United States District Court, S.D. New York
August 2, 2005.
KARSEM WILLIAMS, Petitioner,
WILLIAM PHILLIPS, Superintendent, Green Haven Correctional Facility, Respondent.
The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
REPORT AND RECOMMENDATION
To the Honorable Deborah A. Batts, United States District Judge:
Pro se petitioner Karsem Williams seeks a writ of habeas corpus
from his September 7, 1995 conviction in Supreme Court, New York
County, of two counts of second degree murder and one count each
of first degree robbery and second degree criminal possession of
a weapon, and sentence (as modified) to twenty-five years to life
imprisonment. (Dkt. No. 4: Am. Pet. ¶¶ 1-5.) Williams' habeas
petition claims that: (1) he was deprived of due process by the
prosecutor's failure to disclose compensation paid to a key
prosecution witness for his testimony (Am. Pet. Att. 1 ¶ 1); (2)
he was deprived of due process when the prosecutor failed to
disclose a key witness' psychiatric history (id. ¶ 2); (3) he
was denied a fair trial by the prosecutor's failure to disclose a
key prosecution witness' criminal history (id. ¶ 3); (4) the
prosecutor violated his "constitutional duty to alert the defense and court when one of his witnesses give false
testimony" (id. ¶ 4); and (5) he was "subjected to an
ineffective assistance of counsel" by counsel's failure to
request certain hearings (id. ¶ 5).
For the reasons set forth below, Williams' petition should be
DENIED as time-barred.
Prior to trial, the prosecutor told defense counsel that
Abdullah Craft, Williams' uncle and a main prosecution witness,
had a violation conviction. (Dkt. Nos. 14-15: Trial Transcript
["Tr."] 218-19.) However, the prosecutor did not disclose the
arrest record containing the underlying details of the
conviction. (Id.) During trial, defense counsel asked the court
to require the prosecutor to turn over this information, arguing:
[The prosecutor] informs me orally that Abdullah
[C]raft was found guilty of a violation, he refuses
to turn over the print sheet which would reflect the
date, the time and the crime for which he was
originally arrested as well as possibly a docket
number which could be used which could have been
used in advance of trial for me to get the papers, so
that I could have questioned him about the underlying
facts of his arrest which I would be entitled to do.
I don't know what he was arrested for. I've only been
given information that he was only convicted of a
violation and not a crime.
The prosecutor responded: "It's my knowledge that I have an
obligation to turn over to [defense counsel] convictions of
crimes. I went beyond my obligation when I told [defense counsel]
that one of the witnesses had been arrested." (Tr. 221.) The judge denied the motion, telling Williams' counsel that "on
the basis of the knowledge you now have, in good faith, you can
cross-examine since it goes to the issue of credibility. You can
cross-examine any of these witnesses on the area of their arrest
and convictions." (Tr. 222.)
The Prosecution's Case at Trial: Overview
On December 5, 1993, the body of New York City Department of
Corrections Officer Anthony Villages was found wrapped in a rug
and bound with cable on Lenox Avenue in upper Manhattan. (Leslie:
Tr. 230-31, 235.) During the subsequent investigation, police
detectives learned that shortly before his death, Villages had
told a friend, Rachel Orange, that he was going to meet with a
man he met on a train earlier that day named "Dayquan." (Orange:
Tr. 186-87.) Before leaving to meet "Dayquan," Villages gave
Orange a piece of paper with the address of an apartment near the
park where Villages' body was found as well as a telephone number
associated with the apartment. (Orange: Tr. 189.)
Detectives determined that the apartment belonged to the mother
of Williams' daughter. (Leslie: Tr. 249-50.) While executing a
search warrant at the apartment, police found carpet fibers
matching the rug wrapped around Villages' body and wire similar
to that used to bind the rug. (Leslie: Tr. 243-44, 246, 248.)
They also found three photographs of Williams with the word
"Dayquan" written on the back, and Williams' birth certificate.
(Leslie: Tr. 244-46, 248-49, 275-76.) Six months later, on May 14, 1994, Williams' uncle Abdullah
Craft told police that Williams had evaded police by staying in
Craft's apartment, and that during his stay, Williams confessed
to killing Villages. (Craft: Tr. 404-06.) Later that day, police
arrested Williams and charged him with robbing and murdering
Villages. (Court: Tr. 584-87.)
