The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge
MEMORANDUM OPINION AND ORDER
I have reviewed the attached Report and Recommendation of
United States Magistrate Judge Debra Freeman, dated April 18,
2005 ("R&R"), which recommends that Moore's pro se habeas
petition, brought under 28 U.S.C. § 2254, be dismissed. For the
following reasons, the R&R is adopted in full and the petition is
dismissed.
In a letter dated May 1, 2005, and an accompanying Memorandum
of Law, petitioner objects to Magistrate Judge Freeman's findings
regarding the first five of the six grounds raised in his
petition, which are as follows: (1) the trial court's admission
of evidence of narcotics in petitioner's apartment deprived him
of due process; (2) the trial court's admission of evidence that
Felipe Garcia, an alleged unindicted accomplice, refused to speak
with the police deprived petitioner of due process; (3) by using the allegedly false
testimony of Vanessa Vigo, an eyewitness, in the grand jury
proceedings and at trial, the prosecutor deprived petitioner of
due process; (4) the prosecutor's misconduct at trial, including
statements made by the prosecutor during summation, deprived
petitioner of due process;*fn1 (5) newly discovered evidence
shows that John Mobley, a friend of petitioner, committed
perjury; and (6) the conviction was against the weight of the
evidence which was legally insufficient to support the verdict.
See R&R at 9.
I have carefully reviewed Moore's May 1, 2005 letter and his
Memorandum of Law, as well as the R&R. Most of his objections are
simply re-arguments of the grounds first raised in his petition.
For example, Moore's first and second claims are challenges to
evidentiary rulings made by the trial court. In his petition,
Moore argued that evidence of the drugs found in his apartment
"had no probative value and was without any legitimate purpose."
Appendix to Petition Under 28 USC § 2254 For Writ Of Habeas
Corpus By A Person In State Custody ("Appendix") at 1. In his
objections, Moore states that "the admission of drug evidence had
no probative value. It did not establish the identity of the
murderer, his intent, his method, the absen[c]e of mistake, or any other
probative reason that may allow, absent a showing of undue
prejudice, for the introduction of uncharged crimes." 5/1/05
Letter at 2. With regard to Garcia's silence, Moore argued in his
petition that "evidence of an alleged co-conspirator's invocation
of his right to remain silent and to counsel, interjected by the
[P]eople and by the Trial Court prejudiced the defendant's right
to Due Process and a fair trial." Appendix at 1. In his May 1,
2005 letter, petitioner objected "on the ground that the admitted
evidence of Garcia's refusal to speak with the authorities on the
advice of counsel violated his constitution[al] right to due
process." 5/1/05 Letter at 2. The majority of Moore's objections
similarly mirror arguments first made in his petition.
With regard to Moore's first two claims, Judge Freeman noted
that a habeas court cannot consider claims of improper admission
of evidence unless the petitioner has shown that the alleged
errors deprived him of a fundamentally fair trial. See id. at
10-11. Judge Freeman found that given the totality of the
evidence introduced at trial, neither of Moore's first two claims
of evidentiary error are of sufficient constitutional magnitude
to be cognizable in a habeas proceeding. See id. at 14. Given
the overwhelming evidence of Moore's guilt, I agree with this
finding. Judge Freeman found petitioner's third and fourth claims to be
unexhausted but deemed exhausted and procedurally barred because
he did not include them in his letter requesting leave to appeal
to the Court of Appeals. See id. at 15-17. Moore argues that
his claims are not procedurally barred and even if they were,
failure to review them would result in a fundamental miscarriage
of justice. To invoke this narrow exception, a petitioner must
show "actual innocence" meaning "factual innocence, not mere
legal insufficiency." Rosario v. United States, 164 F.3d 729,
733 (2d Cir. 1998). Moore has made no such showing. Instead of
offering any new evidence demonstrating "actual innocence," Moore
merely states, in conclusory fashion and without any supporting
rationale, that failure to review the claims would result in a
fundamental miscarriage of justice. See 5/1/05 Letter at 7, 9.
