244(d)(1). Id. at 4-5.
Leake's Petition raises six grounds for relief: (1) the
erroneous admission of hearsay evidence severely prejudiced his
defense; (2) Leake's statements should have been suppressed; (3)
the trial court erred in not imposing sanctions for Brady
violations regarding exculpatory photographs; (4) the People
withheld the Parole Memorandum, thereby violating Leake's rights
under Brady and Rosario; (5) the People failed to prove the
intent element of Murder in the Second Degree; and (6) the court
erred in its charge to the jury. See Petition at 5-6 (including
continuation sheets); see also Memorandum of Law [in Support
of Traverse], filed January 5, 2004 (Docket #17) ("Traverse"),
The Traverse, submitted in response to the respondent's
opposition to the Petition, raises three additional grounds for
relief: (1) the People's failure to collect, preserve, and test
blood samples violated Leake's due process rights; (2) material
evidence regarding blood samples adduced at trial was false and was, prior to the entry of
judgment, known to the prosecutor or the court to be false; and
(3) trial counsel was ineffective. Traverse at 18-19, 30-32.
Given the liberal construction to be afforded pro se filings
and the applicability of the liberal amendment policy reflected
in Fed.R.Civ.P. 15(a), see, e.g., Littlejohn v. Artuz,
271 F.3d 360, 363-64 (2d Cir. 2001), the Court construed Leake's
Petition as raising these three additional claims and directed
the respondent to file a supplemental brief addressing them.
See Order, filed March 15, 2004 (Docket #18) ("Order"); see
also Supplemental Memorandum of Law, filed April 23, 2004
(Docket #19) ("Resp. Supp. Mem."); Petitioner's Reply to
Respondent's Supplemental Memorandum of Law, filed May 21, 2004
In addition, the Court directed Leake's trial counsel, Peter
Paul Insero, to submit an affidavit addressing Leake's claim of
ineffective assistance regarding the decision not to call Brown
and Dubose as witnesses. Order at 2. Insero submitted an
affidavit, see Attorney's Affirmation, dated April 7, 2004
("Insero Affirm."), and Leake replied, see Reply to Attorney's
Affirmation, filed May 21, 2004 (Docket #20) ("Reply to Insero
III. APPLICABLE LEGAL PRINCIPLES
A. Standard of Review
Under the Antiterrrorism and Effective Death Penalty Act of
1996 ("AEDPA"), a petition for writ of habeas corpus may not be
granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's
adjudication: "(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d).
The Second Circuit has held that for a state court decision to
constitute an "adjudication on the merits," the state court need
only base its decision on "the substance of the claim advanced,
rather than on a procedural, or other, ground." Sellan v.
Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). It is not necessary
for the state court to refer to the federal aspect of a claim or
to any federal law for AEDPA's deferential standard to apply.
Id. at 312.
In Williams v. Taylor, the Supreme Court held that a state
court decision is "contrary to" clearly established federal law
only "if the state court applies a rule that contradicts the
governing law set forth" in Supreme Court precedent or "if the
state court confronts a set of facts that are materially
indistinguishable from a decision [of the Supreme Court] and
nevertheless arrives" at a different result. 529 U.S. 362, 405-06
(2000). The Williams Court also held that habeas relief is only
available under the "unreasonable application" clause "if the
state court identifies the correct governing legal principle from
[the Supreme Court's] decisions but unreasonably applies that
principle to the facts of the prisoner's case." Id. at 413. A
federal court may not grant relief "simply because that court
concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law
erroneously or incorrectly." Id. at 411. Rather, the state
court's application must have been "objectively unreasonable."
Id. at 409. Moreover, a state court's determination of a
factual issue is "presumed to be correct" and that presumption may be rebutted only "by clear and convincing evidence."
28 U.S.C. § 2254(e)(1).
In this case, some of the claims at issue were adjudicated by
the Appellate Division as being "either unpreserved for appellate
review or without merit." Leake, 234 A.D.2d at 392. In such a
situation, where the decision does not disclose which claim has
been rejected on which ground, the Second Circuit has held that
the standard of review on federal habeas corpus depends on
whether it is clear from the record that the particular issue has
been properly preserved in the state courts. See Miranda v.
Bennett, 322 F.3d 171, 178 (2d Cir. 2003). Where the habeas
court finds that the issue has clearly been preserved, the
deferential AEDPA standard applies. See Ryan v. Miller,
303 F.3d 231, 245-46 (2d Cir. 2002). Where it is not clear that the
issue has been preserved, a pre-AEDPA that is, de novo
standard of review applies. See Miranda, 322 F.3d at 178. In
a recent case, however, the Second Circuit appears to have
questioned the vitality of the Miranda holding. See Su v.
Filion, 335 F.3d 119, 126 n. 3 (2d Cir. 2003). Rather than enter
into this thicket, we will simply apply the more favorable de
novo standard to the claims that fall into this category
inasmuch as, even under this standard, the claims fail.
AEDPA provides that "[a]n application for a writ of habeas
corpus on behalf of a person in custody pursuant to the judgment
of a State court shall not be granted unless it appears that the
applicant has exhausted the remedies available in the courts of
the State." 28 U.S.C. § 2254(b)(1)(A). "The exhaustion
requirement is not satisfied unless the federal claim has been
fairly presented to the state courts." Daye v. Attorney Gen.,
696 F.2d 186, 191 (2d Cir. 1982) (en banc) (internal quotation
marks and citations omitted), cert. denied, 464 U.S. 1048
(1984). This requirement is satisfied "if the legal basis of the
claim made in state court was the `substantial equivalent' of that of the habeas claim." Id. at 192 (quoting
Picard v. Connor, 404 U.S. 270, 278 (1971)).
A. Erroneous Admission of Hearsay Evidence
Leake's first claim is that certain hearsay evidence was
erroneously admitted, thereby severely prejudicing his defense.
Petition at 5; Traverse at 20-24. Although Leake made this
argument to the Appellate Division and to the Court of Appeals,
he arguably did not present this claim as raising any federal
issue. See Pet. App. Brief at 8-15; Leave App. at 10-13.