At trial, the prosecution presented three witnesses who heard
Williams confess to killing Villages. Both Craft and his
common-law wife Anita Pearson testified that while Williams
stayed in their apartment, he repeatedly discussed the killing in
graphic detail. (Craft: Tr. 385-88; Pearson: Tr. 494, 502-05.)
Kim Beverly, a neighbor with whom Williams had sexual relations,
presented similar testimony. (Beverly: Tr. 540-43, 548, 571.)
Direct Examination of Abdullah Craft
During his direct examination, the prosecutor questioned Craft about his
disciplinary record during his service in the Vietnam War:
Q: And can you tell the jury about the circumstances
around which you were court marshalled; what were you
charged with and what happened?
A: Well, you know, after I was serving in the bush
after several months, there come periods of time when
you get paranoid or whatever like that and we had
loss a lot of men on one occasion. And you tend to
have someone you look up to, what they call a mother
or platoon. They kind of support you. And we loss
them. I was kind of depressed about that and other
little things. And one day I decided I wasn't ready
to go back out and I refused to go back out. I was
charged with disobeying a direct order.
(Craft: Tr. 367.) Craft testified that after his court-marshal,
he served a sentence of four months hard labor in Vietnam and at
a naval base in New Hampshire. (Craft: Tr. 368-69.) Craft also
testified that on another occasion he was charged with being AWOL for not
returning to his unit on time. (Craft: Tr. 369.)
The prosecutor next asked Craft the first of many questions
about his history of mental illness and drug abuse: Craft stated
he was first institutionalized after a suicide attempt in 1986
when he was a cocaine addict and was diagnosed with major
depression. (Craft: Tr. 373-74.) Craft testified that his drug
and alcohol use continued through 1993, when he moved to the
Brooklyn apartment where Williams stayed after the murder:
Q: And would it be fair to say that while you were
[at the Brooklyn address] you had a heavy crack
Q. You smoke[d] a lot of crack, smoked it frequently?
A: I smoked the pipe frequently, not everyday, but
Q: And did you also drink at that time?
A: Sure I drank beer. Every time I had money to buy
beer, I would drink beer.
(Craft: Tr. 381-82.)
Craft testified that in December 1993, his brother Hassan told
him that Williams "had a body" and needed to hide in his
apartment. (Id. at 382-83.) During his stay, Williams described
to Craft his role in the Villages murder:
Q: And in the course of his stay with you and his
visit with you at Morgan Avenue did he tell you why
he needed to stay at your house? A: Yeah, he told me. I got all the details over a
period of time, not necessarily in the sequence that
Q: What did he tell you?
A: Well, he had told me he had shot a corrections
Q: And did he give you any details as to how that
A: Well, from what he told me was that he had met the
officer on the train. I don't know whether he was by
himself or not because he never said so. And the
officer was taken back to [Williams' girlfriend's]
. . .
And the officer got and got in the apartment from
what I understand and they, you know he was sitting
at the table and he was fidgeting like he was
reaching for something, so he says, and made him a
little edgy and he fired a shot in the back of his
Q: Who fired a shot?
A: Karsem [Williams].
(Craft: Tr. 386-87.)
After Craft related detailed statements made by Williams and
Williams' friend Eric White*fn1 describing the sequence of
events leading to Villages death and the disposal of his body,
the prosecutor again returned to the issue of Craft's drug use
and mental health:
Q: During [March 1994], would you deceive people to
A: Yes I would. There was times, basically times I
asked for money, I did what I was supposed to do with
it. Still boils back to crack because I originally
had the money, should have taken care of it so it was
still just asking for money for crack.
Q: And would you say that crack was dominating your
life at that point?
A: Definitely. Without a doubt.
Q: Now can you tell the jury about how you took your,
attempted to take your own life? First of all one or
A: There were two attempts.
. . .
Q: What did you do?
A: I cut myself but I didn't cut myself as bad as I
knew I could. The second time I was in a very deep
episode and you know, I was all for it. I was
prepared to go. I opened my arms up really bad, lost
a lot of blood. But its hard to explain but its like
not facing the situation but that is what it came to.
(Craft: Tr. 399-400.) Craft testified that his second suicide
attempt resulted in part from a rumor that Williams "went to bed
with [Craft's] common law wife." (Craft: Tr. 400.)
