Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, S.D. New York

July 7, 2004.

THOMAS A. COUGHLIN III, Commissioner, DANIEL A. SENKOWSKI, Superintendent, Respondents.

The opinion of the court was delivered by: ALVIN HELLERSTEIN, District Judge


Petitioner, Michael Owen Heron, filed the present petition eleven years ago, seeking habeas corpus relief (28 U.S.C. § 2254) from a sentence of 20 years to life for murder. After numerous collateral attacks in the New York State courts and a first failed habeas corpus petition, this opinion addresses the last, remaining issues of petitioner's second habeas corpus petition, namely, whether the prosecutor knowingly made use of perjured testimony and whether the prosecutor withheld exculpatory material.

I. Background

  The factual and procedural background of this case have been fully discussed in previous opinions, most notably Magistrate Judge Pitman's thorough Report and Recommendation of November 1, 2000. For convenience, I provide a summary of the basic, relevant facts.

  Petitioner was convicted of shooting Lascelle Hines at a Community Center dance in the Bronx, New York on July 1, 1979. Other individuals identified petitioner as having been involved in the shooting. One of those individuals was Leonard Forrest, whom the police arrested on August 16, 1979 for illegal possession of a firearm. Forrest claimed he was carrying the illegal weapon to protect himself against "Gilligan," whom he later identified as petitioner.

  The police arrested petitioner on October 22, 1979 for Hines's murder. Initially, petitioner stated that he was present at the Community Center on the night of the shooting but that he had heard the gunshots from outside and that someone named "Roundtree" had shot Hines. Later, after police confronted petitioner with inconsistencies in his story, and statements by an eyewitness as to Heron's involvement, he admitted to shooting at Hines with a .38 caliber gun at the same time that his associate, Marshall, shot at Hines with a .45 caliber gun, and indicated where he and Marshall had stood and where the body fell.

  On August 7, 1980, after a jury trial, the New York Supreme Court, Bronx County (Schlesinger, J.) sentenced petitioner to an indeterminate term of twenty years to life for murder. At trial, the jury heard evidence consisting of eyewitness testimony, petitioner's statement to the police, and Leonard Forrest's testimony. The eyewitness, Karl Francis, testified that he saw petitioner take a .45 gun from his waist and shoot at Lascelle Hines and then run out of the Community Center. Francis also testified that in later conversation about the shooting, petitioner told him that he "got" Hines. A detective on the case testified as to petitioner's confession. Leonard Forrest testified that during the trial, while in an adjacent cell in the courthouse "pens," petitioner told him that he went to a dance and "opened up" on a man.

  Petitioner appealed his conviction on grounds that his statement was inadmissible because he was arrested without probable cause. On May 12, 1983, the Appellate Division affirmed petitioner's conviction without opinion. People v. Heron, 463 N.Y.S.2d 348 (1st Dep't 1983).*fn1 On August 8, 1983, the New York Court of Appeals denied leave to appeal. People v. Heron, 60 N.Y.2d 616 (N.Y. 1983).

  Over the years, petitioner has filed numerous motions under New York Criminal Procedure Law § 440.10. Of the relevant filings, one motion was made on September 9, 1982, after Karl Francis recanted his trial testimony. Francis denied his presence at the Community Center on the night of the shooting and stated that he testified falsely because two individuals (Bucky Marshall and Gillian)*fn2 threatened him and his family. At a hearing on the matter, Francis stated that he had been coached by Marshall and Gillian and had studied a police diagram of the community center. The prosecutor, William A. Kelly, testified that initially he was concerned that Francis was lying, but he was eventually convinced after grilling Francis about the details. On May 12, 1983, Justice Schlesinger denied this motion, finding that Francis had told detectives of petitioner's statement that he "got" Hines prior to any alleged threats.

  Petitioner filed another section 440 motion on September 29, 1983, claiming ineffective assistance of counsel for failing to call witnesses and to investigate certain defenses. This motion was denied on the merits and procedural grounds on November 15, 1983.