Under 28 U.S.C. § 2254(a), federal habeas review is available
for a state prisoner "only on the ground that he is in custody in
violation of the Constitution or laws or treaties of the United
States." Errors of state law are not subject to federal habeas
review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68
(1991); DiGuglielmo v. Smith, 366 F.3d 130, 136-37 (2d Cir.
2004). To be entitled to habeas relief a petitioner must
demonstrate that the conviction resulted from a state court
decision that violated federal law. See, e.g., Estelle, 502
U.S. at 68.
Rather than parse whether the state courts were alerted to the
federal nature of the claim, however, the Court will exercise its
option to simply adjudicate the claim on the merits. See
28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus
may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the
State."). Federal habeas review of claims based on the erroneous
admission of evidence is permitted only if the alleged error
deprived the petitioner of a "fundamentally fair trial." Rosario
v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988). To obtain relief,
the petitioner has the burden of showing that an evidentiary
error "`had substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson,
507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States,
328 U.S. 750, 775 (1946)); accord Edmonds v. McGinnis,
11 F. Supp.2d 427, 435 (S.D.N.Y. 1998).
Leake argues that the admission, through Edwards' testimony, of
Brown's statement that Brown was "going to beat the crap out of
[Edwards]" (Edwards: Tr. 216) prejudiced Leake's defense because
it caused the jury to speculate that Leake was an aggressor in
the fight, thereby undermining his defense of justification.
Traverse at 20-24. But it cannot be said that the admission of
this evidence either deprived Leake of a fair trial or had a
substantial effect on the jury's verdict. First, the statement
does not even implicate Leake's own state of mind; rather, it at
most addresses only Brown's intentions. Second, the statement was
of minimal relevance because the record was already clear that
the fight began as a dispute between Brown and Swain. Swain,
after all, had punched Brown earlier in the evening in Edwards's
presence (Edwards: Tr. 189-91; Swain: Tr. 450-51) and Brown had
come back to the scene accompanied by Leake (Edwards: Tr. 196-99,
219-20; Ross: Tr. 353-54; Swain: Tr. 454-55). Moreover,
regardless of who was the initial aggressor, the evidence
demonstrated that Leake escalated the fight by pulling out a
weapon. (Swain: Tr. 458, 464; Ross: Tr. 356, 371). Leake, of
course, confessed to wielding the knife, to erratically swinging
it at anyone who came close to him, and to potentially stabbing
one or two people. (Garcia: Tr. 537-38). Given such evidence, the
admission of Brown's statement even if it is properly viewed as
inadmissible hearsay cannot be said to have had a "substantial
and injurious" effect on the jury, thereby preventing Leake from
having obtained a fair trial. B. Failure to Suppress Leake's Statements
Leake next argues that he is entitled to habeas relief because
the Mount Vernon Police Department violated his Payton rights
and therefore the trial court erred in not suppressing his
subsequent written and videotaped statements. Traverse at 7-10.
Payton held that the Fourth Amendment "prohibits the police
from making a warrantless and nonconsensual entry into a
suspect's home in order to make a routine felony arrest." 445
U.S. at 576.
As detailed above, a pretrial hearing was conducted in this
case to determine the admissibility of Leake's oral, written, and
videotaped statements to the police. The hearing was originally
cast as a Huntley hearing to determine only whether Leake had
been read his Miranda rights and whether he had knowingly and
voluntarily waived such rights prior to giving his statements.
(See Hr'g Tr. I. 3; Hr'g Tr. II. 51). During the hearing,
defense counsel successfully argued that the scope of the hearing
should be broadened to include Payton issues. (See Hr'g Tr.
After hearing testimony that Leake was not arrested pursuant to
a warrant (Garcia: Hr'g Tr. II. 70) and that Leake resided at 160
Warburton Avenue, Apartment 18E (P. Leake: Hr'g Tr. II. 220;
Leake: Hr'g Tr. II. 248-49), the trial court determined that
Leake "was not in custody at the apartment on Warburton Avenue,
[and] that he willingly accompanied police officers to the Mount
Vernon police headquarters for questioning" (Hr'g Tr. II. 382).
Accordingly, the court rejected Leake's Payton argument and
denied his motion to suppress his various statements to the
police. (Hr'g Tr. II. 383).
Leake raised the argument that his arrest violated Payton on
his direct appeal and in seeking leave to appeal to the Court of
Appeals. See Pet. App. Brief at 15-20; Supp. Brief at 10-12; Leave App. at 13-15. Thus, this claim has been exhausted. Habeas
relief may not be granted with respect to this claim, however,
under the doctrine articulated in Stone v. Powell,
428 U.S. 465, 494 (1976), which bars federal habeas review of Fourth
Amendment claims where the State has provided an opportunity for
"full and fair" litigation of the Fourth Amendment claim. This
doctrine applies to bar habeas review of claims made under
Payton. See, e.g., Nunez v. Duncan, 2003 WL 22284182, at
*10 (E.D.N.Y. Aug. 20, 2003); Taylor v. Kuhlmann, 36 F. Supp.2d 534,
549 (E.D.N.Y. 1999); Shaw v. Scully, 654 F. Supp. 859,
863-65 (S.D.N.Y. 1987). In light of Stone, the Second Circuit
has held that review of Fourth Amendment claims in federal habeas
corpus petitions may be undertaken only in two circumstances: (1)
"[i]f the state provides no corrective procedures at all to
redress Fourth Amendment violations," or (2) "where the state
provides the process but in fact the defendant is precluded from
utilizing it by reason of an unconscionable breakdown in that
process." Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977)
(en banc), cert. denied, 434 U.S. 1038 (1978); accord
Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992).
Neither circumstance applies here. First, New York State has a
procedure for litigating Fourth Amendment claims. See CPL §§
710.10-.70. Second, Leake actually utilized the State's process
both through his participation in the pretrial suppression
hearing and on direct appeal. Accordingly, Leake's Payton claim
cannot be reviewed by this Court. See, e.g., Graham v.
Costello, 299 F.3d 129, 134 (2d Cir. 2002) ("[O]nce it is
established that a petitioner has had an opportunity to litigate
his or her Fourth Amendment claim (whether or not he or she took
advantage of the state's procedure), the [state] court's denial
of the claim is a conclusive determination that the claim will
never present a valid basis for federal habeas relief.");
Capellan, 975 F.2d at 70 n. 1 ("`[F]ederal courts have approved New York's
procedure for litigating Fourth Amendment claims . . . as being
facially adequate.'" (quoting Holmes v. Scully, 706 F. Supp. 195,
201 (E.D.N.Y. 1989))); Nunez, 2003 WL 22284182, at *10;
Taylor, 36 F. Supp.2d at 549; Shaw, 654 F. Supp. at 863-64.
