United States District Court, W.D. New York
May 3, 2005.
MIGUEL TIRADO, Petitioner,
DANIEL A. SENKOWSKI, Superintendent, Respondent.
The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge
DECISION AND ORDER
Miguel Tirado ("Tirado") filed this pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging
his conviction in Monroe County Court on one count of second
degree murder. The parties have consented to disposition of this
matter by the undersigned pursuant to 28 U.S.C. § 636(b).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Michael Nelson ("Nelson" or "the victim") was fatally shot in
the head at about 1:00 a.m. on July 29, 1993, while he was
standing outside a mini-mart at the corner of Seventh and Bay
Streets in the City of Rochester. The two bullets recovered from
Nelson's body were found to have come from the same
nine-millimeter gun; however, the murder weapon never was
recovered. At the time of the shooting, no arrests were made.
Months after the murder, Robert Black ("Black"), a convicted
drug dealer serving a six to twelve-year term of imprisonment,
informed the City of Rochester Police Department that Tirado had
killed Nelson at the behest of Roberto Concepcion ("Concepcion").
Since Black already was serving a prison term, the prosecutor informed him that there was
not much that could be done in exchange for his cooperation.
Black was told that, if he cooperated, the prosecutor would
inform the parole board of this fact. The prosecutor also
promised Black that if Black filed a collateral application to
have his sentence modified, the motion court would be informed of
the cooperation he provided. Finally, Black and his sister,
Ranisha Mackey ("Mackey"), who also testified for the
prosecution, received $800 from the $5,000-award posted by
Nelson's father through "CrimeStoppers." Defense counsel was made
aware of these facts during the pre-trial phase of the
The defendants' severance motions were denied, and Concepion
and Tirado were tried jointly in Monroe County Court (Connell,
J.). Their first trial ended in a mistrial as a result of juror
misconduct. Their second trial commenced on February 7, 1995,
before Judge Connell.
At trial, Black testified for the prosecution that he had been
driving around with "Seville" (Concepcion), "Base" (Tirado),
"Mike" (Miguel Rivera) and "Light" (Rodney Taylor)*fn1 on
the night of the shooting. They saw a black male wearing a white
t-shirt and red pants (i.e., Nelson) standing in front of the
mini-mart at Bay and Seventh Streets. Black testified that
Concepcion commented, "There go [sic] the guy that is going to
kill him [sic]." Black's subsequent testimony clarified that
Concepcion meant that he believed Nelson was going to kill him.
T.764-66.*fn2 Concepcion, Tirado and the others returned to
Concepcion's house, where they found Mackey and several of their
Black's sister, Ranisha Mackey, testified for the prosecution
that she was at Concepcion's house on the night of July 29, 1993, along with "Base" (i.e.,
Tirado); her brother; "Mike"; and "Light". Mackey testified that
Concepcion gave her money to go to the mini-mart to buy a bottle
of soda and see who was standing on the corner. When Mackey
returned, she told Concepion that she saw a "couple of boys" and
described their clothing as "red and black"; at trial, however,
she could not recall who was wearing what. Shortly thereafter,
Tirado left the house. Mackey testified that Tirado was wearing
all black that night: a black hooded sweatshirt, black pants,
black boots, and a black coat.
Moments later, Mackey heard "ten or eleven" gunshots coming
from the direction of the mini-mart. Soon after that, Tirado
returned to Concepion's house carrying a black gun. He went down
to the basement and changed his clothes. According to Mackey,
Tirado informed Concepion that "he got him." Concepion allegedly
told Tirado, "Good job" and commented, "It's one less nigger we
got to worry about." T.383.
Black similarly testified that, after Mackey returned from the
store and informed Concepcion that a man in a white t-shirt and
red pants was standing in front of the mini-mart, Tirado left the
house wearing black clothes. Tirado also was carrying a black
automatic gun which Black had seen him load. According to Black,
as Tirado was leaving, Concepcion told Tirado to "[g]et him all
in the head," and commented, "Better him than me." T.773. When
Tirado returned, Concepcion asked him if he "got him." Black
heard Tirado reply affirmatively and saw him change his clothes
and put the gun away. Everyone continued watching television.
Mackey testified that she knew her brother was attempting to
obtain a reduction in his sentence by cooperating with the police
regarding the Nelson shooting. Mackey, who was a very reluctant
witness, stated that she was upset with her brother for getting
her involved in the Tirado/Concepion trial. Defense counsel attempted to impeach her
credibility using some of the transcripts of the recorded phone
conversations among Mackey, her brother, and the police officers
who facilitated Mackey's and Black's testimony. However, Mackey
consistently denied that her brother told her what to say and
maintained that she did not tailor her testimony in order to
corroborate his story.