  Petitioner filed his first federal habeas corpus petition on September 10, 1985, raising six claims: (1) the police violated his Fourth Amendment rights in eliciting his statements; (2) the jury in his case was unconstitutionally empaneled; (3) distortions were made in the trial transcript; (4) the trial court erred in redacting his medical record; (5) ineffective assistance of his trial and appellate counsel; and (6) the prosecution knowingly used false evidence regarding petitioner's identity. United States District Judge Robert L. Carter dismissed this petition (86 Civ. 2026 (RLC)) on June 30, 1987, adopting the Report and Recommendation of United States Magistrate Judge Joel Tyler, on the grounds that the Fourth Amendment claim was not cognizable on federal habeas corpus review and that the remaining claims were procedurally barred.

  In February of 1992, petitioner filed another section 440 motion based upon Leonard Forrest's affidavit recanting the testimony he gave at petitioner's trial. Justice Schlesinger denied this motion on November 25, 1992. Petitioner then filed the instant habeas corpus petition on March 23, 1993, asserting seven claims. The case progressed slowly, having been transferred among different district and magistrate judges. Magistrate Judge Henry B. Pitman issued a Report and Recommendation on November 8, 2000, which I adopted by Order of December 6, 2000, dismissing the petition except as to two issues: (1) whether the prosecution knowingly made use of perjured testimony by Leonard Forrest; and (2) whether the prosecution entered into a cooperation agreement with Leonard Forrest and withheld evidence concerning it. I then returned the matter to Judge Pitman to conduct an evidentiary hearing.

  In 1997, Forrest was deported to Jamaica. Judge Pitman appointed counsel and authorized petitioner to conduct a search for him. Despite years of diligent searches in Kingston, Jamaica; Havana, Cuba; and many other locales, petitioner and his appointed counsel have been unable to locate Forrest. Finally, faced with the inevitable conclusion that Forrest will not be found, I ordered the proceeding closed on December 8, 2003. Petitioner asked for a hearing with relation to other information his counsel was able to gather and I granted his motion.

  In preparation for the hearing, petitioner took the deposition of William A. Kelly, then the Assistant District Attorney who prosecuted the case and is now an Acting Justice of the Supreme Court of New York for Rockland County, interviewed Forrest's appointed counsel, Howard Brownstein, Esquire, reviewed the prosecutor, defense and witness case files, investigated additional matters, and presented the distillation to me. Petitioner discovered through these efforts that charges were pending against Forrest that had not been disclosed to petitioner's trial counsel. Petitioner moves to amend his petition to include these allegations in addition to the subornation of perjury claim. Based upon the parties' submissions and their argument at a hearing on June 23, 2004, I grant petitioner leave to amend his petition, and dismiss the petition in its entirety as meritless for failing sufficiently to show that petitioner was deprived of a constitutional right.

  II. The Recantation and Investigative Findings

  Before discussing petitioner's contentions, it will be useful to review both Leonard Forrest's testimony, in context and summary, and William Kelly's deposition.

  A. Leonard Forrest's Testimony and Recantation.

  Petitioner's trial took place in June and July of 1980 in the Bronx County Courthouse. Pursuant to a defense request that Forrest might be called as a witness, Forrest was brought each day from Riker's Island to the Courthouse, and detained in the Courthouse cells, apparently in the adjoining cell to Heron.

  After the prosecution rested, petitioner announced that Forrest would not be called as a witness. The Assistant District Attorney, William A. Kelly, stated that he might wish to call Forrest, and asked either to reopen the direct case or present him in rebuttal. (T. Tr. T. 530-31).*fn3 As an offer of proof, prosecutor Kelly stated that he had recently learned that petitioner and Forrest had "an encounter" while each had been brought to detention cells in connection with court appearances, that "the People had nothing to do with the encounter," or "arranging the cell disposition or anything else." (Id. at 532-33). Forrest, in the presence of his attorney, Howard Brownstein, had told Kelly that petitioner said "that he was going to fuck up the people connected with this case," and that he would have "Marshall (identified as the perpetrator) call that individual[,] Leonard Forrest." (Id. at 533). The court sustained petitioner's objection, ruling that the connection with the case was "quite tenuous." (Id. at 541, 543).