After Craft returned from the hospital following the second
suicide attempt, Williams and Craft's brother Hassan confronted
Craft about his drug addiction. (Id. at 402.)
A: . . . [Karsem] asked me what did I do with some
groceries his mother gave me when I came out of the
Q: Who asked you that?
A: Karsem asked me that. You know they had me pissed
off. I was telling them anything. How much crack do
you smoke? Five hundred dollars a week. What did you
do with the groceries. Some of them was canned goods,
some was food they cooked already.
I said I stood on the corner and I sold the bag of
groceries I told them. When I said that, both of them
came at me at one time. Next thing I knew I was down on the floor. They kicked and stomped me
till they bruised my ribs and dislocated my jaw.
(Id. at 403-04.)
The next morning, Craft went to the police station to press
assault charges against Williams and Hassan. (Craft: Tr. 405.)
While at the police station, Craft told the police about
Williams' role in Villages' murder.*fn2 (Id.) Craft
explained that he made the decision to turn Williams in
"[b]ecause I was pissed off. I was mad and yes I wanted revenge."
(Craft: Tr. 406.)
Thereafter, the District Attorney's office moved Craft to an
undisclosed out-of-state location. (Craft: Tr. 413.) Craft
testified that between the period when Craft told the police
about Williams' involvement in the murder and the trial, the
District Attorney's office gave him money for living expenses:
Q: And in the course of your being relocated by my
office, did you receive money?
A: Yes I did.
Q: And what was that money for?
A: Living expenses and lodging.
Q: And have you received money continuously from May
of last year up until today? A: No because after a period of time I obtained a job
and while I was working getting money, making my own
money there was no need for me to ask you for my
money for living.
Q: But you have received rent money and some money
for food; would that be fair to say?
Q: That was paid for by my office?
A: That's correct.
(Craft: Tr. 413-14.)
Also during direct examination, Craft acknowledged an ongoing
struggle with mental health problems. He testified that the
Saturday before his testimony, he had some "kind of like a
depressive episode" and checked into a hospital. (Craft: Tr.
431.) He remained there through the day of his testimony because
he "fel[t] depressed, stressed out, nervous" and the hospital
staff considered him a suicide risk. (Craft: Tr. 432.) Craft
testified that he was prescribed two psychotropic medications
which he took both the night before and the morning of his
testimony. (Craft: Tr. 432-34.)
The prosecutor also asked Craft if he knew of Tamika Powell,
the woman who phone records indicated had a conversation with
someone inside the apartment where Villages was murdered (Preede:
Tr. 722-23, 726-30):
Q: . . . Mr. Craft, do you know a woman by the name
of Tamika Powell?
A: It's a friend of Karsem's mother, my sister, which
is Karsem mother's family. Q: Say again.
A: She's a friend of the family.
Q: Of whose family?
A: Mrs. Williams' family.
(Craft: Tr. 429-30.)
Defense Counsel's Cross-Examination of Abdullah Craft
On cross-examination, Williams' attorney focused on Craft's
mental health, criminal record, and the payments he received from
the District Attorney's office.
When asked in more detail about the payments from the District
Attorney's Office, Craft testified that between the time of
Williams' arrest and the trial seven months later, the District
Attorney had paid him "over $3,000" for food and rent. (Craft:
Tr. 438.) Craft acknowledged that he was unsupervised while
staying out-of-state and that he received the payments in cash.
(Craft: Tr. 438-40.)
Defense counsel asked Craft about two other charges levied
against him while in Vietnam for resisting arrest and threatening
a military police officer. (Craft: Tr. 445-46.) The prosecutor
unsuccessfully objected to the questions on the ground that Craft
was acquitted of both charges. (Tr. 445.) Williams' counsel never
asked Craft about the basis of the misdemeanor conviction that
the prosecutor refused to disclose at the pre-trial hearing.
(See page 2 above.)
Williams' counsel also questioned Craft extensively on the
details of his drug use and mental health. Craft again testified
that he drank large quantities of beer, sometimes drinking an entire six pack while smoking either marijuana or crack three to
four days a week. (Craft: Tr. 446-47.) Craft admitted that his
heavy drug use "may have played a role in intensifying [his]
depression." (Craft: Tr. 454.) Craft also admitted that when
using crack, he "[w]ould lie. Normal behavior [for] a crack
addict." (Craft: Tr. 460-61.)