Three eyewitnesses to the murder testified at trial. Vanessa
Peterson ("Peterson") testified for the prosecution that she saw
Nelson standing on the corner of Bay and Seventh Streets just
prior to the shooting. Peterson saw a man dressed in dark clothes
walk up to the victim and begin shooting at him with a
dark-colored gun. Peterson was unable to identify the shooter,
but recalled that he fired the gun at the victim multiple times
and then ran back the way he came. See T.570-77. Peterson
thought that the shooter was wearing some type of face mask.
Marcia Bernard ("Bernard"), Nelson's cousin, testified for the
defense that she lived right across the street from the mini-mart
and had been talking to Nelson, from her second-story window
prior to the shooting. After they were done talking, Bernard saw
Nelson, who was dressed in a white shirt and red pants, talking
to a man wearing a baseball cap. Bernard described the man's race
as "mixed," stating that he looked like "black and white."
Bernard overheard Nelson say, "What you going [sic] to do,
shoot me?" At that point, the man in the baseball cap pulled out
a gun and shot Nelson.
Emma Glen ("Glen") testified for the defense that on the night
of July 29, 1993, she heard "a lot" of "rapid" shots fired at
about 1 a.m. Glen saw two men (the shooter and someone else)
standing over the victim who was lying on the ground. According
to Glen, the shooter was black and was wearing "dark blue"
clothing and a baseball cap; the other man was black also and had on a red sweatsuit. Thinking that it was her son who had been
shot, Glen started screaming at the two men, who ran down the
street and out of view. When Glen originally spoke to the police
on the night of the incident, she stated that the shooter had
been wearing a blue and white jacket and a baseball cap.
During the last week of trial, an issue arose with respect to
another potential defense eyewitness, Sandra Barron ("Barron"),
who happened to be Glen's daughter. Barron unexpectedly was
rushed to the hospital to receive treatment for blood clots and
was unable to appear as scheduled. The trial court granted two
adjournments, but the witness was never able to appear in court
to testify. The court denied any further adjournments, noting
that after almost a week of defense counsel being aware that
Barron had health problems, the court had received no
verification from the hospital or her doctor as to her condition
or her expected date of availability. The judge also noted that
Barron apparently had indicated an unwillingness to speak to
anyone other than the defense. Finally, the court determined
that, after hearing an offer of proof from defense counsel,
Barron's testimony would be cumulative to that provided by Glen.
A significant Brady*fn3 issue developed prior Black's
cross-examination when defense counsel brought to the court's
attention that he had heard that Black was a prosecution witness
in another, unrelated homicide case handled by a different
district attorney. Concerned about a possible Brady violation,
Judge Connell directed the assistant district attorney, Thomas
Brilbeck ("ADA Brilbeck") to put on the record what Black was
doing for whom. ADA Brilbeck admitted that he learned in late
1993 or early 1994 that Black was testifying for the People in
another case, but he did not inform the defense. The court adjourned the trial
and ordered ADA Brilbeck to provide defense counsel with all of
the information he had concerning Black's cooperation in the
other case and the consideration which he expected to receive.
Assistant District Attorney Vincent Rizzo ("ADA Rizzo"), the
prosecutor in the other murder case in which Black was going to
testify for the People, appeared before Judge Connell and
informed the court that the only thing he promised Black in
August 1994 was that he would inform the motion court of Black's
cooperation in the event that Black made an application to have
his sentence modified from six to twelve years to four and
one-half to nine years. ADA Rizzo noted that there was not much
in the way of inducements that could be offered since Black was a
sentenced prisoner. ADA Rizzo testified that Black expressed an
interest in obtaining a stay of his sentence so that he could be
released while his appeal was pending. ADA Rizzo informed the
court that, since he did not believe that this was a good idea,
he was noncommittal regarding this request and told Black that it
was something his defense counsel should explore.
At the court's request, ADA Rizzo turned over his entire trial
file in the other court for an in camera inspection. After
reviewing the file, the court provided any documents that
possibly could be considered Brady material to the defense.