  Defendant then presented a few items of evidence, and rested. Again, the prosecutor sought to present Forrest as a witness, and again petitioner objected. Prosecutor Kelly made another offer of proof, this time of a conversation of July 30, 1980. (Id. at 581-82). He stated that when he left court on July 30, he found Brownstein and Forrest in his office, and Forrest told him that he had again seen petitioner in the lock-up, and that petitioner told him that he "went to the dance and opened up on the guy that got killed, opened up fire." (Id. at 583). Forrest then asked petitioner about the .45, and petitioner answered, "I loaned it to Herman who lent it to Hines. Hines shot Pepper and a guy by the name of Bifield down the barrel." The trial judge overruled petitioner's objection and provided that the prosecution could present this proof if it could show, through Forrest's testimony, that it had learned this information after it had closed its case. It appeared also, from colloquy with the trial judge, that the prosecutor and Forrest's counsel had advised the trial judge of this interview immediately upon its conclusion. (Id. at 603-05). Forrest then testified, outside the presence of the jury. (Tr. T. 588). He confirmed the conversation with Prosecutor Kelly in the presence of Attorney Brownstein on June 30, 1980, stating that petitioner had told him that he "had a .45 and he had loaned it to this dude named Herman," that Herman then told Forrest that he had lent the gun to another, and that the other had lent it to still another in Brooklyn. (Id. at 592). However, when Kelly asked Forrest to tell about being with petitioner at a dance, Forrest answered that petitioner had told him that he was at the dance, but "didn't tell me exactly what happened." (Id. at 593). After more questioning, Forrest was asked again about the dance, he repeated that petitioner said that he was at the dance, but "didn't say what really happened." (Id. at 594-95).

  The trial judge, confining his ruling to when the prosecutor had the conversation with Forrest, held that the conversation occurred on June 30, 1980, after the prosecution had rested, and that the prosecution could call Forrest as a witness. Kelly, however, hesitated to announce that Forrest in fact would be called, in light of Forrest's testimony that petitioner had not told him what had happened. (Id. at 605-06). Over petitioner's objection, Kelly asked for a recess; Brownstein had a private conversation with Forrest, and Prosecutor Kelly announced that he would call Forrest as a witness. (Id.).

  Kelly produced three criminal records pertaining to Forrest, of which one was a pending proceeding, and two were earlier, disposed of, matters. (T. Tr. 606). The disposed cases were for attempted gun possession in January, 1975, and marijuana possession in November 1979. Now, however, based on recent investigations by A.D.A. Saperstein, it appears that four cases were pending in Bronx County against Forrest at the time of his testimony on July 1, 1979. The first pending case was Indictment No. 2064/79 for Forrest's August 16, 1979 arrest for illegal possession of a nine millimeter pistol. The file folder notes Forrest's cooperation in a murder investigation and a recommendation from the ADA for $500 bail. The second pending case was Indictment No. 2437/79 for possession of more than ten pounds of marijuana on November 7, 1979. The same incident produced the third pending case, Indictment No. 2438/79, for possession of a .38 caliber revolver. File notations for these two cases dated June 30, and July 1, 1980 indicate that the ADA was to speak to Kelly and that Forrest was to testify for Bill Kelly. The fourth pending case, Indictment No. 1655/80, concerned Forrest's June 18, 1980 arrest for attempted robbery, burglary, unlawful imprisonment, possession of a loaded firearm and resisting arrest. The file contained a July 9, 1980 notation to speak to Bill Kelly. While the record indicates that defendant was only apprised of one of these cases, the record is less than clear as to exactly which case was disclosed.

  New York State, however, allowed Forrest to plead guilty to Criminal Possession of a Weapon in the Third Degree, a class D felony, in full satisfaction all of the pending indictments. Forrest was sentenced to a term of two to four years as a second felony offender on the one count. If the permissible sentences on all four pending indictments were consecutive, he faced a total of 18 to 36 years.

  In direct examination against petitioner, Forrest admitted to having been convicted of attempted possession of a gun in 1974, and of possession of marijuana later in 1974. He also admitted a current pending charge (possession of a gun and robbery). He testified that he knew petitioner for about a year, that he had spoken to petitioner in the courthouse, that petitioner said that he had lent a .45 pistol to Herman, and that Herman lent it to Glen Hines, that Herman then took the pistol to Brooklyn and gave it to Bifield, and that they had filed the muzzle of the pistol. (T. Tr. 615, 617). Continuing, Forrest said that petitioner told him that they then went to the dance, "saw the men and they opened up." (Id. at 618).