Because Moore has not shown cause and prejudice or actual
innocence, Judge Freeman was correct in finding that he cannot
overcome the procedural bar.*fn2 These claims are therefore
not cognizable on habeas review. With regard to Moore's fifth claim, Judge Freeman noted that
one of the prosecution's witnesses, John Mobley, only partially
recanted his trial testimony; he did not recant testimony that
after the homicides, petitioner confessed to him that he had just
shot two people. See id. at 29. For a petitioner to demonstrate
that he was denied due process because of a witness's false trial
testimony, he must show: (1) that the false testimony was
material; and (2) but for the false testimony, he "would most
likely not have been convicted." Ortega v. Duncan,
333 F.3d 102, 108 (2d Cir. 2003). Given that Mobley's recantation was only
partial, Moore has not demonstrated that Mobley's recanted
testimony was material or that he would most likely not have been
convicted without that testimony. Moore's fifth claim is
therefore dismissed despite his objection that the testimony
recanted by Mobley was very material because the remaining
evidence against him was weak.*fn3 See United States v.
Danzey, 594 F.2d 905, 916 (2d Cir. 1979) (stating that the "testimony of a single eyewitness is
generally sufficient to support a conviction").
Finally, in his sixth ground, Moore asserts that his conviction
was against the weight of the evidence and that the evidence was
legally insufficient to support the verdict. Judge Freeman
correctly notes that a "weight of the evidence" claim is a state
law claim that is not cognizable in a federal habeas proceeding.
See R&R at 29. With regard to Moore's sufficiency of the
evidence claim, Judge Freeman found that claim to be procedurally
barred. See id. at 30. I agree with Judge Freeman's analysis
and conclusions regarding these claims. Accordingly, petitioner's
sixth ground is dismissed.
For the reasons stated above, I hereby accept and adopt the
thoughtful and thorough Report and Recommendation in full and
dismiss Moore's habeas petition. Finally, there is the question
of whether to grant a certificate of appealability. For a
certificate of appealability to issue, petitioner must make a
"substantial showing of the denial of a constitutional right."
28 U.S.C. § 2253(c)(2). "A "substantial showing" does not require a
petitioner to demonstrate that he would prevail on the merits but
merely "`that reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or that
the issues presented were `adequate to deserve encouragement to
proceed further.'" Middleton v. Attorneys General of the States of New
York and Pennsylvania, 396 F.3d 207, 209 (2d Cir. 2005) (per
curiam) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(internal quotation marks and citation omitted)). Petitioner has
made no such showing. Accordingly, I deny a certificate of
appealability. The Clerk of the Court is directed to dismiss the
instant petition and close this case.
Pro se petitioner Jamal Moore*fn4 ("Petitioner"), seeks
a writ of habeas corpus under 28 U.S.C. § 2254, challenging his
conviction in New York Supreme Court, New York County. Upon a
jury verdict, Petitioner was found guilty of two counts of Murder
in the Second Degree. (Petition ("Pet."), filed July 7,
2002,*fn5 at 1; Memorandum of Law in Opposition to Petition
("Resp. Mem."), filed Nov. 19, 2002, at 1.) Petitioner was
sentenced to two consecutive, indeterminate prison terms of from
25 years of life. (Resp. Mem. at 1.) At the time he filed his
habeas petition, Petitioner was incarcerated at Green Haven
Correctional Facility in Stormville, New York (see Pet.), although he has since been transferred to
Upstate Correctional Facility in Malone, New York.*fn6
Petitioner challenges his conviction on several grounds. (See
Appendix to Petition ("Pet. App.") at 2-11.) Respondent argues
that the petition should be dismissed because the claims raised
are procedurally barred, do not present federal constitutional
issues, and/or are without merit. (See Resp. Mem.)
For the reasons set forth below, I recommend that the petition
be dismissed in its entirety.
As the full trial transcript has not been made available to the
Court, the facts set forth herein are primarily taken from
Respondent's summaries of the evidence presented at trial. (See
Resp. Mem.; Respondent's Answer & Appendix ("Resp. Ans."), filed
Nov. 19, 2002 (Dkt. 9).) Petitioner has not filed a reply to
Respondent's papers, despite having been given an opportunity to
do so, and thus the Court has no reason to question the accuracy
of Respondent's recitation of this evidence.
Petitioner was convicted of the murder of two men, William
Santana Guzman (also known as "Cheche"), and Ismael Delacruz
("Delacruz"). (See Resp. Mem. at 1.) In May 1995, these two men
were found together, both with gunshot wounds, in a parked car on
West 148th Street in Manhattan. (See id. at 7-9.) The
prosecution proceeded at trial on the theory that Petitioner had
been hired to kill Delacruz by another man, Felipe Garcia
("Garcia"), who, about one month earlier, had been beaten up by Delacruz in a fistfight.