C. Failure to Impose Brady Sanctions with Respect to
Leake argues that he is entitled to habeas relief because the
People violated Brady v. Maryland, 373 U.S. 83 (1963), by
wrongfully withholding photographs showing the extent of Eddie
Brown's injuries and because the trial court erred in not
imposing sanctions for this violation. Petition at 6; Traverse at
11-14.*fn5 Leake has exhausted his state law remedies with
regard to this claim. See Pet. App. Brief at 20-23; Leave App.
In order to establish a Brady violation, "`[t]he evidence at
issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must have
been suppressed by the State, either willfully or inadvertently;
and prejudice must have ensued.'" Banks v. Dretke,
124 S.Ct. 1256, 1272 (2004) (quoting Strickler v. Greene, 527 U.S. 263,
281-82 (1999)); accord Boyette v. Lefevre, 246 F.3d 76, 89
(2d Cir. 2001). In addition, for prejudice to have resulted, any
such exculpatory or impeachment evidence must have been "material
either to guilt or to punishment." Brady, 373 U.S. at 87.
"[T]he materiality standard for Brady claims is met when `the
favorable evidence could reasonably be taken to put the whole
case in such a different light as to undermine confidence in the verdict.'"
Banks, 124 S.Ct. at 1276 (quoting Kyles v. Whitley,
514 U.S. 419, 435 (1995)). Due process requires that Brady material be
disclosed "in time for its effective use at trial." In re United
States (Coppa), 267 F.3d 132, 142 (2d Cir. 2001) (citing Leka
v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001)).
The Appellate Division did not expressly rule on this issue,
instead stating that Leake's remaining contentions "are either
unpreserved for appellate review or without merit." Leake, 234
A.D.2d at 392. Inasmuch as this particular issue was preserved,
it could reasonably be assumed that the Appellate Division's
ruling was on the merits of the claim, which would implicate the
deferential standard of review in 28 U.S.C. § 2254(d). In any
event, the claim fails even under a de novo standard of
Leake's defense at trial was justification: he argued both that
he was defending himself from someone who came at him with a
knife and that he was defending Brown who was being severely
beaten. (See Tr. 757, 763-65, 768, 771). Brown's uncle, Allen
Brown, was called as a defense witness to authenticate
photographs he took of Brown after the November 20, 1991
incident. (A. Brown: Tr. 671-76). Prior to Allen Brown's
testimony, defense counsel moved for a mistrial based on the fact
that he had not been shown these photographs until the week
before Detective Garcia's testimony. (Tr. 620-21). The trial
court stated that it considered these photographs Brady
material because of their potential to support a defense of
justification but held that there was no prejudice caused by the
People's failure to turn them over to defense counsel earlier.
(Tr. 623-24). The court also noted that it was the People's
position throughout the trial that Brown was in fact severely
beaten in the presence of Leake. (Tr. 623). The People agreed to stipulate that the photos were received by the police
department on December 2, 1991 and had been in their continuous
custody. (Tr. 678-82).
Leake has failed to demonstrate any prejudice arising out of
the People's failure to provide these photographs at an earlier
time. The defense was aware of the photographs in time to make
effective use of them at trial as they themselves offered the
photographs into evidence. Cf. Leka, 257 F.3d at 100-03
(disclosure only days before trial of the name and address of an
off-duty police officer who had witnessed the murder was "too
little, too late"). Leake's only argument in this regard is that
he was deprived of the opportunity to cross-examine witnesses,
particularly Edwards, regarding the extent of the injuries
inflicted on Brown and "the viciousness of the beating." Traverse
at 12-14. But he fails to show that the extent of Brown's
injuries was a material issue at trial, given that Edwards openly
admitted that he repeatedly struck Brown. (Edwards: Tr. 222-24,
230, 320-22). In addition, defense counsel was able to elicit
testimony that Edwards hit Brown first (Edwards: Tr. 276) and
that Edwards knocked Brown out at some point (Swain: Tr. 506).
Moreover, even if the defense had been completely unaware of the
existence of the photographs during the cross-examination of the
People's witnesses, nothing prevented Leake from cross-examining
any witnesses on the issue of Brown's injuries or from
subpoenaing the witnesses to testify on this topic further as
part of the defense case. Thus, Leake's claim that the People's
failure to turn over these photographs earlier constituted a
Brady violation is without merit.
D. Failure to Produce the Parole Memorandum
Leake alleges another Brady violation based on the People's
failure to turn over the Parole Memorandum that Leake discovered
after his conviction. Petition at 6; Traverse at 15-17. Leake also made this argument on direct appeal to the Appellate
Division and to the New York Court of Appeals. See Pet. App.
Brief at 23-25; Leave App. at 18-19. In deciding the direct
appeal, the Appellate Division stated that this claim was "either
unpreserved . . . or without merit." Leake, 234 A.D.2d at 392.
In addition, Leake presented arguments about the Parole
Memorandum in his first CPL § 440.10 motion, see First 440
Motion at 10-14, apparently because it was discovered after trial
and was therefore not part of the trial record. See Petition ¶
13; see also CPL § 440.10(1)(g) (motion to vacate may be
based on "[n]ew evidence . . . discovered since the entry of a
judgment"). The trial court considered this claim on the merits,
holding that Leake had failed to establish prejudice caused by
the failure to disclose the memorandum or to demonstrate how it
was improper prosecutorial conduct in any way. First 440 Decision
at 3. Leave to appeal this decision was subsequently denied.
See Latino Aff. at 8. Thus, Leake has fully exhausted this
claim, it is preserved for habeas review under 28 U.S.C. § 2254,
and AEDPA's deferential standard aplies.