The Verdict and Sentence
On July 13, 1995, the jury convicted Williams of two counts of
second degree murder, one count of first degree robbery, and one
count of second degree criminal possession of a weapon. (Tr.
1002-05; see Dkt. No. 4: Am. Pet. ¶ 5.) On September 7, 1995,
the court sentenced Williams as a second violent felony offender
to consecutive terms of imprisonment totaling forty-five years to
life. (Dkt. No. 15: 9/7/95 Sentencing Tr. 2-4, 25; see Am. Pet.
Williams' Direct Appeal
Williams appealed his conviction to the First Department on
seven grounds, claiming that: (1) During their search of the
apartment where Villages was murdered, the police recovered items
not included in the warrant and not in plain view, which should
have been suppressed (Dkt. No. 12: State Appx. Ex. A: Williams
1st Dep't Br. at 18-29); (2) Craft's testimony about Eric White's
statements constituted impermissible hearsay (id. at 30-36);
(3) the trial court improperly ruled that the prosecution could
impeach Williams using his prior conviction, thus preventing him
from testifying on his own behalf (id. at 37-43); (4) Williams
was deprived of his confrontation clause rights when the trial
court refused to require the prosecutor to disclose the arrest
record underlying Craft's disorderly conduct conviction (id. at
44-48); (5) the prosecution improperly shifted the burden of proof by calling attention to Williams' failure to testify on
his own behalf (id. at 49-54); (6) the trial court failed to
order certain testimony read back despite a clear request by the
jury (id. at 55-59); and (7) Williams was improperly sentenced
to consecutive rather than concurrent terms of imprisonment
(id. at 60-65).
On June 30, 1998, the First Department affirmed Williams'
conviction, finding the trial court's evidentiary rulings proper
and Williams' claims meritless, but modified Williams' sentence
to concurrent terms of imprisonment because each offense was
committed through a single act. People v. Williams,
251 A.D.2d 266, 266-67, 676 N.Y.S.2d 49, 50-51 (1st Dep't 1998).
On December 7, 1998, the New York Court of Appeals denied
Williams leave to appeal. People v. Williams, 92 N.Y.2d 1040,
684 N.Y.S.2d 506 (1998).
Williams' C.P.L. § 440.10 Motion
In August 2001, Williams filed a Motion to Vacate Judgment
pursuant to C.P.L. § 440, claiming that he had newly discovered
evidence that cast doubt on Abdullah Craft's testimony. (Dkt. No.
12: State Appx. Ex D: Williams C.P.L. § 440 Motion & Affs.)
First, Williams claimed that the new evidence showed that the
District Attorney had paid Craft a previously undisclosed sum of
$10,000 for his testimony. (Williams C.P.L. § 440 Aff. at p. 4.)
Second, Williams claimed that new evidence showed Craft had a
history of violence and psychiatric illness. (Id. at 5.)
Finally, Williams claimed he had evidence proving Craft testified
falsely when he stated Tamika Powell was a close friend of the
Williams family. (Id. at 6.) Williams also claimed his trial counsel was ineffective (although he did
not explain the basis for that claim). (Id. at 7-8.)
In support of these allegations, Williams attached affidavits
from six family members. (See Williams C.P.L. § 440 Motion Exs.
A-F.) Two of the affiants, Craft's estranged wife and Craft's
daughter, stated that Craft had boasted of receiving $10,000 from
the District Attorney in return for his testimony. (Williams
C.P.L. § 440 Motion Ex. A: Sabrina Craft Aff.; id. Ex. B:
Roquiah Craft Aff.)
Other family members related Craft's struggles with mental
illness and drug abuse. (See Williams C.P.L. § 440 Motion Exs.
C, D, F.) Craft's sister recounted Craft's history of medical
treatment for mental problems and stated that Craft "is known to
mislead, deceive, and manipulate people at will . . . [and]
suffers from a long history of illegal narcotics abuse."