However, the court denied defense counsels' motions for a lengthy
continuance, noting that the information provided by the People
concerning the other murder trial did not contain any new
information with respect to additional promises made to Black in
return for his cooperation. The court did order Mackey to be
returned from New York City should the defense attorneys wish to
cross-examine her regarding any potential bias, that is, whether
she testified in order to obtain some kind of benefit for her
brother. Although Mackey was made available as a witness, neither
defense counsel chose to question her further. Black was thoroughly cross-examined by defense counsel
concerning his conversations with the district attorney's office
and the consideration he received for his cooperation. Black
maintained that he "ain't got no [sic] deal going" and that he
had been given no promises of a reduced sentence. According to
Black, all he got in return for his cooperation was that the
police promised to appear at his parole board hearing. Black
acknowledged that some money was paid into the jail commissary
and that he had discussed receiving some of the reward money from
CrimeStoppers, but he insisted that his motivation was not the
Finally, defense counsel called ADA Brilbeck, the prosecutor,
and questioned him about the circumstances of Black's
cooperation. ADA Brilbeck's testimony, in sum and substance,
confirmed what he and ADA Rizzo earlier had told the court and
defense counsel about how Black came to cooperate with the
The jury returned a verdict convicting Tirado and Concepcion of
second degree murder as charged in the indictment. Tirado was
sentenced to 25 years to life imprisonment.
On direct appeal, the Appellate Division, Fourth Department, of
New York State Supreme Court unanimously affirmed his conviction
on June 18, 1999. People v. Tirado, 262 A.D.2d 1062 (4th
Dept. 1999) (adopting memorandum decision and order as stated in
People v. Concepcion, 262 A.D.2d 1058 (4th Dept. 1999)).
The New York Court of Appeals denied leave to appeal on November
30, 1999. People v. Tirado, 94 N.Y.2d 830 (1999). Tirado filed
three collateral motions to vacate the judgment pursuant to New
York Criminal Procedure Law § 440.10, all of which were denied.
This habeas petition followed in which Tirado raises numerous
grounds for relief. For the reasons set forth below, the petition
is denied. DISCUSSION
Exhaustion and Procedural Default
Respondent makes several arguments purporting to assert that a
number of Tirado's claims are unexhausted, procedurally
defaulted, or both. In the main, however, respondent's arguments
either are plainly wrong or incomprehensible. For instance,
respondent asserts that certain claims are unexhausted but then
offers to waive the non-exhaustion defense should the Court find
the claims to be without merit. This is not how one properly
asserts an affirmative defense; respondent cannot "have its cake
and eat it, too." The foregoing is but one example of the
fundamental misapprehension of habeas corpus jurisprudence under
which respondent labors. Unfortunately, respondent's brief
provides the court with no meaningful assistance as to whether
Tirado's claims are unexhausted or procedurally defaulted. In any
event, after its review of the record, the Court finds that
resolution of the issues of procedural default and exhaustion
would be time-consuming and complex, while Tirado's habeas claims
may more readily be disposed of on substantive grounds.
Therefore, in the interest of judicial economy, the Court will
proceed to consider the merits of Tirado's claims.
Merits of the Petition
Ground 1: Failure to order adjournment of trial
Tirado claims that the trial court erred violated his due
process right to present evidence when it failed to grant an
additional continuance in order to allow witness Sandra Barron to
testify at trial and failed to make alternative arrangements to
procure her testimony.
The Constitution guarantees a criminal defendant has the right
"to have compulsory process for obtaining witnesses in his
favor." U.S. CONST. amend. VI. The right to compulsory process is violated when the prosecution "arbitrarily denies a
defendant the opportunity to put on the stand a witness whose
testimony would be relevant and material to his defense."
Singleton v. Lefkowitz, 583 F.2d 618 (2d Cir. 1978), cert.
denied sub nom., Abrams v. Singleton, 440 U.S. 929 (1979)
(citing Washington v. Texas, 388 U.S. 14, 23 (1967)). This
guarantee encompasses the right to compel the attendance of
witnesses favorable to one's defense, but it is not without
limitations. Id. (citing United States v. Taylor,
562 F.2d 1345, 1361-62 (2d Cir.), cert. denied, 434 U.S. 853 (1977)).
Absent some showing of what relevant, favorable, non-cumulative
evidence the witness would provide if compelled to testify, it is
not improper to deny a continuance. Id. (citing Taylor,
562 F.2d at 1362).
As the offer of proof, defense counsel stated that he expected
Barron to testify that, at the time of the shooting, she was at
home with her mother, Emma Glen; that she heard gunshots coming
from outside near the mini-mart; and that she went to a second
floor window to see what had happened. According to defense
counsel, Barron witnessed the shooting, which she believed was
done by two black males. Barron was expected to testify that she
then ran outside, approached the black male who had the gun and
asked, "Is that my brother?" Defense counsel indicated that
Barron recalled that the shooter was wearing blue pants, a blue
and white jacket, and a blue baseball cap. See T. 1286-88.