As noted, the memorandum uncovered by Leake stated as follows:
On 11/20/91 [Leake] was arrested for Murder: [with]
intention. He admits guilt in this offense, but
stated that he was only defending himself against 6
male attackers. Det. Mack of Mount Vernon P.D.
confirms [Leake's] statement. ADA Fitzmorriss [sic]
of Westchester County District Attorneys [sic] Office
has requested that we not proceed with violation
process due to sensitive nature of this arrest.
. . . .
Due to the request of the D.A.'s Office we are
requesting No Delinquency Pending Court Action.
Parole Memorandum. Leake "submits that the People's case would
have been shattered had this memorandum been released." Traverse
at 15. This argument is based on Leake's assumption that the portion of the document stating "Det. Mack . . .
confirms [Leake's] statement," Parole Memorandum, "possibly could
mean that based on the detective's investigation, he was able to
confirm that [Leake] was jumped by six men." Traverse at 16.
If Detective Mack in fact possessed information which
demonstrated that Leake "was only defending himself against 6
male attackers," Parole Memorandum, that information most
certainly would constitute Brady material which, if suppressed,
"could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict,"
Banks, 124 S.Ct. at 1276 (internal quotation marks and
citation omitted). However, the notation does not indicate that
Detective Mack, who had only a peripheral role in the case (see
Mack: Hr'g Tr. II. 142-90), possessed any such exculpatory
information. No evidence in the record suggests otherwise. The
Parole Memorandum can be reasonably read only as indicating that
Detective Mack confirmed that Leake made a statement
claiming that the murder was justified. That Leake claimed to be
acting in self-defense when he was questioned by authorities was
not a disputed fact at trial and was presented to the jury
through the testimony of Detective Garcia (Garcia: Tr. 535-39,
To the extent Leake argues that the failure to produce this
memorandum prior to trial is also a violation of People v.
Rosario, 9 N.Y.2d 286, cert. denied, 368 U.S. 866 (1961),
see Traverse at 15-17, a Rosario claim arises solely under
New York State law and is therefore not cognizable on habeas
review, see, e.g., Bethune v. Superintendent, Bare Hill
Corr. Facility, 299 F. Supp.2d 162, 165 (W.D.N.Y. 2004);
Alston v. Ricks, 2003 WL 42144, at *6 (S.D.N.Y. Jan. 7, 2003). E. Insufficient Evidence of Intent
Leake asserts that the evidence introduced at his trial did not
support a conviction for intentional murder. Petition at 6
(continuation sheet); Traverse at 25-29. The respondent contends
that this is an issue purely of state law, which is not
cognizable on federal habeas review, and that the claim is
unexhausted. Resp. Mem. at 11; see also Resp. Supp. Mem. at
3-5. However, by arguing in the state courts that the evidence
was insufficient to support his murder conviction on the element
of intent, see, e.g., Pet. App. Brief at 26-28, Leake
adequately presented to the state courts a federal due process
challenge to the sufficiency of the evidence under Jackson v.
Virginia, 443 U.S. 307 (1979), even though counsel failed to
refer to any federal right or to federal case law in the state
briefs. See Daye, 696 F.2d at 194 (issue is fairly presented
to the state courts if the petitioner asserted the claim "in
terms so particular as to call into mind a specific right
protected by the Constitution" or alleged "a pattern of facts
that is well within the mainstream of [federal] constitutional
litigation"). As this issue was raised before the Appellate
Division and in seeking leave to appeal to the Court of Appeals,
see Pet. App. Brief at 26-28; Leave App. at 19-20, it is
exhausted for federal habeas purposes. In addition, the Appellate
Division ruled on the merits on this claim, holding that the
evidence "was legally sufficient to establish the defendant's
guilt beyond a reasonable doubt." Leake, 234 A.D.2d at 392.
Thus, habeas relief is not available unless this determination
was "contrary to" or "an unreasonable application of" federal
law. 28 U.S.C. § 2254(d).
The Due Process Clause of the Fourteenth Amendment prohibits a
criminal conviction "except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime." In re
Winship, 397 U.S. 358, 364 (1970). In light of Winship, the
Supreme Court has held that when reviewing a state court conviction, a federal habeas court
must consider whether there was "sufficient evidence to justify a
rational trier of the facts to find guilt beyond a reasonable
doubt." Jackson, 443 U.S. at 313.
Nonetheless, it is well-established that a habeas petitioner
challenging the sufficiency of the evidence underlying his
conviction bears a "very heavy burden." Knapp v. Leonardo,
46 F.3d 170, 178 (2d Cir.) (internal quotation marks and citation
omitted), cert. denied, 515 U.S. 1136 (1995). To prevail, the
petitioner must show that "upon the record evidence adduced at
the trial no rational trier of fact could have found proof of
guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324;
accord Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir.
2002). In conducting this inquiry, all of the evidence and all
possible inferences that may be drawn from the evidence are to be
considered in the light most favorable to the prosecution.
Jackson, 443 U.S. at 319; accord Maldonado v. Scully,
86 F.3d 32, 35 (2d Cir. 1996). Furthermore, "assessments of the
weight of the evidence or the credibility of witnesses are for
the jury" and thus a habeas court must "defer to the jury's
assessments of both of these issues." Maldonado, 86 F.3d at 35;
accord Rosa v. Herbert, 277 F. Supp.2d 342, 347 (S.D.N.Y.
2003) ("the court must defer to the jury's assessments of the
weight of evidence and the credibility of witnesses"); Fagon v.
Bara, 717 F. Supp. 976, 979-80 (E.D.N.Y. 1989) ("this court is
not free to make credibility judgments about the testimony . . .
or to weigh conflicting testimony").
In New York, a person is guilty of Murder in the Second Degree
when "[w]ith the intent to cause the death of another person, he
causes the death of such person or of a third person." N.Y. Penal
Law § 125.25(1). "A person acts intentionally with respect to a
result or to conduct described by a statute defining an offense
when his conscious objective is to cause such result or to engage in such conduct." Id. § 15.05(1). Leake contends that
both his conviction for Murder in the Second Degree (for
Fitzgerald's death) and his conviction for Attempted Murder in
the Second Degree (for Edwards's injuries) are improper because
the People failed to prove that he had the requisite intent
beyond a reasonable doubt. Traverse at 29.*fn6
Sufficient evidence existed, however, to show that Leake had
the requisite intent. With respect to Fitzgerald, Edwards saw
Leake hit Fitzgerald in the ribs from behind. (Edwards: Tr.