  On cross-examination, Forrest admitted that he had previously given different versions of what Forrest had told him, but that he was confused the first time. (Id. at 620). He admitted that he was currently under indictment for robbery with a deadly weapon, burglary at night, criminal possession of a weapon, and unlawful imprisonment. (Id. at 622-23). He admitted that he had told the District Attorney, in advance, how he would testify, but denied that he had any agreements for lenient treatment, or that he would be given "consideration." (Id. at 623). He admitted, however, that he expected to receive a benefit from testifying. (Id. at 635).

  On redirect, Kelly asked Forrest if anyone made him a promise if he testified in a certain way; Forrest answered no. (T. Tr. 634-35). Kelly continued, asking if Forrest expected some benefit for his testimony, to which Forrest answered yes. (Id.).

  Thus, contemporaneous with the trial, Forrest told three stories. The first, told to Prosecutor Kelly on June 24, 1980 and represented to the court, was petitioner's threat to "fuck up" Forrest, through "Marshall," who was identified as one of the men how shot Lascelle Hines. The second, told by Forrest in testimony on July 1, 1980, outside the presence of the jury, recounted petitioner's admissions about lending a gun, and the movement of the gun from one person to another, and even the petitioner's presence at the dance where the victim was shot and killed, but with the conclusion that petitioner "didn't tell me exactly what happened." (Trial tr. 593). Forrest presented his third story — that petitioner told him he "saw the men and opened up" — in testimony to the jury. (T. Tr. 618). Eleven years later, Forrest by an affidavit of February 11, 1992, recanted the testimony he gave. Because, he claims, his conscience "caus[es him] physical and mental stress," he asks to "withdraw" his false testimony. Forrest states that he knew petitioner, under the name "Gilligan," but knew nothing about the crime that police officers told him they were investigating. Later, after Forrest was arrested and charged with robbery and gun possession, he told the investigating police officers that he would be willing to cooperate with them if "I received a favorable deal on my pending cases." The prosecutor, Forrest states, was willing, and offered "an acceptable plea bargain," but only after Forrest assisted them in convicting petitioner.

  Forrest maintains that the prosecutor arranged to have him placed in a courthouse cell next to petitioner's in order that Forrest might elicit, or over-hear, an admission. Petitioner, however, accused Forrest, according to Forrest's affidavit, of assisting the police, and refused to speak with him. Nevertheless, Forrest maintains, even though petitioner "did not confess anything," Forrest repeated his willingness to help the prosecutor.

  Forrest's affidavit recounts that he first testified that petitioner had not said anything, that he was then threatened by the prosecutor during a recess with maximum sentences, and that he then returned to the courtroom and testified that petitioner told him that he "killed a man at a community center and that he gave the gun used in the murder to another individual by the name of Glen Hines."

  B. Prosecutor Kelly's deposition.

  Petitioner took the deposition of William A. Kelly on March 19, 2004, pursuant to my order. Prosecutor Kelly, a County Judge for Rockland County since 1982 and an Acting Justice of the Supreme Court since 1998, was an Assistant District Attorney for Bronx County between 1969 and November, 1981, and the Deputy Chief of the Trial Bureau at the time of the trial. (Dep'n Tr. 4-5).*fn4 Kelly testified that he handled hundreds of homicide prosecutions as Deputy Chief. Kelly testified from the notes he had made contemporaneously with his trial preparations and based on his recent review of the transcript and case files, as well as conversations with A.D.A. Saperstein. (Id. at 7-8). He recalled two homicide prosecutions of petitioner, one for the dance hall killing, which is the subject of this petition, and the second for another homicide committed later the same night. (Id. at 6, 9-10). Kelly testified that the hand written comments on Forrest's case file wrappers were not his. (Id. at 8, 16).