After hearing the offer of proof, the court determined that,
although it seemed as though Barron observed the shooting from a
different vantage point than her mother, "the substance of what
she would be testifying [about] would be the same as Miss Glen,
or similar in nature to Miss Glen." T. 1298. As discussed above,
Glen testified that the shooting was done by two black males, and
that the gunman was wearing a blue and white jacket and a dark
blue baseball cap. Thus, Tirado cannot establish that Barron would have provided
non-cumulative evidence so as to warrant a further adjournment of
the trial proceedings. On the facts before me, I cannot find that
the trial court abused its discretion in refusing defense
counsel's request for a further adjournment.
Grounds 2 and 5: Brady violation
Tirado claims that the prosecutor failed to disclose impeaching
evidence regarding Robert Black, one of the key witnesses for the
People. Tirado avers that prior to trial, the prosecutor
represented that the consideration given to Black in return for
his testimony was only that the police would notify the parole
board of Black's cooperation. According to Tirado, "it was
subsequently learned that Mr. Black had been led to believe he
would receive a sentence reduction on his current term by way of
[a] C.P.L. § 440.10 motion and that the [P]eople would even
consider having him released via the granting of a stay" pending
his appeal. See Amended Petition at 8 (Docket #22). Tirado also
complains that the prosecutor failed to disclose that he had
promised witnesses Black and Mackey compensation for their
testimony at trial.
To the extent that the prosecution knows of material evidence
favorable to a criminal defendant, it has a due process
obligation to disclose that evidence. See, e.g., Kyles v.
Whitley, 514 U.S. 419, 431 (1995); Brady, 373 U.S. at 87.
Brady matter includes not only exculpatory evidence going to
the heart of the defendant's guilt or innocence, but also
impeachment evidence having the potential to undermine the
credibility of a significant prosecution witness. See, e.g.,
Giglio v. United States, 405 U.S. 150, 154-55 (1972); Napue v.
Illinois, 360 U.S. 264, 269 (1959) (A "jury's estimate of the
truthfulness and reliability of a given witness may well be
determinative of guilt or innocence."). Clearly, as the trial court determined, the facts surrounding
Black's cooperation with the prosecution constituted potentially
impeaching Brady material. However, Tirado's characterization
of the inducements that Black received is inaccurate. Contrary to
Tirado's assertions, ADA Rizzo expressly testified that he made
no commitments to Black regarding the possibility of obtaining a
stay. In fact, Black himself did not testify that he received any
express or implied assurances that the prosecution would consider
having him released by means of a stay. Furthermore, in light of
both prosecutors' testimony and that of Black himself, there is
no evidence that he was told that he was entitled to a sentence
reduction simply because he cooperated. Rather, it appears from
the record that Black was told that should he file a motion to
have his sentence modified, the court hearing the application
would be informed of his cooperation and could take that into
account should the court be so inclined. Finally, defense counsel
was apprised, prior to trial, of the fact that the police
officers who coordinated Black's and Mackey's testimony were
assisting them in obtaining the reward money posted by the
victim's father through CrimeStoppers; defense counsel was
provided with the tapes and transcripts of the telephone
conversations among Black, Mackey and the police. Indeed, defense
counsel used the transcripts extensively on cross-examination to
call into question both Black's and Mackey's character and
motivations and that of the police officers.
In sum, the circumstances of Black's cooperation were fully
aired at trial. There was no withholding since defense counsel
received the Brady material in time to make effective use of it
at trial. Indeed, both defense attorneys subjected Black to
withering cross-examination. Absent a withholding of impeachment
material, I cannot find that there has been a Brady violation
in this case. Ground 4: Insufficiency of the evidence
Tirado contends that there was insufficient evidence to prove
that he was guilty of murder in the second degree beyond a
reasonable doubt. Tirado asserts that none of the three
eyewitnesses Peterson, Bernard, and Glen could identify
Tirado as the perpetrator. Moreover, Tirado states, the
eyewitnesses' recollection "are direct contradiction to the
testimony of Robert Black and Rahnisha Mackey."
A habeas petitioner "challenging the sufficiency of the
evidence bears a very heavy burden." Einaugler v. Supreme
Court, 109 F.3d 836, 840 (2d Cir. 1997) (quotation marks
omitted). The reviewing court must uphold a state criminal
conviction if, "after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt." Jackson v. Virginia, 443 U.S. at 319
(emphasis in original). Tirado must "rebut . . . the presumption
that all factual determinations made by the state court were
correct." Ponnapula v. Spitzer, 297 F.3d 172, 176 (2d Cir.