225-27). Ross saw Leake stab Fitzgerald in the side. (Ross: Tr.
356, 374-75). With respect to Edwards, Edwards testified that
Leake hit him in the back (with an object that at the time he
thought was a pipe). (Edwards: Tr. 227-29). Swain testifed that
Leake stabbed Edwards in the back with a knife. (Swain: Tr. 459).
From this testimony, the jury could easily infer that Leake acted
with the "conscious objective" of committing the acts in question
and thus acted intentionally. See, e.g., United States v.
Danzey, 594 F.2d 905, 916 (2d Cir.) ("the testimony of a single,
uncorroborated eyewitness is generally sufficient to support a
conviction"), cert. denied, 441 U.S. 951 (1979); see also
Tibbs v. Florida, 457 U.S. 31, 45 n. 21 (1982) ("In this case,
[the victim] provided eyewitness testimony to the crimes. If the
jury believed her story, the State's presentation was more than
sufficient to satisfy due process."). Certainly, Leake has not
met his burden of establishing that "no rational trier of fact
could have found proof of [his intent] beyond a reasonable
doubt," Jackson, 443 U.S. at 324. F. Error in Charge to the Jury
Leake's next argument is that the trial court erred in
referring to the justification defense as "self-defense," when in
fact it includes the defense of others. Petition at 6
(continuation sheet); see also N.Y. Penal Law § 35.15.
Although this issue was raised to both the Appellate Division and
the Court of Appeals, no federal issues were raised in either
application. See Pet. App. Brief at 28-29; Leave App. at 20. As
a result, the respondent now argues that this ground for relief
raises only a state law issue not reviewable by this Court. Resp.
Mem. at 11.
"The adequacy of a jury charge is ordinarily a matter of state
law." Hoover v. Senkowski, 2003 WL 21313726, at *9 (E.D.N.Y.
May 24, 2003); see also Blazic v. Henderson, 900 F.2d 534,
541-43 (2d Cir. 1990) (although failure to charge jury on
justification defense was error of state law, error did not
constitute grounds for federal habeas relief). The Second Circuit
has repeatedly held that "`[i]n order to obtain a writ of habeas
corpus in federal court on the ground of error in a state court's
instructions to the jury on matters of state law, the petitioner
must show not only that the instruction misstated state law but
also that the error violated a right guaranteed to him by federal
law.'" Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001)
(quoting Casillas v. Scully, 769 F.2d 60, 63 (2d Cir. 1985)).
To warrant habeas relief, the petitioner must show that "the
ailing instruction by itself so infected the entire trial that
the resulting conviction violates due process." Cupp v.
Naughten, 414 U.S. 141, 147 (1973).
Leake does not argue that the entire charge on the defense of
justification was infected with error. See, e.g., Leave App.
at 20. Rather, he contends only that in one instance, the court
labeled the defense as "self-defense" without referring to the
defense of a third person. Id.; see Tr. 871 ("So the first
duty of the jury under the defense of self-defense when it is
raised is to determine who was the initial aggressor, the victim or the
defendant."). Leake does not dispute that in other portions of
the charge, the court made clear that justification encompasses
both defense of self and defense of a third person. (See Tr.
869-72, 874, 876-77).
A review of the charge indicates that the trial court offered
the term "self-defense" merely as a shorthand name for the
justification defense. (See Tr. 867-68 ("you must then turn to
consider the defense known in our law in New York as
justification or which is commonly referred to as
self-defense")). The court repeatedly referred to defense of
another person as being part of the justification defense. (Tr.
869-72, 874, 876-77). The Appellate Division addressed this issue
on Leake's direct appeal, citing to New York case law and holding
that "the court's charge, as a whole, properly conveyed to the
jury the correct standard to be applied concerning the
defendant's justification defense." Leake, 234 A.D.2d at 392
Given the trial court's clear instructions, Leake has not
demonstrated that any error in the trial court's instruction on
justification "infected the entire trial" resulting in a
conviction that "violates due process," Cupp, 414 U.S. at 147.
Thus, habeas relief is unavailable for this claim.
G. Failure to Collect, Preserve, and Test Blood Samples
Leake makes several claims relating to his complaint that there
was a failure to collect and test blood samples found at the
scene of the crime and on his clothes. See Traverse at 18-19,
30-32. Determining whether these claims have been exhausted or
procedurally defaulted is complicated by the fact that Leake
raised the issue of the failure to test the blood samples in the
context of several different claims in the state courts: (1) as a
Brady claim, see Supp. Brief at 7-8; Second 440 Motion at
4-8; (2) as a claim that the prosecutor knowingly presented
materially false evidence, see First 440 Motion at 14-15; Leave
App. at 6-7, 20-21; Second 440 Motion at 9-13; and (3) as an ineffective assistance of counsel claim,
see First 440 Motion at 2-8; Leave App. at 6-7. In his
Traverse, Leake presents these same three issues. See Traverse
at 18 ("The People's failure to collect and preserve potentially
exculpatory evidence (blood samples), violated Petitioner's due
process rights."); id. at 30 ("Material evidence adduced at
trial [regarding blood evidence] . . . was false and . . . known
by the prosecutor . . . to be false."); id. at 32 (referring to
his first CPL § 440.10 motion, which raised, inter alia,
counsel's ineffectiveness for failing to have the blood tested
and for allowing the prosecutor to elicit false testimony).
The evidence relevant to the blood sample issue is as follows:
Officer Podszus arrived at the crime scene shortly after midnight
on November 20, 1991 to look for any evidence. (Podszus: Tr.
120). He testified that he saw bloodstains on the pavement and on
the sidewalk (Podszus: Tr. 122, 129) and that photographs of the
crime scene showed the area where these bloodstains were found
(Podszus: Tr. 131-34). No blood samples were collected at the
scene. (See Podszus: Tr. 163-64; see also Tr. 154
(statement by prosecutor that "there were no samples collected
and no samples submitted to the laboratory")). Pursuant to a
search warrant, Detective Garcia recovered "one blue bloody
sweatshirt" and other clothing from Leake's apartment. (Garcia:
Hr'g Tr. II. 118-19). The blood on these items was never tested
to determine whose blood it was.
