The opinion of the court was delivered by: VICTOR BIANCHINI, Magistrate Judge
William Crenshaw ("Crenshaw") filed this pro se petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging
his conviction in New York State Supreme Court (Monroe County).
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
The conviction at issue in the instant habeas petition stems
from the armed robbery of Robert Harris ("Harris"), a parking lot
attendant for All-Right Parking in the City of Rochester. On the
morning of May 2, 1997, Harris was working in his booth when a
black male wearing a pair of camouflage pants and a camouflage
jacket entered the booth, drew a gun, and demanded the money that
Harris was counting at the time. When Harris dropped the money,
the robber grabbed it and ran towards Franklin Street. Harris
chased the perpetrator across the street and observed him run
past the drive-through window of a bank located across the
street. At that point, Harris abandoned his pursuit of the robber
and asked a parking meter monitor to call 911. A mounted police officer with the Rochester Police Department
happened to be in the vicinity and responded to the scene. Harris
informed him that the robber was a black male with a short build
wearing camouflage pants and a camouflage jacket. Harris
described the gun as a small, dark-colored automatic pistol. The
description was broadcast, and, almost simultaneously, another
police officer saw a person matching the description jogging a
short distance from the robbery scene and dressed in camouflage
pants and a blue hooded sweatshirt. The suspect, later identified
as Crenshaw, was carrying a camouflage jacket under his arm. The
second police officer stopped his car and called out to Crenshaw
that he wished to speak with him. Crenshaw glanced at the officer
and began running away down Lyndhurst Street. Crenshaw leapt over
a fence and ran through some backyards, whereupon the officer
lost sight of him.
About a minute and a half later, Crenshaw was apprehended by
Officer Peterson, also a member of the Rochester Police
Department. Officer Peterson had responded to the 911 broadcast.
No gun was found on Crenshaw's person, but currency in various
denominations (one ten-dollar bill, one five-dollar bill, and
twenty-five one-dollar bills) were discovered. Harris had
reported that he was not sure of the exact amount of money
stolen, but he remembered that it was mostly one-dollar bills.
The police brought Crenshaw back to the crime scene where Harris,
without hesitation, identified him as the robber.
When he was brought to the police station for questioning,
Crenshaw gave a false name and claimed not to be the robber. He
explained that he was in the area because he was looking to have
a "quick fuck" with a woman named "Monique" before he had to go
see his regular girlfriend. However, he was unable to provide the
police with the woman's last name or address. Crenshaw claimed
that he was a "dope dealer," not a robber, and that the money
found in his pockets was proceeds from selling "weed." He stated that "on the
street," buyers paid him for five-dollar bags of "weed" with
one-dollar bills. Crenshaw also accused the police of stopping
him solely because he was black.
Crenshaw testified in his own behalf before the grand jury
which indicted him on one count of first degree robbery. During
the subsequent suppression hearing, the court held admissible
Crenshaw's statements to the police, the show-up identification,
and the physical evidence seized at the time of his arrest.
At Crenshaw's jury trial, the defense called Deborah Eabron
("Eabron"), who was at the drive-through window of a nearby bank
and who told the police that she had seen Harris chasing a man in
dark-colored clothing. Eabron, who had not seen the man's face
and could not identify the robber, testified for the defense at
trial. At trial, she described the robber as wearing a "green
waist jacket [sic] and dark pants, either black or dark, navy."
The jury returned a verdict convicting Crenshaw of one count of
first degree robbery as charged in the indictment. He was
sentenced as a second felony offender to a determinate sentence
of twenty years incarceration.
The Appellate Division, Fourth Department, of New York State
Supreme Court unanimously affirmed his conviction on December 27,
2000. People v. Crenshaw, 278 A.D.2d 897 (4th Dept. 2000).
The New York Court of Appeals denied leave to appeal on April 16,
2001. People v. Crenshaw, 96 N.Y.2d 799 (2001). Crenshaw
collaterally attacked his conviction by means of a motion to
vacate the judgment pursuant to New York Criminal Procedure Law
("C.P.L.") § 440.10 which was denied by the trial court. Crenshaw
also challenged the performance of his appellate counsel by means of an application
for a writ of error coram nobis which was summarily denied by
the intermediate appellate court.
Crenshaw filed his initial habeas petition in this Court on or
about August 15, 2002. Thereafter, the petition was held in
abeyance so that he could return to state court in order to
exhaust a claim of ineffective assistance of appellate counsel in
an application for a writ of error coram nobis. Crenshaw filed
his amended habeas petition on or about April 3, 2003. For the
reasons set forth below, I conclude that none of the claims
raised in Crenshaw's initial petition or amended petition warrant
To prevail under 28 U.S.C. § 2254, as amended by the
Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in 1996,
a petitioner seeking federal review of his conviction must
demonstrate that the state court's adjudication of his federal
constitutional claim resulted in a decision that was contrary to
or involved an unreasonable application of clearly established
Supreme Court precedent, or resulted in a decision that was based
on an unreasonable factual determination in light of the evidence
presented in state court. See 28 U.S.C. § 2254(d)(1), (2);
Williams v. Taylor, 529 U.S. 362, 375-76 (2000). Merits of the Petition
Crenshaw contends that he was improperly indicted because
certain allegedly exculpatory material was not provided to him
prior to the grand jury's deliberations, namely, the
investigative report completed by Officer McNamara in which he
states that eyewitness Eabron saw Harris, the robbery victim,
chasing a "male black wearing dark colored coat & pants" [sic].
See A.185. According to Crenshaw, the report is exculpatory on
its face because it described the suspect being chased as wearing
clothes substantially different from the description of the
robber's clothes given by the victim to the police. On direct
appeal, the court rejected this claim, finding that the report
did not contain exculpatory evidence.
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 v. Maryland,
373 U.S. 83, 87 (1963) ("Brady") (holding that suppression by the
prosecution of evidence favorable to the accused "violates due
process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution"). 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.").
On the facts before me, I can find no violation of the mandates
set forth in Brady and its progeny. First of all, I question whether the report in fact was
exculpatory; there is no reason why army-green
camouflage-patterned clothing could not also be described as
dark-colored. More important, there was no "withholding" within
the meaning of Brady. A defendant is not entitled to have the
prosecutor turn over all potentially exculpatory and impeaching
material on demand, let alone prior to the meeting of the grand
jury. All that the Constitution requires is that the material be
disclosed in time for its effective use at trial. United States
v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001) (citing Leka v.
Portuondo, 257 F.3d 89, 100 (2d Cir. 2001) ("It is not feasible
or desirable to specify the extent or timing of [the] disclosure
Brady and its progeny require, except in terms of the
sufficiency, under the circumstances, of the defense's
opportunity to use the evidence when disclosure is made."), and,
inter alia, United States v. Smith Grading & Paving, Inc.,
760 F.2d 527, 532 (4th Cir. 1985) (same); United States v.
Starusko, 729 F.2d 256, 262 (3d Cir. 1984) (same); United
States v. Olson, 697 F.2d 273, 275 (8th Cir. 1983) (same);
United States v. Allain, 671 F.2d 248, 255 (7th Cir. 1982)
(same); United States v. Pollack, 534 F.2d ...