The opinion of the court was delivered by: DENNY CHIN, District Judge
Pro se petitioner Darien Moore brings this petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge
his July 28, 1998 convictions in the New York State Supreme
Court, New York County, for Criminal Possession of a Controlled
Substance in the Third Degree, Assault in the Second Degree,
Tampering with Physical Evidence, and Resisting Arrest. Moore
claims that the prosecutor violated his due process rights by (1)
breaching the secrecy of his grand jury proceedings, (2)
withholding exculpatory material, and (3) committing misconduct during her summation.*fn1 For the reasons set forth below,
the petition is denied.
On the afternoon of October 1, 1997, plainclothes New York City
police officers Peter Cunneen, Michael Ciardullo, and Jeffery
Quod were on patrol in the vicinity of 41st Street and Broadway
in Manhattan. (T. 196-98).*fn2 From across Broadway, the
officers watched as two or three people gathered near a man they
later identified as Moore. Moore displayed a "white substance" in
his hand to a man later identified as Steven Jones, who began to
count money. (T. 200-01, 233-34, 377, 455). Suspecting a drug
sale, the officers approached the group, identified themselves as
police, and placed several individuals against a wall. (T. 205,
283-84, 377, 382, 460-61). Cunneen, while putting Moore against
the wall, noticed that Moore was chewing on a "frothing," "white
powder." (T. 203). Cunneen called out: "He's chewing it, he's
eating it." (Id.). Moore then turned around and threw punches
at Officer Cunneen's torso. (T. 203-04). A struggle ensued as
Cunneen tried to handcuff Moore, and the two fell to the ground.
(T. 204). Ciardullo went to help Cunneen while Quod monitored the other suspects and radioed for
assistance. (T. 347-75, 382, 456).
While on the ground, Moore refused to put his hands behind his
back and continued to chew. (T. 207-08). The officers struggled
with him for approximately five minutes. (T. 207). Officers
Edward Murphy and Charles McLaren arrived in response to Quod's
broadcast, and Murphy was able to handcuff Moore. (T. 303-05).
Moore then spit out a "white tissuey plastic" bag with some
powder in it. (T. 208, 508, 530). Ciardullo collected the bag and
arranged for a chemical analysis of the contents. (T. 463-64).
The analysis, conducted in June 1998 by police chemist Eugene
Gamburg, revealed that the bag contained cocaine. (T. 561-65).
Approximately five minutes after Moore was handcuffed, Cunneen
went to St. Vincent's Hospital because he felt extreme pain while
walking. (T. 209). The hospital diagnosed the problem as a
fractured bone in his right foot. (T. 351-52).*fn3
Meanwhile, Murphy and McLaren transported Moore to their
stationhouse in a police van. In the van, Moore complained of a
stomachache, asked to go to a hospital, and vomited. (T. 308-09).
At the stationhouse, Moore again complained of pain and asked to
go to a hospital. (T. 309, 421). Murphy and McLaren drove Moore
to Bellevue Hospital, where he reported that his ribs were hurting and was examined. (T. 311). Moore's hospital records
indicated that his right seventh rib was fractured.*fn4
After hospital staff x-rayed Moore, the officers handcuffed him
to a gurney. Moore became "agitated" when he noticed that his
jacket was missing, and he told Murphy and McLaren that if he did
not get his jacket back, he would "fight [them] five times as
hard as the cops out in the street." (T. 313). Moore stood up on
the gurney, "screaming and hollering," and the officers brought
him into the hallway to avoid allegations of police brutality.
(T. 313-14). Moore then became calm. (T. 314).
1. State Court Proceedings
a. The Indictment and Pre-Trial Motion
On December 12, 1997, in the Supreme Court of New York, County
of New York, a grand jury indicted Moore for criminal possession
of a controlled substance, assault, tampering with physical
evidence, and resisting arrest. Before his trial, Moore moved
pursuant to N.Y. Crim. Proc. Law § 210.45 for a hearing to determine whether the prosecutor had violated the secrecy of the
grand jury proceedings by discussing his grand jury testimony
with state witnesses. See N.Y. Crim. Proc. § 210.45 (McKinney
1993 & Supp. 2005). An attorney for Moore filed an affidavit in
support of the motion, swearing that on December 10, 1997, after
Moore's grand jury testimony, she witnessed the prosecutor
discuss the proceedings with several of the testifying officers.
(See Pet. App. Br. at 8).*fn5 Specifically, the attorney
claimed that while waiting for an elevator, she had overheard the
prosecutor comment to the officers, "I asked him about the way he
acted in the hospital. I hope that was O.K." (Id.). The
prosecutor's written response to the motion stated that she did
not remember making these comments. (Id.). The court denied
Moore's trial began on June 24, 1998 and lasted five
days.*fn6 Officers Cunneen, Murphy, Quod, McLaren, and
Ciardullo were among the witnesses for the prosecution. Moore did
not call witnesses or present evidence. (See T. 576 (defense
counsel acknowledging this fact while resting)). The defense
attacked the prosecution's case by arguing that Moore was the
victim of police brutality. (See, e.g., T. 184-92 (defense counsel's
opening statement); T. 591-615 (defense counsel's summation)).
While cross-examining Ciardullo on June 29, the defense learned
of a document that was not produced during discovery: a police
voucher for Moore's personal property when he was arrested. (T.
481-82). Ciardullo testified that he was the police officer in
charge of the paperwork for Moore's case and that the voucher was
at his stationhouse. (T. 482-83). The court interrupted the
cross-examination, ordered Ciardullo to bring his case file the
following day, and adjourned until then. (T. 484).
In addition to the property voucher, Ciardullo's file contained
two Desk Appearance Tickets ("DATs") issued to individuals
detained during Moore's arrest. (T. 485-87, 490).*fn7
Defense counsel, seeing the DATs for the first time on the
morning of June 30, moved for a mistrial and dismissal of the
case or, alternatively, for a two-week adjournment to track down
the DAT recipients as potential witnesses. (T. 485-88). The court
denied the motions but gave Moore the option of cross-examining
Ciardullo and Quod about the DATs. (T. 492).*fn8 Moore
declined this offer. (T. 498-99). Before Ciardullo took the stand
again, the court instructed him that he would not be questioned about the DATs and that he was not to volunteer
information about them. (T. 501). After Ciardullo testified, the
parties rested and gave summations.
On the following morning, the judge charged the jury. That
afternoon, the jury found Moore guilty of all charges. On July
28, 1998, Moore was sentenced to concurrent terms of imprisonment
of eight to sixteen years for possessing a controlled substance,
seven years for assault, one year for tampering with evidence,
and one year for resisting arrest. (Sent. T. 10).*fn9
On January 16, 2001, Moore moved the trial court pursuant to
N.Y. Crim. Proc. Law § 440.10(1)(b), (g), and (h) to vacate his
conviction. See N.Y. Crim. Proc. Law § 440.10 (McKinney 2005).
He argued that the prosecution had committed a Brady violation
by failing to produce the DATs in a timely manner. He maintained
that the DATs would have led to exculpatory evidence that could
not otherwise have been produced with due diligence at trial.
Moore supported his motion with an affidavit from one of the DAT
recipients, Johnnie Burgess (the "Burgess Affidavit"). In
relevant part, Burgess swore: (1) "I witnessed [Moore's] arrest
in its entirety from the time the police appeared until Mr. Moore
was led away in handcuffs"; (2) "[a]t no time during these events
did I witness Mr. Moore either punch or kick a Police Officer or anyone else at the scene"; and
(3) "[i]f I had ...