The opinion of the court was delivered by: John Gleeson, United States District Judge
FOR ONLINE PUBLICATION ONLY
Amin Booker petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, having been convicted in the Supreme Court of New York, Kings County, of one count of murder in the second degree, one count of attempted murder in the second degree, and one count of reckless endangerment in the first degree.Booker was sentenced to a total of 45 years to life in prison. Oral argument of the petition was held by telephone conference on June 9, 2006.
For the reasons set forth below, I deny the petition.
The government's evidence at trial established that around 9:30 p.m. on June 3, 1996, Amin Booker shot and killed Purcell Davis (also known as "Sonny") and shot Theodore Jones (also known as "Divine") in the leg. Booker fired at a group of people, which included Davis and Jones, who were playing dice outside the apartment building at 33-35 Saratoga Avenue in Brooklyn. Three police officers arrived at the scene, saw Booker shoot at the building, and chased him. During this chase, Booker shot at the officers and then threw a .45 caliber semiautomatic handgun in the grass. Minutes later, Booker was caught and arrested.
Before the shooting, Davis, Jones and two others, "Man" and Shakeem, were standing in front of 33-35 Saratoga Avenue while Davis and Shakeem played dice. In front of the building, a light was on. Shawnese Fore (Jones's girlfriend) and Denise Simon were also present, and were talking to Jones and Davis. Simon saw Booker sitting on a bench approximately 10 to 12 feet from the front of the building and noticed that he was wearing a red hat, a red shirt, red pants and white sneakers. Simon and Fore then went up to Simon's apartment on the eighth floor, where they would witness the shooting and the police chase of Booker.
When the shooting began, Jones and his friends ran to the front entrance of the building to escape the gun fire. But there was not enough room in the doorway, so Jones and Man ran toward a fence to the left of the building. When Fore and Simon heard the shots, they went to the window. Simon did not see Booker on the bench. Fore saw him running on Saratoga and shooting at 33-35 Saratoga Avenue with two guns. Fore saw that the shooter was wearing all red, but she did not see his face. Meanwhile, Jones jumped the fence and was shot in the left leg when trying to jump a second fence. When he fell to the ground, he turned around and saw Booker, who was wearing a red jacket and holding a gun. Booker tried to shoot Jones again, but his gun jammed. At trial, Jones specifically identified Booker as the person who shot him.
Police Officers Clisti, Pearsall, and Bresnihan were driving on Saratoga Avenue in a marked police car when they heard gunshots. They saw Booker, wearing red clothing, backing up toward the car while shooting toward 33-35 Saratoga Avenue. Pearsall observed Booker firing two guns. When the officers attempted to get out of the car, Booker turned and shot at them. The officers identified themselves and ordered Booker to stop. A chase ensued, which Fore and Simon witnessed from their apartment. The chase lasted between one and one-half and eight minutes, according to the officers. It ended when Clisti, Pearsall, and two transit officers who had arrived on the scene surrounded Booker. Booker surrendered and was arrested. The officers did not see anyone else in the area wearing red during the incident. Bresnihan traced Booker's route and found a .45 caliber handgun in the grass on Saratoga Avenue, which was not well lit at the time.
After the arrest, Davis, Jones, and Fore were brought to the hospital. Booker was taken to the precinct, where he was processed and photographed. After the police removed his red shirt, they seized a white elastic band -- a band typically used to holster a gun -- from around his waist.
Jones suffered a broken leg from the gunshot wound and was in the hospital for five days. Davis suffered from two gunshot wounds: one fatal shot to the right side of his back that went through the abdomen and a major blood vessel, and one through his right knee. The bullet extracted from Davis's body was fired from the recovered .45 handgun.*fn1
Booker was charged with two counts of murder in the second degree, three counts of attempted murder in the first degree, one count of attempted murder in the second degree, two counts of assault in the first degree, one count of reckless endangerment in the first degree, three counts of attempted aggravated assault upon a police officer, one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree.
1. The Trial, Sentence, and Direct Appeal
On August 7, 1998, the jury found Booker guilty of one count of murder in the second degree, one count of attempted murder in the second degree, and one count of reckless endangerment in the first degree. The jury acquitted Booker of the charges of firing at a police officer.
On September 3, 1998, Booker was sentenced as a second felony offender to consecutive terms of imprisonment of 25 years to life on the murder count and 20 years on the attempted murder count. He was sentenced to seven years on the reckless endangerment count, to run concurrently with the other two sentences. Booker was re-sentenced on September 24, 1998 to three and one-half to seven years for the reckless endangerment count.
On May 12, 2000, Booker, through counsel, appealed his conviction to the Appellate Division, Second Department. Appellate counsel argued that (1) the conviction was against the weight of the evidence because the prosecution's witnesses gave conflicting testimony and that their testimony was inconsistent with the physical evidence presented, and (2) the prosecution's failure to disclose the videotape of Jones's grand jury testimony (which was recorded in the hospital and played to the grand jury) was a violation of People v. Rosario, 9 N.Y.2d 286 (1961).