2002); see also 28 U.S.C. § 2254(e)(1). In making this
assessment, a court may not "disturb the jury's findings with
respect to the witnesses' credibility." United States v. Roman,
870 F.2d 65, 71 (2d Cir. 1989). Thus, under this rigorous
standard, a Federal habeas court "`faced with a record of
historical facts that supports conflicting inferences must
presume even if it does not affirmatively appear in the record
that the trier of fact resolved any such conflicts in favor of
the prosecution, and must defer to that resolution.'" Wheel v.
Robinson, 34 F.3d 60, 66 (2d Cir. 1994) (quoting Jackson,
443 U.S. at 326).
Black and Mackey testified to admissions allegedly made by
Tirado which implicated him in the crime; neither individual,
however, witnessed the actual shooting. Glen, a defense witness, testified that the shooter was a black man; Tirado is of
Hispanic descent. Bernard, also a defense witness, described the
shooter's race as "mixed," stating that he looked like "black and
white." Peterson, who testified for the prosecution, did not give
a description of the shooter's race. None of the eyewitnesses
could positively identify the perpetrator.
As is so often the case, the verdict in the instant matter came
down to issues of credibility. Here, the jury chose to credit the
prosecution witnesses' testimony and convict Tirado despite the
inconsistencies between their stories and the possibility that
they were biased. The jury is exclusively responsible for
determining the credibility of a witness, and a habeas court may
not revisit the fact-finder's credibility determinations.
Marshall v. Lonberger, 459 U.S. 422, 432-35 (1983); United
States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993); Simpson v.
Portuondo, 2001 WL 830946, at *8 (S.D.N.Y. July 12, 2001). As a
reviewing court, I may not "`reassess the fact specific
credibility judgments by juries or . . . weigh conflicting
testimony.'" Vera v. Hanslmaier, 928 F. Supp. 278, 284
(S.D.N.Y. 1996) (quoting Anderson v. Senkowski, 1992 WL 225576,
at *3 (E.D.N.Y. Sept. 3, 1992)). On collateral review, I "`must
presume that the jury resolved any questions of credibility in
favor of the prosecution.'" Id.
Viewing the evidence and drawing all inferences in favor of the
prosecution, a rational trier of fact could have found that
Tirado killed Nelson, execution-style, upon the directive of
Concepcion. The jury's decision primarily was a matter of
choosing whether to believe Tirado's version of events or to
believe the version offered by the prosecution. The jury chose to
believe the prosecution's witnesses, and I cannot say, on all the
evidence presented, that no rational jury could have found guilt
beyond a reasonable doubt. See Gruttola v. Hammock,
639 F.2d 922, 928 (2d Cir. 1981); see also Carromero v. Strack, 1998 WL
849321, at *5 (S.D.N.Y. Nov. 19, 1998) (evidence sufficient where jury credited prosecution witnesses'
testimony "despite some inconsistencies between their trial
testimony and prior statements to the police and to the grand
jury"). This claim provides no basis for habeas relief.
Ground 3: Failure to give circumstantial evidence charge
Tirado contends that, notwithstanding his admissions to the
police, there was no direct evidence of his culpability for the
killing of Nelson, and therefore the trial court should have
issued a circumstantial evidence charge. Tirado concedes that
admissions can constitute direct evidence but argues that in this
case, his statements do not connect him to the shooting unless
inferences are drawn, making the admissions circumstantial in
nature. The Fourth Department held the trial court properly
refused to give the requested "moral certainty" circumstantial
evidence charge because there was direct evidence against Tirado,
namely, his admissions that were overheard by Black and Mackey.
Under New York law, a circumstantial evidence jury charge is
only required, at the defendant's request, when the evidence
against a defendant consists solely of circumstantial evidence.
See, e.g., People v. Daddona, 81 N.Y.2d 990, 992 (1993)
("Whenever a case relies wholly on circumstantial evidence to
establish all elements of the charge, the jury should be
instructed, in substance, that the evidence must establish guilt
to a moral certainty. However, where a charge is supported with
both circumstantial and direct evidence, the court need not so
charge the jury.") (citations omitted); People v. Roldan,
211 A.D.2d 366, 370 (1st Dept. 1995) (holding that where direct
evidence of conduct is presented, wholly circumstantial evidence
of intent does not "trigger the necessity for a circumstantial
evidence charge"), aff'd, 88 N.Y.2d 826 (1996). On Federal habeas review, Tirado must shoulder a difficult
burden with respect to his claim that the trial court erred in
failing to give a circumstantial evidence charge. First of all,
it appears that under State law, Tirado was not entitled to a
circumstantial evidence charge because the evidence against him
was not wholly circumstantial: As the trial court found, the
admissions by Tirado that were described by Black and Mackey were
direct evidence of guilt. For instance, Black had been present
with Tirado and Concepcion when Nelson was targeted to be shot;
he later overheard Concepcion tell Tirado, who was dressed in
black and carrying a loaded gun, to "Get him . . . get him all in
the head." When Tirado returned, he stated that he "got him."
