The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge
On April 14, 2004, petitioner Mark P. Horne ("Horne") filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Court on one count of first degree burglary (N.Y. Penal Law §140.30(4)) and one count of second degree menacing (N.Y. Penal Law § 120.14(1)). Horne raised the following grounds for habeas relief: (1) the show-up identification was unduly suggestive; (2) trial counsel did not provide effective assistance on several bases; (3) the verdict was against the weight of the evidence; and (4) the sentence was harsh and excessive. See Docket #1. On April 8, 2005, Horne filed a pleading docketed as "Memorandum in Opposition re Petition for Writ of Habeas Corpus by Kenneth S. Perlman" See Docket #10. The first sixteen pages of this document consist of respondent's memorandum of law filed in August 2004 (Docket #5). The remaining pages of Docket #10 constitute a new memorandum of law by Horne in which he raises one additional ground for habeas relief, namely, that trial counsel was ineffective in failing to serve an alibi notice. Respondent has objected to the inclusion of the new claim in Horne's habeas petition on the basis that Horne had not received permission from the Court to file an amended petition.
Because addressing the issues of whether the proposed claim is timely or "relates back" to the original petition would be more time-consuming than considering the merits of the claim, the Court will deem Horne's original petition to be amended to include the new ineffective assistance of trial counsel claim.
On November 3, 2005, Horne filed a motion to compel seeking the tape of a "911" emergency call made with respect to the incident that led to his arrest. Respondent has opposed the motion to compel. See Docket #12. The matter is now ready for disposition by the undersigned pursuant to the parties' consent to magistrate jurisdiction under 28 U.S.C. § 636(c). For the reasons set forth below, the motion to compel is denied and the petition is dismissed.
On November 30, 2005, Horne filed a request under New York's Freedom of Information Law ("FOIL") embodied in New York's Public Officer Law § 84. He sought "the 911 tape of call number B0890 on 5/14/90 time: 23:30 from: 132 Hewitt Ave. Buffalo N.Y." See Petitioner's FOIL Request, attached as Exhibit A (Docket #12-2) to Respondent's Opposing Affidavit to Petitioner's Motion to Compel (Docket #12-1). Also on November 30, 2005, Horne filed his motion to compel discovery pursuant to Rule 16 of the Federal Rules of Criminal Procedure in this Court. See Docket #11. This demand for discovery seeks the same information as requested in his FOIL request; Horne claims that it "will held [sic] his alibi" for the time of the crime. Thus, Horne argues, it is exculpatory material that must be disclosed pursuant to Brady v. Maryland, 373 U.S. 83, 87 (1963).
The Erie County District Attorney's Office denied the FOIL request on December 19, 2005, advising Horne that it had responded to Horne's previous request for the same information and enclosed its letter denying the previous request. See Letter from District Attorney to Petitioner, attached as Exhibit B (Docket #12-2) to Respondent's Opposing Affidavit to Petitioner's Motion to Compel (Docket #12-1). The District Attorney's Office noted that under New York's County Law § 308, records of 911 calls are exempted from disclosure under FOIL. See id. As respondent notes, Horne did not file an administrative appeal or seek review of the denial in state court pursuant to New York Civil Practice Law and Rules Article 78.
Respondent argues that the material cannot be Brady material because Horne claims that it is his voice on the 911 tape. Respondent's Opposing Affidavit to Petitioner's Motion to Compel at 3, ¶9 (Docket #12-1). Indeed, attached to Horne's motion to compel is a printout of a document titled "Incident History Detail," which appears to be the 911 call history. On it he has written, "This is the call tape that has my voice on it." See Docket #11. Thus, to the extent that Horne is arguing that the 911 tape is Brady material, the Court agrees with respondent that it is not technically exculpatory and therefore not within the ambit of Brady. See Strickler v. Greene, 527 U.S. 263, 281-82 (1999) ("There are three components of a true Brady violation: (1) The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; (2) that evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued.").
Furthermore, any Brady claim based on the 911 tape that Horne might raise on habeas review is unexhausted since he never raised such a claim on direct appeal or collateral review of his conviction. However, any such claim must be "deemed exhausted" but procedurally defaulted because Horne has no recourse in state court were he to attempt to exhaust it. Grey v. Hoke, 933 F.2d at 120-21. He has already used the one direct appeal to which he is entitled, and if he were to raise the claim in a motion to vacate under New York Criminal Procedure Law ("C.P.L.") § 440.10, it would be denied on a procedural basis. Id. This is because Horne presumably was aware of the 911 tape (if he was there during the call, as he alleges) and therefore could have raised the claim on direct appeal, but he failed to do so. See N.Y. Crim. Proc. Law 440.10(2)(c). Because the claim would be procedurally defaulted, Horne would not be able to obtain review of the claims merits unless he could show cause and prejudice which, on this record, he is unable to do. See Harris v. Reed, 489 U.S. 255, 262 (1989).
To the extent that Horne seeks discovery under Rule 16 of the Federal Rules of Criminal Procedure, the Court denies the application. First, the Federal Rules of Criminal Procedure are not applicable to this matter because a habeas corpus proceeding is a civil action. Second, as respondent notes, a habeas petitioner is not entitled to discovery as a matter of ordinary course. Bracy v. Gramley, 520 U.S. 899, 904 (1997). Discovery is only permitted if the district court finds "good cause" to allow it. Rule 6(1) of the Rules Governing Section 2254 Cases; Bracy, 520 U.S. at 904. A petitioner satisfies the "good cause" standard "'where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is . . . entitled to relief.'" Bracy, 520 U.S. at 908-09 (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)). Horne's application is devoid of such a showing. As Horne has failed to satisfy the "good cause" standard, his discovery request for production of the 911 tape is denied.
III. Analysis of the Petition
A. Factual Background Regarding the Underlying Conviction
Horne's conviction arose from an incident that occurred on the evening of May 14, 2000.
That night, Charles Swygert ("Swygert") and his girlfriend, Kathleen Hammond ("Hammond"), agreed to baby-sit for Horne and his girlfriend, Marlita Kyle ("Kyle"), who also was Swygert's cousin, while they went to the store. When he found out that Horne would not be returning in time for them to go to the movies, Swygert smashed the portable phone down on the glass coffee table and broke it. Fearful of Horne's wrath, Swygert and Hammond left Kyle's apartment, hid their car, returned to the apartment that they shared with Andy Wutz ("Wutz"), and told Wutz not to open the door to anyone.
After returning to Kyle's apartment and finding the glass coffee table shattered, Horne went looking for the suspected culprit. Horne went to the apartment that Swygert shared with Wutz, banged on the door repeatedly until he was let in, and aimed a shotgun at Wutz's face. (Swygert, who apparently knew how angry Horne would be about the coffee table, was hiding in his bedroom with the door locked.) When Horne demanded to know where Swygert was, Wutz replied that he had been sleeping and did not know. Horne stated, "[D]on't lie to me or I will fucking kill you." Wutz held his hands in the air and pointed toward Swygert's bedroom.
As Horne charged down the hallway, Wutz--who was clad only in his underwear--took the opportunity to exit the apartment. He ran to a house with the lights on and asked the residents to call the police. Meanwhile, Horne's efforts to gain entry to Swygert's bedroom proved unsuccessful, and he left the apartment.
When the police arrived a few minutes later, a fearful Swygert hid in the shower and would not emerge because there was a warrant out for his arrest. After the police left, Swygert informed Wutz of Horne's name and described his car and where he could be found. Wutz called the police and relayed that information to them. Horne was apprehended shortly ...