(Williams C.P.L. § 440 Motion Ex. C: Brenda Smith Aff.) A second
sister stated that Craft abused his daughter and threatened his
common law wife. (Williams C.P.L. § 440 Motion Ex. E: Aischa
Craft Aff.) Craft's brother provided an affidavit in which he
noted that Craft was:
[A] [V]ietnam veteran suffering from post war
unstableness, who was frequently imprisoned during
war time[;] . . . has a long history of psychiatric
placements . . .; has attempted to commit suicide too
many times for me to recount; . . . [has] unprovoked
violent outbursts[;] . . . abuses his prescription
medication . . . [and] had an arrest record that
attests to his abnormal and irrational behavior.
(Williams C.P.L. § 440 Motion Ex. D: Sa-id Craft Aff.)
Two of the family members stated that Tamika Powell was unknown
to the Williams family. (Williams C.P.L. § 440 Motion Ex. E:
Aischa Craft Aff.; id. Ex. F: Zainab Ali Aff.) On November 27, 2002, the § 440 court denied Williams' motion.
People v. Williams, No. 4729-94 (State Appx. Ex. G: 11/27/02
Decision & Order.) Noting that C.P.L. § 440 motions must be made
"`with due diligence after the discovery of such alleged new
evidence,'" the § 440 court reviewed each claim and determined
that the proffered evidence was easily available to Williams at
trial. (Id. at 4.) First, regarding Craft's psychiatric
history, the court held:
The People state that Craft's psychiatric records had
been provided to the defense prior to trial, after
the People voluntarily submitted them to the trial
court for in camera review. The record is clear that
Craft was both examined and cross-examined about his
psychiatric history. Hence, this evidence cannot be
said to be newly discovered.
Id. at 4 (citations omitted). The § 440 court reached the same
conclusion on Williams' claim that Craft's criminal history was
not properly disclosed, stating that "a simple reading of records
belies [the claim that the People failed to reveal Craft's
criminal history] and shows that at trial Craft was examined and
cross-examined about the very criminal history defendant now
claims is newly discovered." (Id. at 5.)
Considering Williams' argument that Craft testified falsely
about the family's relation to Tamika Powell, the § 440 court
noted that Powell's existence and the phone evidence linking
Powell to the apartment was known to the defense prior to trial
and "all the defendant had to do was ask family members to
testify with respect to their relationship to Tamika Powell, or
their lack of any such relationship. Again this is not newly
discovered evidence." (Id. at 5.)
Next, the § 440 court considered Williams' accusation that the
prosecutor had paid Craft $10,000 for his testimony: The Court finds that the allegations of fact set
forth in defendant's motion in support of his claim
fail to comport with the procedural requirements of
section 440.30 of the Criminal Procedure Law. The
grounds upon which defendant alleges that Craft was
paid for his testimony comes in the form of
conclusory hearsay allegations contained in
affidavits from the defendant's family. Indeed, the
alleged basis of the witnesses knowledge is unclear
nor is it clear when they gained this knowledge.
Moreover, there is no affidavit from Craft stating
that he was paid for his testimony, nor do any of the
affiants allege that they witnessed these alleged
payments. In light of defendant's failure to provide
sworn, non-hearsay, allegations of fact, as required,
the motion is denied without a hearing.
(Id. at 7.)
Finally, the court denied Williams' ineffective assistance of
counsel claim, holding that "[a]lthough sufficient facts were
clearly on the record to permit review of defendant's
allegations, he unjustifiably failed to raise his ineffective
assistance of counsel in his direct appeal. Accordingly, the
instant motion must be, and is, denied pursuant to CPL
440.10(2)(c)." (Id. at 8.)
On January 14, 2003, Williams sought leave to appeal to the
First Department (State Appx. Ex. H), and on April 3, 2003, the
First Department denied leave to appeal the C.P.L. § 440
decision. (Am. Pet. ¶ 12(b).)
Williams' Initial Federal Habeas Petition
In his initial federal habeas petition, dated March 29, 2004
and received by the Court's Pro Se Office on April 12, 2004,
Williams challenged his conviction on eight separate grounds,
combining claims from both his direct appeal and his C.P.L. § 440
motion. (Dkt. No. 1: Pet. at 4.) Chief Judge Mukasey directed
Williams to show cause why his petition was not time-barred since
the petition was filed four years after his direct appeal. (Dkt.
No. 2: 6/22/04 Order at 3, 5.) The order also advised Williams any "amended petition will completely
replace the petition he originally filed with the Court." (Id.