  Kelly testified that Forrest had told the police that petitioner carried a .45 gun and shot and killed the victim, mistaking him for someone else. (Dep'n Tr. 19). Kelly met Forrest after Forrest and petitioner had their conversation "in the pens," at around the end of the prosecutor's prima facie case. Kelly had produced Forrest pursuant to defense counsel's request, but had little further recollection of the relevant events. He guessed, after reviewing the trial transcript, that Forrest's lawyer brought Forrest to his attention. (Id. at 25). He recorded that Forrest's lawyer, Brownstein, was present for his interview with Forrest.

  Kelly did not recall putting Forrest next to petitioner's cell, and testified, "in the 13 years as a D.A., I never put someone in a cell next to someone else to talk." (Id. at 27). Kelly also denied having made promises or assurances to petitioner, of having made a plea deal with him. He testified that "the only thing that I would ever say to someone is that if you testify truthfully, that could be brought to the attention of the trial judge." (Id. at 28). And it could be brought to the attention of the Assistant District Attorney who was prosecuting a case against the cooperating witness.

  Kelly denied speaking on behalf of Forrest to another judge or to the Plea Board, a committee of senior Assistants who met to standardize plea negotiations, but stated that another Assistant might have spoken about Forrest and have mentioned that he testified in Kelly's case. (Dep'n T. 32).

  Kelly testified that he had no independent recollection of having discussed Forrest's testimony or assistance with any Assistant District Attorney with a view of helping Forrest. (Id. at 43). Presumably, Forrest's lawyer, Brownstein, likely would have brought Forrest's cooperation to the attention of an Assistant who was prosecuting a case against Forrest, and that Assistant could have verified that fact with Kelly. (Id. at 32, 43).

  On cross-examination by respondent's attorney, Kelly denied having told Forrest to make up a story or lie (Id. at 45-46), and repeated that Forrest and Brownstein came to his office, "told me something additional," and that the three of them immediately reported the event to the judge and "put it on the record." (Id. at 48).

  On March 19, 2004, petitioner's counsel spoke to Brownstein, Forrest lawyer during the trial. Brownstein, however, did not recall Forrest or this case.

  III. Discussion

  A. Whether the prosecution knowingly made use of perjured testimony and failed to disclose that a deal had been made between Forrest and the prosecution.

  Petitioner contends that Prosecutor Kelly suborned Forrest's perjury at trial and failed to disclose that Forrest had a deal with the prosecution for favorable treatment in exchange for his testimony. There is insufficient evidence to find either that Kelly suborned perjury or that he had a deal with Forrest in exchange for his testimony.

  The effect of a perjury claim hinges on the degree to which the alleged perjury was material to the verdict and the prosecutor's knowledge of the perjury. If a prosecutor knew or should have known about the perjury, the conviction should be set aside if it is reasonably likely that the perjury could have affected the jury's judgment. U.S. v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991). If the government was unaware of the perjury, the conviction should stand, unless without the perjured testimony the jury could have a reasonable doubt. Id.

  Forrest's testimony was material to the verdict. Respondent argues that overwhelming evidence existed against petitioner without Forrest's testimony, consisting of Francis's testimony, petitioner's confession, and ballistics. However, prosecutor Kelly's efforts to reopen his case so that Forrest could testify, shows that he considered the testimony material. This contemporary impression is far more telling than impressions conceived upon reviewing the record twenty-four years later.

  The real question then, is whether Kelly knew of the alleged perjury. After a complete review of the record, I do not believe that he did, and I have doubt that Forrest's recantation was honest. Kelly denied telling Forrest to lie or to create a story. (Dep'n Tr. 45, 46). Furthermore, several contradictions in Forrest's recantation might be noted. Forrest asserts that, during the recess between the hearing to determine when the prosecution learned of Forrest's statements and Forrest's testimony before the jury, he was taken to the district attorney's office and threatened with maximum sentences if he did not implicate Heron in the murder, and instructed to deny any deal with the prosecutor. The record, however, indicates that Kelly did not communicate with Forrest during the recess. (T. Tr. 610, 617). The record also indicates that it was the prosecutor who on re-direct elicited from Forrest that he hoped to receive favorable treatment for testifying, although Forrest stated that "nobody promised me nothing." (T. Tr. 635). The contradictions raise serious questions about the credibility of Forrest's recantation.