(See id. at 6.) As part of its case, the prosecution presented
two key witnesses, John Mobley ("Mobley"), a friend of
Petitioner's, who testified that Petitioner had confided in him
regarding the murder plan before it was executed and then later
confessed to the murders, and Vanessa Vigo ("Vigo"), who
testified that, from her apartment overlooking West 148th Street,
she had witnessed Petitioner commit the shootings. (See id. at
6-9, 11.)
More specifically, the evidence at trial apparently included
testimony by Mobley that, on one evening in April or early May
1995, Petitioner showed Mobley a black, medium-sized, automatic
gun and confided that he was going to be paid by Garcia to kill
someone who had been in a fight with Garcia. (Id. at 6.) The
evidence also showed that Garcia had been in a fight with
Delacruz in April 1995. (Id.)
Vigo apparently testified at trial that, at approximately 9:00
p.m. on May 28, 1995, from her living room window, she saw
Petitioner standing across West 148th Street with his girlfriend.
(Id.) According to Vigo, Petitioner and his girlfriend spoke
for about five minutes and then separated. (Id. at 7.) As Vigo
saw Petitioner walk toward Amsterdam Avenue, she also saw Cheche,
who was a friend of hers, drive up in a burgundy car. (Id.)
Cheche was in the front passenger's seat while another man, later
identified as Delacruz, was driving. (Id.) Cheche and Delacruz
double-parked in front of a food truck located in front of 562
West 148th Street, exited the car, bought food, and re-entered
the car, switching seats. (Id. at 7-8.) Vigo watched the men
begin to eat their food, with Cheche now in the driver's seat and
Delacruz in the front passenger's seat. (Id. at 8.) Vigo further testified that, a few minutes later, she saw
Petitioner, wearing dark pants and a black hooded sweatshirt with
the hood pulled up, reappear from the direction of Amsterdam
Avenue. (Id.) Petitioner passed by the burgundy car, peering
into the passenger's side of the car. (Id.) He continued onto
Broadway, where he spoke to some people, and then came back onto
West 148th Street. (Id.) Vigo saw him proceed back to the car,
draw a black, square gun, and fire several shots into the car's
front passenger window. (Id.) As Petitioner then fled toward
Amsterdam Avenue, Vigo saw his hood fall down, revealing his
braided hair. (Id.) Another witness, Carlos Jimenez
("Jimenez"), similarly testified that, although he did not see
the shooter's face, the shooter had braided hair and was wearing
dark pants and a black, hooded sweatshirt. (Id. at 8-9.)
According to Jimenez, the shooter continued to run toward
Amsterdam Avenue, until he entered the basement of Petitioner's
apartment building. (Id. at 9.)
Shortly after 10:00 p.m., several police officers apparently
responded to the scene of the shooting. (Id.) Two of the police
officers found the burgundy car double-parked with its engine
running and Cheche and Delacruz inside. (Id.) Cheche was
already dead, and Delacruz was later pronounced dead at the
hospital. (Id.) The other officers at the scene noted that the
car windows were tinted, except for the windshield, and that
there was a single bullet hole in the car's windshield, food in
the front seat, and three shell casings from a .380-caliber
automatic gun outside of the passenger's side of the car. (Id.
at 10.)
The next evening, on May 29, 1995, Mobley visited Petitioner at
Petitioner's home, 560 West 148th Street, Apartment 2A. (Id. at
11.) According to Mobley's trial testimony, Petitioner then
confided in Mobley that, the night before, he had shot to death
two people who had been in a car on West 148th Street. (Id.) Later that night, at about 9:00 p.m., police officers arrived
at the Petitioner's apartment in response to an anonymous call.
(Id.) When they knocked on the door, Petitioner fled out of the
back window into a backyard that led to alleyways and the street.
(Id. at 11-12.) Approximately 20 minutes later, Mobley let the
police into Petitioner's apartment, where an officer found "a
clear plastic bag containing white power" in "the back room."
(Id. at 12.) The police arrested Mobley and another person in
the apartment on drug possession charges, which were later
dismissed. (Id.)
Mobley also testified at trial that, a week or two later, when
he and Petitioner encountered Garcia on West 146th Street, Garcia
told Petitioner, "Good job." (Id.)
Approximately two years later, on May 19, 1997, while being
interviewed about another double homicide, Vigo stated that she
had information relevant to the Cheche and Delacruz murders.
(Id.) Soon after, in June 1997, Vigo gave a statement to the
police about what she had witnessed on May 28, 1995. (Id.) Vigo
testified at trial that she had not spoken to the police earlier
because she was "scared," as Petitioner lived in the neighborhood
for a time after the shooting, and, even after Petitioner left
the area, Petitioner's family continued to live there. (Id. at
13.) Petitioner was subsequently arrested. (Id.)