In an affirmation filed in response to Judge Mukasey's order,
Williams acknowledged he was barred from petitioning for habeas
relief on the grounds of his direct appeal and stated that his
petition was based only on the new evidence claims in his C.P.L.
§ 440 motion. (Dkt. No 3: Williams 8/13/04 Aff. at 1-2.)*fn3
Williams' Instant Amended Habeas Petition
Williams' amended habeas petition raises only the five grounds
raised in his C.P.L. § 440 motion, concerning evidence he deemed
newly discovered: (1) he was deprived of due process by the
prosecutor's failure to disclose compensation paid to a key
prosecution witness, Craft, for his testimony (Dkt. No. 4: Am. Pet. Att. 1 ¶ 1); (2) he was deprived
of due process when the prosecutor failed to disclose Craft's
psychiatric history (id. ¶ 2); (3) he was denied a fair trial
by the prosecutor's failure to disclose Craft's criminal history
(id. ¶ 3); (4) the prosecutor violated his "constitutional duty
to alert the defense and court when one of his witnesses [Craft]
gave false testimony" about Tamika Powell (id. ¶ 4); and (5) he
was "subjected to an ineffective assistance of counsel" by
counsel's failure to request certain hearings (id. ¶ 5).
I. WILIAMS' HABEAS PETITION IS UNTIMELY UNDER §
The Antiterrorism and Effective Death Penalty Act ("AEDPA")
contains a one-year statute of limitations for habeas corpus
(d)(1) A 1-year period of limitation shall apply to
an application for a writ of habeas corpus by a
person in custody pursuant to the judgment of a State
court. The limitation period shall run from the
(A) the date on which the judgment became final by
the conclusion of direct review or the expiration of
the time for seeking such review;
. . . .; or
(D) the date on which the factual predicate of the
claim or claims presented could have been discovered
through the exercise of due diligence.
(2) The time during which a properly filed
application for State post-conviction or other
collateral review with respect to the pertinent
judgment or claim is pending shall not be counted
toward any period of limitation under this
28 U.S.C. § 2244(d)(1)-(2). On December 7, 1998, the New York Court of Appeals denied
Williams leave to appeal. People v. Williams, 92 N.Y.2d 1040,
684 N.Y.S.2d 506 (1998). The AEDPA one-year limitations period
began running ninety days later, on March 8, 1999, when Williams'
time to file a petition for certiorari expired. See, e.g.,
Williams v. Artuz, 237 F.3d 147
, 150-51 & n. 1 (2d Cir.) ("We
. . . hold that the AEDPA limitations period specified in Section
2244(d)(1)(A) does not begin to run until the completion of
direct appellate review in the state court system and either the
completion of certiorari proceedings in the United States Supreme
Court, or if the prisoner elects not to file a petition for
certiorari the time to seek direct review via certiorari has
expired."), cert. denied, 534 U.S. 924, 122 S. Ct. 279
Thus, Williams' time to file his habeas petition
expired on March 8, 2000, four years before he actually filed for
federal habeas relief.
Williams is not entitled to a toll of the AEDPA limitations
period, since his C.P.L. § 440 motion was not filed until August
2001, more than a year after expiration of his AEDPA time limitation. The Second Circuit has made clear that the state
collateral attack toll of § 2244(d)(2) does not start the
one-year limitation period to run anew, especially when it has
alrady expired before the collateral motion. E.g., Smith v.
McGinnis, 208 F.3d 13, 17 (2d Cir.), cert. denied,
531 U.S. 840, 121 S. Ct. 104 (2000); accord, e.g., Martinez v.
Keane, 02 Civ. 9030, 2003 WL 21254422 at *1 (S.D.N.Y. May 30,
2003) (Peck, M.J.); Rosario v. Bennett, 01 Civ. 7142, 2002 WL
31852827 at *13 & n. 16 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.) (&
cases cited therein), report & rec. adopted, 2003 WL 151988
(S.D.N.Y. Jan. 21, 2003) (Berman, D.J.).