  There is also scant evidence that Kelly had a deal with Forrest. The notations on the file wrappers indicate only that other A.D.A.s were aware, both before and after Forrest testified, that he was cooperating with Kelly, not that Kelly brokered any deal for Forrest. The fact that Forrest received a light sentence considering the volume and seriousness of charges against him is troubling, but petitioner does not show that Kelly promised this lighter treatment to Forrest in exchange for his testimony.

  Thus, I do not find that the government was aware of any alleged perjury. Also, I am unable to find that "but for the perjured testimony, [Heron] would most likely not have been convicted." U.S. v. Wallach, 935 F.2d at 456 (quoting Sanders v. Sullivan, 863 F.2d 218, 226 (2d Cir. 1988)). Forrest's testimony, while material, was not the only, or even the most persuasive evidence against Heron. In finding Heron guilty, the jury could have relied upon the testimony of eyewitness Francis and Heron's confession.*fn5

  Petitioner has therefore failed to establish that the prosecution knowingly made use of perjured testimony or concealed a deal with Forrest. I deny petitioner's claim for habeas corpus relief on this ground.

  B. Whether the prosecution failed to disclose information to petitioner regarding Forrest's pending cases Petitioner shows in his submission that Forrest, at the time he testified, was subject to the four pending felony indictments outlined in detail above. Petitioner claims that only one of the four pending indictments and nothing about cooperation had been disclosed to petitioner. Forrest faced maximum sentences of 18 to 36 years for the four indictments. Yet, after Forrest testified favorably to the prosecution's case against petitioner, the State allowed Forrest to plead guilty to one of the four pending indictments and dismissed the other three; Forrest received a sentence of but two to four years.

  Petitioner argues that the prosecutor committed constitutional error by not disclosing the four pending indictments against Forrest and the prosecutor's offers to Forrest of favorable treatment in exchange for his help. Giglio v. United States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83 (1963); Perkins v. LeFevre, 691 F.2d 616 (2d Cir. 1982). Petitioner further argues that without such information, the cross-examination of Forrest was much less effective.

  Respondent argues, as a threshold matter, that this claim is procedurally barred since petitioner did not allege it in his second habeas corpus petition, and it is untimely and unexhausted. In turn, petitioner seeks leave to amend his petition to include the charge and requests a stay to return to state court with the claim. I grant petitioner leave to amend, but deny the stay request, finding that his claims are without merit.

  Respondent's argument that petitioner's claim is barred by the one-year statute of limitations, 28 U.S.C. § 2244(d), is meritless. Petitioner filed the instant petition in 1993, prior to passage of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 100 Stat. 1214. Prior to AEDPA, no statute of limitations applied to habeas corpus petitions. After AEDPA, the Second Circuit Court of Appeals held that inmates convicted prior to the Act's passage were to be given one year from the Act's effective date to file a timely first petition. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998). Since petitioner had timely filed his second petition before AEDPA's passage, the statute of limitations is not a bar so long as petitioner's amendment relates back to the claims he timely asserted. A habeas corpus petition "may be amended or supplemented as provided in the rules of procedure applicable to civil actions." See 28 U.S.C. § 2242; see also Littlejohn v. Artuz, 271 F.3d 360, 363 (2d Cir. 2001) (Federal Rule of Civil Procedure 15(a) governs habeas corpus amendments); Fama v. Commissioner of Correctional Serv.s, 235 F.3d 804, 816 (2d Cir. 2000) (Rule 15(c) applies to timeliness questions in habeas corpus petitions). Under Federal Rule 15(a) of Civil Procedure, leave to amend is "freely given." And an amendment relates back "when . . . the [newly asserted] claim . . . arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed.R.Civ.Pro. 15(c).

  In examining the record, I find that petitioner's newly asserted claim relates back to those originally asserted in the instant petition. I note, however, that it would also be permissible to assume arguendo that the proposed amendment relates back to petitioner's original claims. See Fama, 235 F.2d at 814-817; Davis v. Artuz, 2003 U.S. Dist. LEXIS 2859, *9-10 (S.D.N.Y. 2003) (collecting district court cases). I further find that petitioner seeks leave to amend in good faith and without prejudice to respondent. See Duran v. United States, 2002 U.S. Dist. LEXIS 8044, *18-19 (S.D.N.Y. 2002).