The basic argument underlying all of Leake's blood sample
claims is: (1) blood samples should have been collected from the
scene and from Leake's clothes and (2) had they been tested, they
would have demonstrated that Leake was also injured in the
altercation, supporting his defense and proving false the
prosecutor's suggestion that Leake's version of the events belied common sense (see Tr. 795-96). Leake presented this argument in
one form or another to every state court that heard his case.
For purposes of addressing the grounds for habeas relief, we
will address the issues as Leake presented them in his Traverse.
While the respondent has argued that some of these claims are
procedurally barred, Resp. Mem. at 10-11; Resp. Supp. Mem. at
12-16, it is not necessary to reach this question inasmuch as a
federal habeas court may "hurdl[e] the procedural questions to
reach the merits of a habeas petition" where the underlying issue
is "easily resolvable against the habeas petitioner, whereas the
procedural-bar issue involve[s] complicated issues of state law."
Dunham v. Travis, 313 F.3d 724, 729-30 (2d Cir. 2002) (internal
quotation marks and citation omitted).
1. Failure to Preserve Exculpatory Evidence
Leake argues that the prosecution violated Brady by not
preserving the evidence so that it could be tested for Leake's
own blood. Traverse at 18-19. To establish a Brady violation,
"[t]he evidence at issue must be favorable to the accused, either
because it is exculpatory, or because it is impeaching; that
evidence must have been suppressed by the State, either willfully
or inadvertently; and prejudice must have ensued." Banks, 124
S.Ct. at 1272 (internal quotation marks and citation omitted).
Leake fails to demonstrate either that the blood evidence, if
preserved and tested, would have been "favorable to" him or that
prejudice resulted from the failure to preserve and test it. The
only evidence or even claim as to Leake's wounds involved Leake's
claim that he deflected the knife with the palm of his left hand
(See Garcia: Tr. 539-40). And the only testimony with respect
to his hand was that there was a "scratch" on it. (Garcia: Tr.
540). Photographs introduced into evidence were described as showing the same
thing. (Garcia: Tr. 560). Had there been some trace of Leake's
blood found on the clothes or on the pavement, this would have
added nothing to Leake's defense as Leake has not disputed that
the only wound that he received was to his left hand See,
e.g., Traverse at 19. If there were blood on the clothing or
the pavement, it would have shown at most that the scrape,
described by Detective Garcia and shown in the photographs, was
capable of producing some testable amount of blood. Thus, this is
hardly a case where the evidence "could reasonably [have been]
taken to put the whole case in such a different light as to
undermine confidence in the verdict," Banks, 124 S.Ct. at 1276
(internal quotation marks and citation omitted).
2. Introduction of Materially False Evidence
Leake argues that the prosecution presented false evidence
during the prosecutor's summation. Traverse at 30-31. Leake's
complaint revolves around the prosecution's argument that Leake's
justification defense should be discredited (Tr. 777, 779-80,
783, 792-98). As part of this argument, the prosecutor stated:
Yes, the evidence does show that [Leake] had a scrape
or a scratch on his left hand But is that what
common sense would tell you you would expect to see
if a person had caught a knife in the fashion he
described? Wouldn't you expect to see a gash, a cut,
something that was actually bleeding, something that
was actually oozing if it occurred the way that Eddie
Leake described it?
(Tr. 795-96). From this, Leake argues that the prosecutor
"deliberately mislead [sic] and lied" to the jury by denying that
Leake had cut his hand Traverse at 30. Previously, Leake had
faulted the prosecutor for "stat[ing] to the jury that all of the
blood in the crime scene photographs belonged to the victim,
when, in fact, there was no evidence submitted at trial
concerning the collecting and testing of blood samples." Leave App. at 6-7.
However, the record reflects that the prosecutor made no such
To obtain habeas relief as a result of remarks by the
prosecutor during summation, the remarks must involve some sort
of "misconduct." E.g., Blissett v. Lefevre, 924 F.2d 434, 440
(2d Cir.), cert. denied, 502 U.S. 852 (1991). In addition,
the petitioner "must demonstrate that he suffered actual
prejudice because the prosecutor's comments . . . had a
substantial and injurious effect or influence in determining the
jury's verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir.
1994), cert. denied, 516 U.S. 1152 (1996); accord Greer v.
Miller, 483 U.S. 756, 765 (1987) (prosecutorial misconduct
violates a defendant's due process rights only when it is "of
sufficient significance to result in the denial of the
defendant's right to a fair trial" (internal quotation marks and
citations omitted)); Bohan v. Kuhlmann, 234 F. Supp.2d 231,
269 (S.D.N.Y. 2002), aff'd, 2003 WL 21401287 (2d Cir. June 16,
2003), cert. denied, 124 S.Ct. 1420 (2004). Leake has not
met this burden.
The prosecutor's argument was consistent with the only evidence
in the record regarding Leake's wounds: the testimony of
Detective Garcia and the photographs introduced of Leake's hand
taken hours after the incident (Garcia: Tr. 539-40, 559-60).
There is no allegation, let alone evidence submitted by Leake,
that this testimony was false or that the prosecutor otherwise
allowed false evidence to be presented. Because Leake has not
pointed to any statement made by the prosecutor that was not
based on record evidence, he cannot show that the prosecutor's
statements during summation constituted "misconduct" or were in
any way improper. 3. Ineffective Assistance of Counsel for Failing to Have Blood
Tested and for Allowing the Prosecutor to Present False Evidence
Incorporating by reference his arguments in the state court,
see Traverse at 32 (incorporating Point I of First 440 Motion),
Leake argues that his counsel was ineffective for failing to test
the blood evidence and for allowing the prosecutor to make
improper remarks about his injuries. First 440 Motion at 3, 5,
7-8. Establishing ineffective assistance of counsel requires a
petitioner to show: (1) "that counsel's representation fell below
an objective standard of reasonableness"; and (2) "that there is
a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 688, 694 (1984);
accord Massaro v. United States, 538 U.S. 500, 505 (2003)
("[A] defendant claiming ineffective counsel must show that
counsel's actions were not supported by a reasonable strategy and
that the error was prejudicial.").
Here, Leake obviously has not demonstrated the first strand:
that his counsel's representation was objectively unreasonable.