See, e.g., Avincola v. Stinson, 60 F. Supp.2d 133, 149
(S.D.N.Y. 1999) (finding that petitioner's admission to a
co-defendant that he had just killed the victim constituted
direct evidence of the murder; therefore, the case against
petitioner was not "wholly circumstantial," and no circumstantial
evidence jury charge was necessary); Trail v. Kelly, 1994 WL
389059, at *1 (S.D.N.Y. July 25, 2994) (where the "circumstantial
evidence" consisted of testimony by witness that, immediately
following the fatal gun shot, she saw petitioner holding the gun
that fired the shot, and there was no one else present, the
appellate court's conclusion that this constituted direct
evidence was not unreasonable); People v. Guidice,
83 N.Y.2d 630, 636 (1994) (no circumstantial evidence charge necessary
based on defendant's statements relevant to his guilt; "[a]
defendant's statement is considered direct evidence if it
constitutes `a relevant admission of guilt'"); People v. Reed,
247 A.D.2d 900, 668 N.Y.S.2d 858, 859 (4th Dept. 1998)
(finding no entitlement to circumstantial evidence charge where
defendant's admission constituted direct evidence of crime
Furthermore, the Supreme Court has noted that "[a]n omission,
or an incomplete instruction, is less likely to be prejudicial than a misstatement
of the law." Henderson v. Kibbe, 431 U.S. 145, 155 (1977). Even
if the failure to give a circumstantial evidence charge was
erroneous, petition must establish that the omission "`so infected
the entire trial that the resulting conviction violate[d] due
process.'" Blazic v. Henderson, 900 F.2d 534, 543 (2d Cir.
1990) (quoting Cupp v. Naughton, 414 U.S. 141, 147 (1973)
(alteration in original). Such is not the case here. Accordingly,
Tirado's claims for relief on the ground that the jury charge was
erroneous must be denied.
Ground 6: Failure to maintain chain of custody
Tirado argues that the prosecution failed to establish a proper
chain of custody for the two plastic cups containing the
projectiles removed from the victim's body. According to Tirado,
Investigator Stenclik testified that he received the evidence
from Investigator Campbell, who did not testify at trial.
Investigator Campbell's failure to testify, Tirado contends,
establishes that there was a break in the chain of custody.
Tirado's chain of custody argument presents a question of State
evidentiary law that generally is not amenable to habeas review.
See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Under New
York law, "failure to establish a chain of custody may be excused
`where the circumstances provide reasonable assurances of the
identity and unchanged condition' of the evidence." People v.
Julian, 41 N.Y.2d 340 (1977) (quoting Amaro v. City of New
York, 40 N.Y.2d 30 (1976)). Furthermore, both Federal and State
law clearly hold that a defect in the chain of custody goes to
the weight of the evidence, not its admissibility. Cassell v.
Ricks, 2001 WL 1010977, at *7 (S.D.N.Y. July 21, 2000) (citing,
e.g., United States v. Hon, 904 F.2d 803, 810 (2d Cir. 1990)
("Once the exhibits were admitted into evidence, the alleged
defects in the government's chain of custody proof were for the jury to evaluate
in its consideration of the weight to be given to the
Even if Tirado's claim were cognizable on habeas review, it is
without merit. The issue of whether the bullets in the plastic
cups introduced at trial and analyzed as having been recovered
from the victim's body was for the jury to decide based upon all
the evidence before it. See, e.g., Howard v. Keane, 1991 WL
352488, at *2 (E.D.N.Y. Dec. 9, 1991) (finding chain of custody
issue not cognizable on habeas review and without merit; whether
the packets introduced at petitioner's trial and analyzed as
cocaine were the packets seized was a jury question). This Court
finds that a reasonable jury could have concluded that the
prosecution established a complete chain of custody for the
bullets, or, at the very least, could have been reasonably
assured of the identity and unchanged condition of them.
Therefore, this claim provides no basis for habeas relief.
Ground 7: Prosecutorial misconduct on summation
Tirado asserts that the prosecutor "intentionally allowed
Robert Black and Assistant District Attorney Rizzo to perjure
themselves on the witness stand for the purpose of covering up
the fact that Black was going to obtain a reduction of sentence
for his cooperation with the prosecutor in this case and in
another murder trial." Amended Petition at 8a (Docket #22).