  In the instant petition, Heron raised three Brady violations. By Order of December 6, 2000, I adopted Judge Pitman's report and recommendation, dismissing the first and second Brady violations, which concerned a witnesses' description of the shooter as being older than petitioner and the identification of individuals who were with a non-testifying eyewitness. I further ordered an evidentiary hearing for the third Brady violation, which concerned the alleged subornation of perjury, the cooperation agreement and evidence withheld in connection with it. These claims provided the state with adequate notice of petitioner's allegation that Forrest's pending cases were not disclosed. In determining whether a deal was made, the state should have considered what charges were pending against Forrest at the time, including an examination of his case files. Had the state thoroughly examined the deal and perjury claims in 1993, it would have produced the file wrappers, and likely would have prevented much of the ensuing delay. Petitioner's claim that the state should have disclosed these pending cases, therefore, is sufficiently similar to the facts of his claim that the prosecution had a deal with Forrest. All of the allegations involve the Forrest's status and communications with the prosecution at the time of Heron's trial. I therefore find that the amendment relates back to petitioner's original claims and grant leave to amend.

  I decline, however, to grant a stay in the case for petitioner to return to state court. Prior to AEDPA, district courts were required to dismiss petitions presenting both exhausted and unexhausted claims. Rose v. Lundy, 455 U.S. 509, 522 (1982). The Second Circuit found that under AEDPA, given its statute of limitation, which also would apply to these new claims, see Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998), district court judges have discretion to dismiss the petition in its entirety or to stay the petition to allow the state courts to consider unexhausted claims. Zarvela v. Artuz, 254 F.3d 374, 379-80 (2d Cir. 2001). A court may also deny "a writ of habeas corpus . . . on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2); Pratt v. Greiner, 306 F.3d 1190, 1197 (2d Cir. 2002). My determination that the claims are meritless, coupled with the long delays this case has experienced, persuade me that it is best to address petitioner's claims on the merits rather than to issue a stay.

  Turning to the merits of petitioner's Brady claim, I find that the additional pending cases were not material to the jury's verdict. To establish a Brady violation, petitioner must show that the government failed to disclose favorable evidence that was material to his case. See United States v. Jackson, 345 F.3d 59, 70 (2d Cir. 2003) (citing In re United States, 267 F.3d 132, 139 (2d Cir. 2001) and Brady v. Maryland, 373 U.S. at 87). The prosecutor "has a duty to learn of all favorable evidence" in a case and to disclose that which rises to a material level of importance. Kyles v. Whitley, 514 U.S. 419, 437 (1995).

  Favorable evidence includes both exculpatory material and items useful in impeaching government witnesses. Jackson, 345 F.3d at 70. Favorable "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Payne, 63 F.3d 1200, 1209 (2d Cir. 1995).

  The test for materiality is not whether the evidence was sufficient; rather, whether the defendant can show "that `the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.'" Jackson, 345 F. at 73-74 (quoting Kyles 514 U.S. at 434-35). Courts are to examine independently the cumulative effect of any suppressed evidence in light of all the evidence presented at trial. Id. Respondent argues that it is unclear whether the pending cases were disclosed to Heron because defense counsel inquired about various charges and argued in summation that Forrest had three cases pending against him. Petitioner argues that Heron's counsel mis-spoke during his summation and that the record shows that only one pending case and the two closed cases were revealed to defendant.

  Of more importance is the actual evidence at trial. On direct examination, Forrest admitted to convictions of attempted gun possession in 1974 and marijuana possession in 1979. (T. Tr. 613). Prosecutor Kelly then twice asked Forrest if he had "a" case pending, elaborating that it was for gun possession and robbery. (Id. at 614). Defense counsel then repeated the impeachment on cross-examination. He inquired whether a case was pending against Forrest in Bronx County involving robbery, burglary, gun possession and unlawful imprisonment. (Id. at 622). Judge Schlesinger then directed Forrest to answer if he knew those were the charges in the case pending against him, to which Forrest replied "yes." (Id. at 622-23). Forrest further admitted that he was arrested for possessing a nine millimeter weapon after having been convicted of marijuana possession. (Id. at 626). After a recess, Forrest, continuing under cross examination, admitted that he was arrested on November 7, 1979 for possession of a gun and ten pounds of marijuana. (Id. at 633-34). In summation, Heron's attorney stated, "As for this other gem that was called today, Mr. Forrest, here's a man who's got three pending cases. . . ." (Id. at 686).