II. WILLIAMS DOES NOT SATISFY THE "NEWLY DISCOVERED EVIDENCE"
LEGAL STANDARD, AND THUS IS NOT ENTITLED TO HABEAS RELIEF
Williams' habeas petition is based on claims of "newly
discovered evidence." (See pages 16-17 above.) Thus, this Court
must consider the applicability of 28 U.S.C. § 2244(d)(1)(D) to
determine whether Williams' habeas petition is timely under the
separate test of one-year from the date the factual predicate of
Williams' claims could have been discovered through the exercise
of due diligence. This Court cannot consider the merits of
Williams' claim if the petition is time barred. See, e.g.,
Burnie v. Duncan, No. 99-CV-350, 2003 WL 22670913 at *3
(E.D.N.Y. Nov. 3, 2003).*fn5 The "newly discovered evidence" AEDPA limitations period "runs
from the date a petitioner is on notice of the facts which would
support a claim, not from the date on which the petitioner has in
his possession evidence to support his claim." Youngblood v.
Greiner, 97 Civ. 3289, 1998 WL 720681 at *4 n. 4 (S.D.N.Y. Oct.
13, 1998); see also, e.g., Flanagan v. Johnson,
154 F.3d 196, 198-99 (5th Cir. 1998) (Petitioner's factual predicate that
he did not know he had the right not to testify was established
when he first executed an affidavit setting forth the legal and
factual basis for his claim; "Section 2244(d)(1)(D) does not
convey a statutory right to an extended delay, in this case more
than seven years, while a habeas petitioner gathers every
possible scrap of evidence that might . . . support his claim.");
Martino v. Berbary, No. 03-CV-0923, 2005 WL 724133 at *7
(W.D.N.Y. Mar. 30, 2005) (Petitioner's "newly discovered
evidence" claim is untimely because it "had clearly been in
existence and could have been discovered by petitioner prior to
the date that his conviction became final."); Cobos v.
Skinner, No. 04-CV-0083, 2004 WL 2191582 at *4 (W.D.N.Y. Sept.
26, 2004) (Alleged "newly discovered evidence" "was clearly in
existence and could have been obtained by petitioner before and
during his trial."); Foy v. Sabourin, 02 Civ. 7094, 2004 WL
574655 at *3-4 (S.D.N.Y. Mar. 23, 2004) (Denying petitioner's
"newly discovered evidence" claim because the factual predicate
came out during trial.); McKinney v. Herbert, No. 02-CV-4299,
03-MISC-0066, 95-CV-3129, 2003 WL 2318872 at *2 (E.D.N.Y. Dec. 3,
2003) (Weinstein, D.J.); Small v. Miller, 03 Civ. 240, 2003
WL 22801332 at *3 (S.D.N.Y. Nov. 25, 2003) (Petitioner's "newly
discovered evidence" claim held time-barred where petitioner
waited over one year from when he "discovered the factual
predicate" to file his motion to vacate.); Burnie v. Duncan,
2003 WL 22670913 at *4 ("Burnie's petition is out-of-time because at the evidentiary
hearing in state court it was shown that he had knowledge of [the
factual predicate]. . . . Burnie knew of [the witness']
purportedly exculpatory testimony as early as 1991, when he was
tried in state court. Thus, the claim is time-barred, and I need
not reach the merits of the claim."); Zephir v. Portuondo,
No. 98-CV-7647, 2003 WL 21738601 at *2 (E.D.N.Y. July 24, 2003)
(Agreeing with the state court that the records were not "newly
discovered evidence" because they "were readily available to
[petitioner] prior to trial. Moreover, [petitioner] obtained the
records significantly before the one-year period expired.");
Adams v. Greiner, 272 F. Supp. 2d 269, 273-74 (S.D.N.Y. 2003)
("Because the factual predicate for Adams's claim accordingly
could have been discovered prior to the date on which his
judgment of conviction became final, the exception provided by §
2244(d)(1)(D) is unavailable.") (citing cases); Aponte v.
Artuz, 01 Civ. 6404, 2002 WL 1205742 at *3 (S.D.N.Y. Mar. 11,
2002) (rejecting defendant's "newly discovered evidence" claim
because he did not raise it until "881 days after this (new
evidence) was discovered, and 391 days after the Appellate
Division's order was entered."); Lucidore v. New York Div. of
Parole, 99 Civ. 2936, 1999 WL 566362 at *5 (S.D.N.Y. Aug. 3,
1999) (Peck, M.J.), aff'd, No. 99-2492, 209 F.3d 107 (2d Cir.
