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August 8, 2005.

DARIEN MOORE, Petitioner,

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.


  A. The Facts

  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).

  B. Procedural History

  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 motion.

  b. The Trial

  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

  c. The Post-Trial Motion

  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 ...

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