The Appellate Division affirmed the convictions on December 26, 2000. People v. Booker, 718 N.Y.S.2d 384 (2d Dep't 2000). Viewing the evidence in the light most favorable to the prosecution, the court determined that the verdicts were not against the weight of the evidence. Id. In addition, the court held that the Rosario claim was unpreserved for appellate review. Id. Specifically, the court stated:
Where, as here, the defense counsel failed to request a specific remedy as a consequence of the People's alleged noncompliance with his request, and where the record is otherwise silent as to whether the material was produced, appellate review of the claim is foreclosed.
On January 10, 2001, Booker's appellate counsel sought leave of the New York State Court of Appeals to appeal the Appellate Division's decision. Counsel presented the issue of whether the burden to create a record of disclosure concerning Rosario material requested by the defense lies with the prosecution. By certificate, the application to appeal was denied on May 10, 2001. People v. Booker, 96 N.Y.2d 826 (2001) (Levine, J.).
2. The First Coram Nobis Petition
On July 29, 2002, Booker petitioned the Appellate Division, Second Department for a writ of error coram nobis. He claimed that he had received ineffective assistance of appellate counsel because in the leave application to the New York Court of Appeals, counsel failed to argue that the weight of the evidence did not support his conviction and that trial counsel was ineffective (for failing to obtain the videotaped statement of Jones and failing to preserve the Rosario claim based on that videotape for appellate review).
On November 12, 2002, the Appellate Division denied the petition, citing Jones v. Barnes, 463 U.S. 745 (1983). People v. Booker, 749 N.Y.S.2d 731 (2d Dep't 2002).
3. The Initial Petition Before This Court
On November 22, 2002, Booker filed his initial petition for a writ of habeas corpus in this court, claiming that (1) there was insufficient evidence to support a conviction and the verdict was against the weight of the evidence; and (2) appellate counsel was ineffective for
(a) not exhausting the insufficiency of the evidence claim in the leave application to the New York Court of Appeals and (b) failing to adequately present the Rosario claim as part of the ineffective assistance of trial counsel claim before the Appellate Division. Respondent filed an opposition to the petition, but on March 8, 2004, I granted Booker's motion to stay the petition so he could bring a motion in state court.
On March 11, 2004, Booker filed a motion pro se in New York Supreme Court to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. Booker raised six claims: (1) the prosecution acted improperly in failing to supply the defense with the videotape of Jones's grand jury testimony; (2) the prosecution failed to notify Booker within fifteen days of the arraignment about the videotape of Jones's statements, as required by CPL § 710.30; (3) the trial court failed to give a jury instruction regarding circumstantial evidence; (4) the prosecution failed to establish an independent source for in-court identifications because the eyewitnesses did not testify at the Wade hearing; (5) he was entitled to a Mapp hearing; and (6) he received ineffective assistance of trial counsel because his attorney (a) failed to request a Mapp hearing, (b) failed to request a circumstantial evidence instruction, (c) failed to request an independent source hearing, (d) failed to seek sanctions for the prosecution's failure to produce Rosario material, specifically the videotape of Jones, (e) failed to move to suppress Jones's in-court identification, and (f) failed to suppress a pretrial showup identification by Simon, and (g) failed to call a witness (Jose Machicote) on Booker's behalf.
The New York Supreme Court, in a decision dated December 8, 2004, denied Booker's § 440.10 motion. The court held that Booker's first claim -- the prosecution's failure to disclose the videotape -- was "procedurally barred under CPL § 440.10(3)(a) because defendant unjustifiably failed to use due diligence to cause the matter to appear on the record in a manner providing an adequate basis for appellate review." People v. Booker, No. 7634/96 at 2 (N.Y. Sup. Ct. Dec. 8, 2004) (citations omitted). Of the other four claims, all but the ineffective assistance of counsel claim were deemed procedurally barred under § 440.10(2)(c) for failure to raise them on direct appeal when sufficient evidence was in the record to permit review on appeal. The court denied the ineffective assistance of trial counsel claim on the merits, holding generally that it did not meet the "high threshold" required for such claims. People v. Booker, No. 7634/96 at 4. The court specifically rejected each of the underlying grounds as well, stating as follows: (a) no Mapp hearing was necessary because Booker was searched lawfully, i.e., the search was incident to his lawful arrest; (b) a circumstantial evidence charge, given by courts when the evidence is completely circumstantial, was not necessary because the prosecution presented direct evidence of guilt; (c) because there was no proof that the in-court identification was unduly suggestive, an independent source hearing was not necessary; (d) the argument that the trial counsel should have sanctioned the prosecutors for failing to turn over the videotape of Jones's statement was rejected because Booker did not prove that the nondisclosure led to the verdict, and in any event, defense counsel had a transcript of the statement, making any prejudice negligible; (e) the photographic array shown to Jones was not unduly suggestive, so there was no need to suppress his in-court identification; (f) because the challenged showup identification procedure was not police arranged, there was no need to move to suppress it*fn2 ; and (g) the argument that counsel failed to call a witness was procedurally barred, pursuant to CPL § 440.30(4)(b), because Booker failed to present sworn affidavits in support of his claim that the witness would have changed the outcome of the trial.
On January 10, 2005, Booker petitioned the Appellate Division, Second Department for leave to appeal the New York Supreme Court's denial of his § 440.10 motion. On April 13, ...