United States District Court, S.D. New York
July 7, 2004.
MICHAEL OWEN HERON, Petitioner,
THOMAS A. COUGHLIN III, Commissioner, DANIEL A. SENKOWSKI, Superintendent, Respondents.
The opinion of the court was delivered by: ALVIN HELLERSTEIN, District Judge
ORDER DENYING HABEAS CORPUS PETITION
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
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
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
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,
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
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
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
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
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
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,
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.
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
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
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,
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
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.
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.
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.