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Jansen v. Monroe County

May 5, 2006


The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge



Petitioner, Bruce Jansen ("Jansen"), filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on charges that he engaged in a course of sexual conduct against a child in the first degree in violation of New York Penal Law § 130.75(a). The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(c).


The conviction here at issue stems from Jansen's alleged sexual abuse of his fiancée's seven-year-old daughter over the course of a year from June 1997 to June 1998. After Jansen's adult biological daughter caught him and the child complainant in the middle of an improper act, the police were notified and Jansen was taken in for questioning. He voluntarily gave a statement to the police in which he admitted that, over the course of a year, he regularly made the young girl perform fellatio on him. See Respondent's Appendix ("App.") G at 45-46, attached to Docket #9.

Jansen waived his right to a jury trial and had a bench trial in Monroe County Court (Connell, J.). At trial, the prosecution offered into proof Jansen's inculpatory statement to the police, the statement and testimony of Jansen's adult daughter, who had discovered petitioner engaging the sexual conduct with the complainant, and the child complainant's testimony. Jansen did not testify. On June 21, 1999, the trial court convicted Jansen as charged in the indictment and sentenced him to twelve and one-half to twenty-five years imprisonment.

Jansen's conviction was affirmed on direct appeal by a divided panel of the Appellate Division, Fourth Department, of New York State Supreme Court on December 21, 2001. People v. Jansen, 289 A.D.2d 1050, 735 N.Y.S.2d 845 (App. Div. 4th Dept. 2001). On March 8, 2002, the New York Court of Appeals granted leave to appeal the following issue: whether the Appellate Division violated his appellate due process rights when it denied his request for access to the grand jury minutes. People v. Jansen, 97 N.Y.2d 755, 769 N.E.2d 362, 742 N.Y.S.2d 616 (N.Y. 2002). On October 22, 2002, the New York Court of Appeals unanimously affirmed the Appellate Division's decision and consolidated Jansen's appeal with that of another defendant's. See People v. Robinson, et al.,98 N.Y.2d 755, 781 N.E.2d 908, 751 N.Y.S.2d 843 (N.Y. 2002). The Court of Appeals held that Jansen failed to meet his threshold burden of demonstrating a compelling and particularized need for the minutes. Id.

This habeas petition followed. For the reasons set forth below, relief is denied.


1. Grand Jury Claims

Jansen principally complains about alleged defects in the grand jury proceeding and the prosecutor's failure to turn over the grand jury minutes to trial counsel and appellate counsel. To the extent Jansen is asserting defects in, or errors stemming from, the grand jury proceeding, such a claim is not cognizable on federal habeas review because Jansen was convicted after a bench trial in which the judge, as the trier of fact, found him guilty beyond a reasonable doubt. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989). In Lopez, the Second Circuit considered whether claims of error in a grand jury proceeding, including insufficiency of evidence to indict and the prosecutor's failure to present exculpatory evidence, are cognizable in a federal habeas corpus proceeding. The court held that such challenges to a state grand jury proceeding will not permit habeas relief, finding dispositive the Supreme Court's holding in United States v. Mechanik, 475 U.S. 66 (1986). Confronted with a constitutional attack on a federal grand jury proceeding, the Supreme Court stated in Mechanik that the petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.

Id. at 70 (footnote omitted). Based on that proposition, the Second Circuit reasoned that "[i]f federal grand jury rights are not cognizable on direct appeal where rendered harmless by a petit jury, similar claims concerning a state grand jury proceeding are a fortiori foreclosed in a collateral attack brought in federal court." Lopez, 865 F.2d at 32 (holding that habeas petitioner's "claims of impropriety before the grand jury in this case concern[ing] the sufficiency of the evidence, a failure to develop exculpatory evidence by the prosecutor, the presentation of prejudicial evidence and error in explaining the law" . . . were "cured in the trial before the petit jury, which convicted"). Thus, the guilty verdict at Jansen's bench trial precludes habeas review of all of Jansen's claims that relate to the grand jury proceeding.

2. Brady Violation

Under Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, state as well as federal prosecutors must turn over exculpatory and impeachment evidence, whether or not requested by the defense, where the evidence is material to guilt or to punishment. E.g., Strickler v. Greene, 527 U.S. 263, 280-81 (1999); United States v. Bagley, 473 U.S. 667, 676, 682 (1985); United States v. Agurs, 427 U.S. 97, 107 (1976). The Supreme Court has rejected any distinction between impeachment evidence and exculpatory evidence. See, e.g., Bagley, 473 U.S. at 676. Impeachment evidence "is 'evidence ...

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