  Thus, Forrest admitted to convictions for the 1975 attempted gun possession and the November, 1979 marijuana possession. (T. Tr. 613). He also admitted to the June 18, 1980 arrest for attempted robbery, burglary, unlawful imprisonment, possession of a loaded firearm and resisting arrest, Indictment No. 1655/80. (T. Tr. 614, 622-23), and to the November 7, 1979 possession of marijuana and a .38 caliber gun, Indictment No.s 2437/79 and 2438/79. (T. Tr. 633-34). The only indicted conducted that was not before the jury was the August 16, 1979 arrest for illegal possession of a nine millimeter pistol, Indictment No. 2064/79. And arguably, this refers to the 9 millimeter Forrest admitted being arrested for possessing after the marijuana possession, although it is not entirely clear. (Id. at 626).

  It is also worth noting, however, that, in discussions outside of the jury's presence regarding defense counsel's request to examine the files of Forrest's cases, Judge Schlesinger referred to Forrest's "pending matters." (T. Tr. 607). Defense counsel corrected him, specifing that "No, Judge. There is only one pending matter." (Id.). In spite of his burden to discover and disclose items favorable to the defense, prosecutor Kelly did not correct defense counsel that, in fact, four cases were pending against Forrest. (Id.). Justice Schlesinger permitted defense counsel to review two files, identified as docket numbers 427297 of 1975, 931740 of 1979, apparently the two closed cases. (T. Tr. 608).

  Again, 24 years after the event, the discrepancies in the record are unsettling. The record shows that only one, not four, pending indictments against Forrest were produced by the prosecutor. Yet, the record also suggests that defense counsel knew, and questioned Forrest, about the various offenses raised in the indictments. Defense counsel also impeached Forrest for lack of consistency in his account (albeit somewhat ineffectively).*fn6 The jury was aware the Forrest had open offenses against him, whether in one or more than one indictment, and was inconsistent in his accounts. I am unable to say that it would have made a difference if the prosecutor had properly discharged his Brady obligations by producing all four indictments, and making it clear in the record that he was doing so. See Jackson, 345 F.3d 73-74. Therefore, I deny petitioner's Brady claim as meritless.

  Petitioner further contends that the prosecution's failure to correct the record that Forrest had more than one case pending caused defense counsel to present the charges less than effectively. Where a prosecutor knew or should have known about false statements, the conviction should be set aside if it is reasonably likely that the perjury could have affected the jury's judgment. U.S. v. Wallach, 935 F.2d 445, 456 (2d Cir. 1991).

  As discussed above, prosecutor Kelly should have known about the pending cases and, as an officer of the court, had a duty to correct inaccuracies in the record. While I am troubled by these allegations, particularly in examining the totality of issues raised in this case, I do not believe that but for the prosecutor's failure to correct the record, the result would have been different. See Wallach, 456-459. Disclosure and a more thorough and effective treatment of the information that was known would only have made it clear to the jury that Forrest had four rather than one, or three, cases outstanding. This information, however, would have been cumulative. The jury could glean from the testimony elicited that Forrest had committed many legal infractions and that not all of these had been resolved when he testified.

  IV. Conclusion

  Thus, for the reasons stated above, I deny the petition in its entirety. Petitioner has, however, made a sufficient showing of the denial of a constitutional right for me to issue a certificate of probable cause. See Tankleff v. Senkowski, 135 F.3d 235, 241-42 (2d Cir. 1998) (finding that ADEPA § 2253(c) does not apply to petitions filed prior to its passage). The failures of proper productions by the prosecutor, Forrest's lenient sentence in light of his assertion that he had an undisclosed deal in exchange for testifying, and the unpersuasive use by defense counsel of the impeaching materials are troubling, and while I do not believe they rise to the applicable standards for a new trial, the issues are worthy of review by the Court of Appeals.

  So Ordered.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.