The opinion of the court was delivered by: Brieant, J.
Mr. Frank Sacco, a state prisoner convicted of the murder of Robert Meloni, has been seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Sacco v. Cooksey, 214 F.3d 270 (2d Cir. 2000). By a Summary Order issued February 24, 2006 in the above entitled proceeding, filed in this District Court as a Mandate on April 12, 2006, our Court of Appeals ordered that the Petition filed March 26, 2004, originally transferred to the Circuit Court by this Court as a second or successive § 2254 Petition, be re-transferred to the district court with instruction to "accept the Petition, to the extent that it raises a claim of actual innocence, for filing as a first petition under 28 U.S.C. § 2254(b)." The Court of Appeals also held that the district court "should determine whether this Court's findings in its 2000 decision have a collateral estoppel effect on the actual innocence claim and, in addition, whether Herrera v. Collins, 506 U.S. 390, 400 (1993), implicates the claim."
On May 18, 2006, this Court issued a briefing schedule with respect to compliance with the Mandate, and held a hearing on September 21, 2006 at which time decision was reserved. At the hearing, Federal Defenders of New York, Inc. (Yuanchung Lee, Esq.) was appointed to represent Mr. Sacco in connection with the proceedings on remand.
The prior history of this case may be found in Sacco v. Cooksey, supra and isset forthin some detail in Petitioner's brief in this proceeding, commencing on page 4. Familiarity therewith on the part of the reader is assumed. To the extent necessary for this particular decision, the Court will refer in detail in the discussion which follows to some of the prior state and federal proceedings.
Petitioner, age 83, is serving a twenty-five years to life sentence for Second Degree Murder, and bases this Petition on the ground that he is actually innocent of the crime.
Frank Armento (Sacco's nephew and former business partner) is the sole witness whose testimony directly implicates Mr. Sacco as the murderer of Robert Meloni. While Mr. Sacco may have had guilty knowledge of the murder and may well have been an accessory after the fact, his claim that Frank Armento committed the murder and the evidence submitted in support of it is, as this Court has previously held, sufficient to raise "vintage reasonable doubt."*fn1
This Petition proffers some new exculpatory evidence, and also exculpatory evidence which Sacco's trial attorney knew existed at the time of trial but did not use. Our Court of Appeals has previously held in Sacco v. Cooksey, supra that the failure or refusal of trial counsel to use the known exculpatory evidence did not rise to a level of incompetence to satisfy the first branch of the Strickland Rule. As to the new exculpatory evidence, of course it could not and did not enter into the Strickland analysis.
Consideration of Herrera v. Collins, 506 U.S. 390, 400 (1993).
For convenience, we commence our analysis with the issue of whether Herrera "implicates," or perhaps bars, the present claim of actual innocence.
What is the significance of dicta where its author is a Justice of the Supreme Court? Our Court of Appeals has approved the definition of dicta adopted in Carroll v. Carroll's Lessee, that "if a point of law might have been decided either way without affecting any right brought into question, then, according to the principles of the Common Law, an opinion on such a question is not a decision," 57 U.S. (16 How) 275, 286-87 (1853), (cited with approval in Jimenez v. Walker, 458 F.3d 130, 142, 143 (2d Cir. 2006)). The opinion in Herrera is rife with dicta. However, there is no reason to believe that the statements of the various co-authors do not represent their true beliefs and understandings. Thus, we may reasonably expect that, as future cases unfold, those same views are likely to be expressed again, this time as ratio decidendi.
The issue under consideration presumably is whether a so-called stand-alone claim of actual innocence based on newly discovered evidence is cognizable in a habeas court. In Herrera, the Court considered a challenge to a state conviction and subsequent collateral proceedings in which a Petitioner sentenced to death urged by affidavits for the first time, in a second federal habeaspetition, filed ten years after his conviction, that he was actually innocent of the murder with which he was charged. The affidavits presented showed the real killer was his brother, now conveniently deceased. Petitioner argued that the Eighth Amendment's prohibition against cruel and unusual punishment and the Fourteenth Amendment's guaranty of due process rendered his prospective execution unconstitutional. In denying the writ, the Court of Appeals had relied on Townsend v. Sain, which held that "the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus," 372 U.S. 293, 317 (1963). This and the fact that it was a death case inspired the grant of certiorari.
The rule of Townsend v. Sain is said in Herrera to be grounded on the principle that federal habeas corpus courts sit to ensure that individuals are not in prison in violation of the Constitution, not to correct errors of fact. The majority opinion in Herrera cites Jackson v. Virginia, 443 U.S. 307 (1979) as holding that a federal habeas court may review a claim if the evidence adduced in a state trial was not sufficient to convict a criminal defendant beyond a reasonable doubt. Nevertheless, after expressing understandable policy concerns, the majority, speaking through the Chief Justice, held as follows:
We may assume for the sake of argument in deciding this case, that in a capital case a truly persuasive demonstration of actual innocence made after trial would render the execution of a defendant unconstitutional and warrant federal habeas ...