2000), cert denied, 531 U.S. 873, 121 S. Ct. 175; DeVeaux v.
Schriver, 98 Civ. 7563, 1999 WL 1216298 at *5 (S.D.N.Y. Apr.
29, 1999) (Peck, M.J.), report & rec. adopted, 1999 WL 1095580
(S.D.N.Y. Dec. 3, 1999) (Mukasey, D.J.); Tineo v. Strack, No.
CV 98-834, 1998 WL 938950 at *3 (E.D.N.Y. Nov. 12, 1998)
(petitioner's "newly discovered evidence" period began to run at
trial when petitioner first knew that the "the videotape was not . . . accurately transcribed," not when he had the
videotape re-transcribed eight years after his conviction).
"The case law is clear that the one-year statute of limitations
governing federal habeas corpus relief begins to run from the
date on which the facts supporting the claim or claims presented
could have been discovered `through the exercise of due diligence
. . . regardless of whether petitioner actually discovers the
relevant facts at a later date.'" Adams v. Greiner,
272 F. Supp. 2d at 273-74 (quoting Wims v. United States,
225 F.3d 186, 188 (2d Cir. 2000)); see, e.g., Rodriguez v. New
York, 01 Civ. 9374, 2003 WL 289598 at *12 (S.D.N.Y. Feb. 11,
2003) (Peck, M.J.); Duamutef v. Mazzuca, 01 Civ. 2553, 2002
WL 413812 at *9 (S.D.N.Y. Mar. 15, 2002) ("When evidence is newly
obtained, but could have been obtained earlier [through the
exercise of due diligence], the date when the evidence was
actually obtained has no effect on the AEDPA limitation
period."); see also cases cited above. Put another way, "[t]ime
begins when the prisoner knows (or through diligence could
discover) the important facts, not when the prisoner recognizes
their legal significance. If § 2244(d)(1) used a subjective
rather than an objective standard, then there would be no
effective time limit. . . ." Owens v. Boyd, 235 F.3d 356, 359
(7th Cir. 2000), quoted with approval by Adams v. Greiner,
272 F. Supp. 2d at 274. "[N]ewly discovered evidence is, by
definition, incapable of discovery through . . . due diligence
before or during trial. Evidence in existence at an earlier date,
though perhaps unknown to a petitioner, cannot later be described
as newly discovered." Hector v. Greiner, No. 99 CV 7863, 2000
WL 1240010 at *1 (E.D.N.Y. Aug. 29, 2000) (citations omitted). As the § 440 court held, the evidence Williams claims to have
newly discovered was available to him at the time of trial.
(See page 14 above.) Further, the § 440 court found that the
evidence of Craft's psychiatric and criminal history, as well as
the issue of Tamika Powell's existence, were not new evidence, as
the trial transcript makes clear that Williams was aware of these
facts at the time of trial, and his counsel extensively
cross-examined Craft on his psychiatric and criminal history.
(See pages 10-11 above.) Additionally, the § 440 court noted
that Williams knew at trial that Craft had received over $3,000
in relocation expenses from the District Attorney's Office, even
if he did not know the amount (allegedly) was $10,000. (See
page 15 above.) "At best, [the additional information] would have
afforded defense counsel additional grounds on which to impeach
prosecution witnesses whose credibility had already been
vigorously challenged. . . ." United States v. Canova, No.
03-1291(L), 03-1300, 2005 WL 1444147 at *13 (2d Cir. Jun. 21,
2005).*fn6 This Court agrees with the state court that the
evidence was not newly discovered.*fn7 CONCLUSION
For the reasons set forth above, Williams' federal habeas
petition should be denied as barred by the AEDPA's statute of
limitations. A certificate of appealability should not be issued.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from service of this Report to file written objections. See
also Fed.R.Civ.P. 6. Such objections (and any responses to
objections) shall be filed with the Clerk of the Court, with
courtesy copies delivered to the chambers of the Honorable
Deborah A. Batts, 500 Pearl Street, Room 2510, and to my
chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be
directed to Judge Batts. Failure to file objections will result
in a waiver of those objections for purposes of appeal. Thomas
v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO
Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993),
cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson,
968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038,
113 S. Ct. 825 (1992); Small v. Secretary of Health & Human
Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair
Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson,
714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72, 6(a), 6(e).