On January 29, 1998, Detective Gerard Dimuro, Detective Elpidio
DeLeon, and the trial prosecutor met with Mobley in New Jersey.
By that time, Mobley was himself incarcerated and awaiting trial
on felony drug charges. (Id.) During that interview, Mobley
denied having any knowledge about the Cheche and Delacruz
homicides. (Id.) In February 1998, however, at later meetings,
Mobley told the detectives and the prosecutor what he knew about
the homicides. (Id.) According to Mobley's trial testimony, the
trial prosecutor told Mobley that she would speak with the New Jersey prosecutors to get Mobley's felony charges
reduced to a misdemeanor, if he told the "truth." (Id.)
After speaking with Mobley, Detective DeLeon learned that
Garcia lived at 518 West 146th Street, but was incarcerated at
Rikers Island on an unrelated charge. (Id.) Detective DeLeon
attempted to speak with Garcia, but Garcia, "through his
attorney," refused. (Id.)
A. Pre-Trial Proceedings and Trial
On July 7, 1997, a grand jury filed an indictment, charging
Petitioner with two counts of Murder in the Second Degree and one
count of Criminal Use of a Firearm in the First Degree. (Id. at
2.) Petitioner was tried by a jury in the New York Supreme Court,
and, on March 5, 1998, he was found guilty on the two murder
counts.*fn7 (Id.) He was sentenced on April 7, 1998.
(Id.)
Following his conviction, Petitioner, proceeding pro se,
moved, pursuant to New York Criminal Procedure Law § 440.10, to
vacate the judgment, alleging: (1) that the prosecutor knowingly
allowed Vigo to provide false testimony in the grand jury
proceedings and at trial; (2) that the prosecutor engaged in
misconduct on summation; and (3) that newly discovered evidence
showed that Mobley had committed perjury at trial. (See Motion
to Vacate Judgment, C.P.L. § 440.10, attached to Resp. Ans. as
Ex. A.) On November 29, 2000, Justice Edwin Torres, who had
presided over Petitioner's trial, denied Petitioner's Section
440.10 motion. (See Order, attached to Resp. Ans. as Ex. L.) Petitioner moved for leave to appeal the denial of his Section
440.10 motion to the Appellate Division, First Department
("Appellate Division"). (See Motion for an Order Granting Leave
to Appeal the Denial of a Motion Pursuant to C.P.L. § 440.10,
attached to Resp. Ans. as Ex. E.) The Appellate Division denied
Petitioner's motion for leave to appeal on March 15, 2001.
People v. Moore, 2001 N.Y. App. Div. LEXIS 2954 (1st Dep't Mar.
15, 2001).
While Petitioner's Section 440.10 motion was pending in
February 2000, Petitioner, through counsel, filed a brief in the
Appellate Division claiming that: (1) the trial court erred in
admitting testimony regarding (a) the dismissed drug possession
charges against Petitioner, and (b) Garcia's refusal to speak
with the police; (2) the prosecutor improperly "bolstered" the
testimony of Mobley and Vigo; and (3) the prosecutor's comments
in summation deprived Petitioner of a fair trial. (See
Defendant-Appellant's Brief, dated February 2000 ("2/00 Brief"),
attached to Resp. Ans. as Ex. B.)
In August 2000, Petitioner, pro se, filed a supplemental
brief in the Appellate Division which reiterated the claim that
the prosecutor's comments during summation deprived him of a fair
trial and further claimed that the evidence was legally
insufficient, that the jury verdict was against the weight of the
evidence, and that the prosecutor had procured the indictment and
conviction through the knowing use of perjured testimony.
(Defendant-Appellant's Supplemental Brief ("Supplemental Brief"),
dated August 2000, attached to Resp. Ans. as Ex. C.)
On January 16, 2001, the Appellate Division unanimously
affirmed Petitioner's conviction, holding that: (1) the verdict
was based on legally sufficient evidence; (2) the verdict was not against the weight of the evidence; (3) the testimony
concerning the narcotics found in Petitioner's apartment did not
deprive Petitioner of a fair trial; and (4) Petitioner had opened
the door to testimony that Garcia, the person who had allegedly
hired Petitioner to kill Delacruz, had refused, through his
attorney, to speak with detectives investigating the case. See
People v. Moore, 279 A.D.2d 336, 718 N.Y.S.2d 845 (1st Dep't
2001), ...