This is because Leake has not shown that there was any basis for
counsel to believe that the testing of blood would have been of
any particular benefit to Leake's defense given that Leake's
own confession referred only to an injury to his left hand (see
Garcia: Tr. 540) and that the only evidence before counsel,
including photographs, showed that Leake had only a scratch or
scrape to that hand (see Garcia: Tr. 539-40, 559-60). While
Leake states that an investigation would have supported his
contention that he "slashed his left palm `hand,'" First 440
Motion at 8, counsel could reasonably have believed that the
primary evidence of the injury to Leake's hand was the photograph
of the hand itself not whether some testable amount of blood
might have emanated from this relatively minor wound.
Furthermore, because the prosecutor's remarks regarding the injuries Leake
allegedly sustained were in no way improper, counsel certainly
could not have been unreasonable for not objecting to those
Because Leake has not shown that his counsel was unreasonable
in choosing not to seek tests of blood from the sidewalk or
clothing or in choosing not to object during the prosecutor's
summation, Leake has not made out a claim of ineffective
assistance of counsel.
H. Additional Ineffective Assistance of Counsel Claims
Leake's remaining ground for relief is that he was denied the
effective assistance of trial counsel for various other reasons.
He failed to raise these grounds in his Petition for habeas
relief. See Petition at 5-6 (including continuation sheets). In
his Traverse, he raised these issues by referring the Court to
his first motion to vacate "for a complete review of petitioner's
argument." Traverse at 32. In that motion to vacate, Leake argued
that trial counsel was ineffective for (1) failing to investigate
Leake's parole officer; (2) not calling two eyewitnesses to the
crime (Brown and Dubose) to testify on Leake's behalf; (3)
failing to object to the prosecutor's presentation of evidence
that Edwards was only stabbed twice when there was a third wound
allegedly inconsistent with the weapon Leake used; and (4)
failing to present a justification defense. First 440 Motion at
2-10. He also alleged generally that trial counsel "fail[ed] to
prepare for trial, and [failed to] guard against inadmissible
evidence, [failed to] understand the basi[c] principles of the
criminal law, [and failed to] protect defendant's Constitutional
rights [and] denied defendant equal protection of law." Id. at
The trial court reviewed Leake's first motion to vacate and
dismissed Leake's claim that counsel was ineffective for failing
to call two witnesses because sufficient facts existed in the
record such that the claim should have been raised on direct
appeal. First 440 Decision at 2. As for the ineffective assistance claim based on defense counsel's
failure to investigate Leake's parole officer, the court found
that Leake had failed to advance any argument as to how counsel
was incompetent in this regard. Id. at 2-3. The trial court did
not considered Leake's other claims. See id. at 1-3.
The respondent argues that Leake's ineffective assistance
claims have been procedurally defaulted because they were not
raised in Leake's direct appeal. See Resp. Supp. Mem. at 17-21.
Although New York law requires dismissal of a motion to vacate
where the judgment is pending on appeal and sufficient facts
appear on the record to permit adequate review of the issue,
see CPL § 440.10(2)(b), the respondent's argument fails to
consider that at least some of Leake's ineffective assistance
claims particularly his claim regarding counsel's failure to
call two eyewitnesses were not record-based, see, e.g.,
Bonilla v. Portuondo, 2004 WL 350694, at *10 (S.D.N.Y. Feb. 26,
2004) (Report and Recommendation) (holding that CPL §
440.10(2)(c) New York's provision barring collateral review of
record-based claims not raised on direct appeal is not
regularly followed with respect to ineffective assistance claims
involving the failure to call witnesses); see also People v.
Brown, 45 N.Y.2d 852, 853-54 (1978) ("Generally, the
ineffectiveness of counsel is not demonstrable on the main
record. . . . Consequently, in the typical case it would be
better, and in some cases essential, that an appellate attack on
the effectiveness of counsel be bottomed on an evidentiary
exploration by collateral or post-conviction proceeding brought
under CPL 440.10."). In Leake's first CPL § 440.10 motion, he
presented sworn statements from both Brown and Dubose, neither of
which was part of the record on Leake's direct appeal. See
Sworn Statement of Edward Brown, dated June 1, 1993 ("Brown
Aff.") (annexed as Ex. C to First 440 Motion); Sworn Statement of
Robert Dubose, dated June 23, 1993 ("Dubose Aff.") (annexed as Ex. D to First
440 Motion). Rather than resolving the issue of the adequacy of
the state procedural bar, this Court will reach the merits of
Leake's ineffective assistance claims as the claims are more
simply resolved on that basis. See Dunham, 313 F.3d at
As noted previously, to establish ineffective assistance of
counsel a petitioner must establish both deficient performance
and prejudice. Strickland, 466 U.S. at 687. In evaluating the
first prong, "`[j]udicial scrutiny . . . must be highly
deferential'" and "`every effort [must] be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances
of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time.'" Bell v. Cone,
535 U.S. 685, 698 (2002) (alterations in original) (quoting Strickland,
466 U.S. at 689); see Dunham, 313 F.3d at 730 (according
counsel a presumption of competence). In determining whether a
petitioner has demonstrated prejudice caused by counsel's errors,
the Second Circuit generally "requires some objective evidence
other than defendant's assertions to establish prejudice." Pham
v. United States, 317 F.3d 178, 182 (2d Cir. 2003) (citing
United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998)
(per curiam)). In addition, "strategic choices made after
thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable." Strickland, 466 U.S. at
690. Each of Leake's claims is considered under this standard.
1. Failure to Investigate Parole Officer
Leake claims that counsel was ineffective for failing to
investigate the parole officer identified in the Parole
Memorandum that Leake uncovered after trial. First 440 Motion at
3, 6-7. But defense counsel had no reason to know of the
existence of this memorandum or consequently, that Leake's parole officer had any knowledge of
the case before or during trial. Thus, counsel could not have
acted unreasonably in failing to uncover it or in failing to
investigate the parole officer. Moreover, the memorandum gave no
indication that the parole officer had any independent knowledge
of Fitzgerald's murder. Rather, the memorandum stated merely that
Detective Mack had "confirm[ed]" that Leake had made a statement
that he was acting in self-defense. See Parole Memorandum.
