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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 ...

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