Tirado further asserts that the prosecutor bolstered Black's and
ADA Rizzo's testimony by informing the jury that Black was not
receiving any inducements for his testimony.
Apart for Tirado's own personal belief that Black and ADA Rizzo
perjured themselves, there is no competent proof that these
witnesses actually committed perjury. As to Tirado's claim that
the prosecutor improperly bolstered Black's and ADA Rizzo's
testimony, the record reveals that the prosecutor made the following comments concerning the
inducements Black received for his cooperation:
He [Black] thought he might be able to work something
out, but as you heard as a sentenced prisoner his
options were limited. He's doing a six to twelve year
sentence. You heard my testimony, you heard Mr.
Rizzo's testimony about what could[,] if anything[,]
be done for him, and the answer is not much of
anything. Doesn't sound like a deal to me. The word
deal is being thrown around like somebody's going
shopping for a car. There were no deals here. If
there was it's one of the worst deals anybody's ever
heard of. Because he ain't [sic] getting nothing.
. . .
I submit that the possibility of a letter to the
parole department, I submit that the possibility of
reward money out there, I submit the possibility if
his prior conviction were ever opened up and he were
to be resentenced to another sentence of four and a
half to nine, speculation at best, but already, if
that's out there, these are not motives to fabricate
they're motives really to come forward[.]
T.810, T. 1430-31.
The prosecutor merely was stating his view of the very limited
inducements offered to Black; he did not misstate the evidence
regarding what Black received or reasonably could have expected
to receive in exchange for his cooperation. Although prosecutors
are directed to refrain from vouching for their witnesses'
credibility, here the prosecutor prefaced his comments with "I
submit." Furthermore, the judge carefully instructed the jury
that the statements of the attorneys on summation did not
constitute evidence. On record before me, I can find no
constitutional violation in the prosecutor's remarks. This claim
accordingly provides no basis for habeas relief.
Ground 9: Failure to give jury instruction regarding
accomplice status of Black and Mackey
Tirado claims that the trial court failed to instruct the jury
that it was required to decide whether Black and Mackey were
accomplices to the Nelson murder. Contrary to Tirado's assertion, the trial court gave a thorough and correct jury
charge regarding the definition of an "accomplice" and noted that
the law views accomplice testimony with suspicion, especially
when the accomplice has been promised some consideration in
exchange for his or her testimony.
Thus, there is no factual or legal basis for this claim.
Grounds 10 and 12: Newly discovered evidence
On or about June 26, 2001, Tirado and Concepcion submitted a
joint motion to vacate the judgment against them pursuant to
C.P.L. § 440.10 on the basis that prosecution witness Robert
Black perjured himself at their trial. The defendants submitted
two affidavits by Black in which Black allegedly recanted his
testimony. The first affidavit, dated June 23, 1997, only
mentions Concepcion. In the second affidavit (the Court's copy of
which is incomplete and missing a signature page),*fn4 Black
allegedly states that he was "threatened by law enforcement;
coerced to testify by law enforcement; given promises of a
re-sentence on a prior felony narcotics conviction by law
enforcement and prosecution; and given promises by law
enforcement of a payment of $6,500.00 to testify. [sic] All for
the purpose of fabricating a story against defendant Roberto
Concepcion." The affidavit details, line by line, all of the
testimony that allegedly was fabricated.
When the prosecution responded to the C.P.L. § 440.10 motion,
it noted that this "newly discovered evidence" was not presented
to the court until 2001 four years after Black allgedly
recanted his testimony in 1997. Furthermore, Black's recantation
came after he had received a modification to his prison sentence
following a successful C.P.L. § 440.20 motion and had served out his prison time. As the prosecution stated, it is
highly suspicious that Black's "recantation" came at a time when
he had already received the benefit from testifying against
Tirado and Concepcion*fn5 and had nothing to lose. Finally,
Black's sister, Rahnisha Mackey, did not similarly recant her
testimony, despite the attempts by Concepcion's attorney to have
her sign an affidavit for that purpose. The trial court summarily
denied Concepcion and Tirado's motion to vacate the judgment for
"the reasons stated" in the prosecution's answering affirmation.
Motions for a new trial based upon newly discovered evidence
are "granted only with great caution in the most extraordinary
circumstances." United States v. DiPaolo, 835 F.2d 46, 49 (2d
Cir. 1987) (internal citations and quotations omitted). Courts
are particularly reluctant to grant new trial motions where the
newly discovered evidence consists of a witness recantation as
such recantations are "`looked upon with the utmost suspicion.'"
