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October 19, 2005.

JAMAL MOORE, Petitioner,
CHARLES GREINER, Superintendent, Green Haven Correctional Facility, Respondent.

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge


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.)

  B. Section 440.10 Motion

  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).

  C. Direct Appeal

  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), ...

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