Thus, the memorandum had no particular value to Leake's defense
and Leake cannot show that any failure by counsel to uncover it
resulted in prejudice to him.
2. Failure to Call Brown and Dubose as Defense Witnesses
Leake also claims ineffective assistance based on counsel's
failure to call Brown and Dubose as witnesses in his defense.
First 440 Motion at 3, 6-7, 9-10. But "defense counsel's decision
not to call a particular witness usually falls under the realm of
trial strategy that [courts] are reluctant to disturb." Eze v.
Senkowski, 321 F.3d 110, 129 (2d Cir. 2003); accord United
States v. Best, 219 F.3d 192, 201 (2d Cir. 2000) ("[C]ounsel's
decision as to whether to call specific witnesses even ones
that might offer exculpatory evidence is ordinarily not viewed
as a lapse in professional representation." (internal quotation
marks and citation omitted)), cert. denied, 532 U.S. 1007
(2001); see United States v. Nersesian, 824 F.2d 1294, 1321
(2d Cir.) ("The decision whether to call any witnesses on behalf
of the defendant, and if so which witnesses to call, is a
tactical decision of the sort engaged in by defense attorneys in
almost every trial."), cert. denied, 484 U.S. 958 (1987).
Because such a decision "fall[s] squarely within the ambit of
trial strategy, . . . if reasonably made, [it] will not
constitute a basis for an ineffective assistance claim."
Nersesian, 824 F.2d at 1321. Here, the statements of the witnesses themselves reflect that
Leake's trial counsel and/or investigator interviewed them, had
each of them waiting outside the courtroom during the trial, and
nevertheless decided not to call them to testify. See Brown
Aff. ¶¶ 2, 4, 5; Dubose Aff. ¶¶ 2, 4. Given that counsel's
decision was made after an investigation, the face of the
affidavits alone would cause this Court to afford counsel the
presumption of competence and assume that his decision was based
on a reasonable evaluation of their potential testimony and its
ability to aid or hinder Leake's defense.
Moreover, Insero has supplemented the state court record by
submitting an affirmation as part of the briefing on this
Petition explaining further the nature of his investigation of
Leake's case, which included interviewing and obtaining
statements from both Brown and Dubose. Insero Affirm. at 3.
In Leake's trial, as in any other trial I have ever
been involved in, the decision to call or not to call
certain witnesses depends upon a myriad of factors.
Certain of these factors include: the tenor of the
trial; the demeanor of the prospective witnesses;
and, the potential testimony of the prospective
witnesses. Other factor[s] include: the criminal
records of the prospective witnesses; how the
prospective witnesses will respond to
cross-examination; how the jury will perceive the
prospective witnesses; and, prior statements to the
police and Grand Jury testimony of the prospective
witnesses and how well the prospective witnesses will
remember their previous statements or testimony.
. . . .
In Leake's trial, I considered these factors and only
then did I make the decision not to call Dubose and
Brown. . . . It was a conscious decision on my part
especially in light of my knowledge of the
prosecutor's intention to seek a missing witness
charge if I did not call Brown. In fact, the
prosecutor unsuccessfully sought such a missing
Id. at 3-4; see also Tr. 679, 683-84, 712-16 (colloquy
regarding the prosecutor's request for a missing witness charge,
which was denied). Given that Insero's decision not to call Brown and Dubose as
defense witnesses was made after a thorough investigation, this
Court must afford counsel the presumption of competence and
conclude that the decision was based on a reasonable evaluation
of their potential testimony and its ability to aid or hinder
Leake's defense. Leake has failed to overcome the presumption
that such a strategic decision is "virtually unchallengeable,"
Strickland, 466 U.S. at 690.
3. Failure to Object to Certain Testimony
Leake argues that his counsel was ineffective because he failed
to object to testimony that Edwards was stabbed only twice. First
440 Motion at 3-5. Dr. Koltovich testified that Edwards had two
stab wounds in his back. (Koltovich: Tr. 96, 100). Leake
contends, based on Edwards's testimony (Edwards: Tr. 240-42),
that Edwards was stabbed three times once near his right
shoulder and twice near his spine. First 440 Motion at 3. And he
contends without support that the third wound was inconsistent
with the knife he allegedly wielded. Id. at 3-5.
Defense counsel cross-examined both Dr. Koltovich and Edwards
regarding the number of stab wounds Edwards sustained.
(Koltovich: Tr. 104-07; Edwards: Tr. 260, 286). And in his
closing argument, counsel pointed out the inconsistency in the
testimony and argued that Edwards incurred only two wounds.
(See Tr. 762 ("I submit to you, ladies and gentlemen of the
jury, that he had two wounds pursuant to the testimony of the
medical doctor. You can rest assured that in this age of medical
malpractice suits they were very, very careful so that they
didn't overlook a third stab wound.")). Defense counsel was not
ineffective for accepting the testimony of a doctor and using
that testimony to minimize the injuries incurred by Edwards and
to cast doubt on Edwards's veracity. Nor can counsel be found
ineffective for failing to argue that any third wound was inconsistent with the knife used when
there was no evidence to that effect.
4. Failure to Present a Justification Defense
Leake's final contention, that trial counsel was ineffective in
failing to present a justification defense, is premised on
counsel's failure to call Brown and Dubose as witnesses and to
test the evidence retrieved from Leake's house for his blood.
See First 440 Motion at 7-8. Since both of these "failures"
have been found not to constitute ineffective assistance of
counsel, Leake's claim regarding their effect on his
justification defense should also be denied.
Finally, Leake's generalized allegations that his trial counsel
was unprepared and unacquainted with basic principles of criminal
and constitutional law are conclusory and unsupported by any
For the foregoing reasons, Leake's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from
service of this Report and Recommendation to file any objections.
See also Fed.R.Civ.P. 6(a), (e). Such objections (and any
responses to objections) shall be filed with the Clerk of the
Court, with extra copies sent to the Hon. Sidney H. Stein, 500
Pearl Street, New York, New York 10007, and to the undersigned at
40 Centre Street, New York, New York 10007. Any requests for an
extension of time to file objections must be directed to Judge
Stein. If a party fails to file timely objections, that party
will not be permitted to raise any objections to this Report and Recommendation on appeal. See
Thomas v. Arn, 474 U.S. 140