United States v. Gallego, 191 F.3d 156, 166 (2d Cir. 1999)
(quoting United States v. DiPaolo, 835 F.2d at 49 (citations
omitted)). Tellingly, Black never recanted his trial testimony to
the district attorney or to the police. The sole proof of the
alleged "recantation" is the uncorroborated affidavit submitted
by Black, an arguably biased witness (he was friends with both
Concepcion and Tirado). I am unable to find that Black's
uncorroborated affidavit, standing alone, suffices to establish
that a recantation actually occurred, let alone that Black's
statements are credible.
As fully explored by defense counsel at trial, Black was
offered the potential for a reduced sentence if he cooperated
with the police and provided truthful testimony at Tirado's
trial. Tirado offers no evidence apart from the uncorroborated
statements by Black that the police coerced Black into testifying against Tirado and Concepcion.
Moreover, Black's affidavit, signed after he had received a
modification in his sentence and completed his prison terms, is
inherently unworthy of belief.
Even if I were to accept Black's "recantation" as true, it does
not constitute newly discovered evidence sufficient to warrant a
new trial. A claim "`based on newly discovered evidence ha[s]
never been held to state a ground for federal habeas relief
absent an independent constitutional violation occurring in the
underlying state criminal proceeding.'" Ortega v. Duncan,
333 F.3d 102, 108 (2d Cir. 2003) (quoting Herrera v. Collins,
506 U.S. 390, 400 (1993) (in turn citing Townsend v. Sain,
372 U.S. 293, 317 (1963), for the proposition that evidence that could not
have been presented in the state proceedings "must bear upon the
constitutionality of the applicant's detention")); see also
United States v. Bagley, 473 U.S. 667, 678 (1985)
("[C]onstitutional error occurs . . . only if the evidence is
material in the sense that its suppression undermines confidence
in the outcome of the trial.").
The Second Circuit has stated that "[o]nly recantations of
material testimony that would most likely affect the verdict rise
to the level of a due process violation, if a state, alerted to
the recantation, leaves the conviction in place." Sanders v.
Sullivan, 863 F.2d 218, 225 (2d Cir. 1988); accord Ortega v.
Duncan, 333 F3d at 108. Even accepting Black's allegations as
true, which this Court explicitly does not find to be the case,
they would not necessarily have resulted in Tirado's acquittal:
the jury could have convicted Tirado based upon Rahnisha Mackey's
testimony which has not been assailed by allegations of
In sum, Tirado's claim based on newly discovered evidence of
alleged prosecution witness perjury is without merit and affords
no basis for habeas relief. Ground 11: Ineffective assistance of trial counsel
Tirado claims that he was "indicted as John Doe, when there
appears to be no valid reason why the indictment did not contain
petitioner's name on it causing it to be fatally defective."
Tirado faults defense counsel for failing to move to dismiss the
indictment and for consenting to the prosecution's request to
amend the indictment. See Amended Petition at 8c (Docket #22).
I note that this claim only presents an issue of State law
which generally is not cognizable on habeas review. See, e.g.,
Einaugler v. Supreme Court of the State of New York,
109 F.3d 836, 842 (2d Cir. 1997) (It is clearly established that a Federal
habeas court "may only overturn a state conviction when that
conviction was obtained in violation of a Federal constitutional
right."). In any event, there was no error in the court's
permitting the prosecution to amend the indictment under State
law and, consequently, no attorney error in failing to oppose the
Tirado's indictment had been sealed prior to his arraignment
because he never was charged in local criminal court prior to the
matter being presented to the grand jury; the name "John Doe" was
used to protect his anonymity. The prosecution was entitled to
amend the indictment to specify Tirado's proper name since the
amendment conformed to the proof before the grand jury and did
not prejudice the defendant. See N.Y. Crim. Proc. Law §
200.70(1); cf. People v. Ganett, 68 A.D.2d 81, 84 (4th
Dept. 1979) (where defendant is indicted under a fictitious name
because his true name is unknown or where some person other than
the intended defendant is accused in the indictment, the
indictment may be amended upon discovery of the true name of the
person the grand jury intended to indict), aff'd, 51 N.Y.2d 991
(1980). Because defense counsel had no colorable basis upon which
he could have moved to dismiss the indictment, see N.Y. Crim. Proc. Law § 210.25(1), he was not
ineffective in failing to do so. This claim accordingly provides
no basis for habeas relief.
For the reasons stated above, Miguel Tirado's petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and
the petition is dismissed. Because Tirado has failed to make a
substantial showing of a denial of a constitutional right, I
decline to issue a certificate of appealability. See
28 U.S.C. § 2253.
IT IS SO ORDERED