The opinion of the court was delivered by: John F. Keenan, United States District Judge
Petitioner Daniel Thomas ("Thomas") moves pro se to vacate, set aside, or correct his conviction and sentence, pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the petition is denied.
On the night of July 14, 2002, Detective Albert Rosario ("Detective Rosario") of the New York City Police Department saw Thomas and a woman walking in the middle of 171st Street in the Bronx. The woman appeared to be supporting Thomas, and as Detective Rosario approached he could see that the man was bleeding heavily from the shoulder. As Thomas tried to flag down a livery cab, Detective Rosario stopped him. Detective Rosario identified himself, and Thomas said they were on their way to the hospital. Detective Rosario could see that Thomas' leg was also bleeding and radioed for an ambulance. (Tr. 71-73, Jan. 7, 2003.)
Before being taken into custody, Thomas told Detective Rosario that he had been in a fight up the block and had taken a gun from his assailant, who then stabbed him. Thomas told Detective Rosario that the name of his assailant was Raheem. Detective Rosario asked where the gun was, and Thomas moved to get the gun from the side pouch of his overalls. Detective Rosario told Thomas not to take the gun out, but Thomas insisted. The gun seemed to be stuck, but it eventually jostled down his pant leg. Detective Rosario recovered the gun, a loaded .44 magnum Smith & Wesson revolver. At around this time, the woman who had been helping Thomas left the scene without speaking to the police. Thomas was arrested after police backup arrived and was taken to a hospital in an ambulance for treatment. (Tr. 73-78, 82.)
According to Thomas, on July 14, 2002, he had been visiting friends in the area of 171st Street and Wythe Place where Thomas had a heated confrontation with Raheem Hansberry ("Hansberry") over Hansberry's use of teenagers to facilitate his drug dealing. Thomas had known Hansberry for a very long time. They had lived in the same apartment building and for a time Hansberry had lived with Thomas and his wife. Thomas' relationship with Hansberry had allegedly soured because of Thomas' disapproval of Hansberry's employment of young teenagers in the drug trade. (Tr. 161-68.)
A second confrontation occurred around 11 pm, when Thomas claims he was trying to convince several teenagers to stop dealing drugs for Hansberry. As Hansberry confronted Thomas, Hansberry reached into a nearby garbage can to retrieve a gun. Thomas was able to snatch the gun from Hansberry, then backed away and stuck the gun in his pants. Hansberry began stabbing Thomas, threatening to kill him, and Thomas began backing up from Wythe onto 171st Street. Hansberry stabbed Thomas numerous times, below the eye, on the shoulder and collarbone, and in the thigh, as Thomas backed into a parked car and then fell down on 171st Street. Hansberry turned around and walked away, and Thomas began to run down 171st Street where he encountered Detective Rosario.
On July 26, 2002, Thomas was indicted for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e).
Before trial, the government moved in limine for permission to impeach Thomas, if he testified, with his three prior felony convictions: a 1980 robbery conviction involving a .22 caliber pistol, a 1989 attempted robbery conviction involving a metal pipe, and a 1996 robbery conviction involving an ice pick. Thomas opposed the motion in a letter dated December 27, 2002.
At a pretrial conference on January 3, 2003, the Court ruled that the government would be allowed to impeach Thomas with the 1980 and 1996 robbery convictions, pursuant to Rule 609(a)(2) of the Federal Rules of Evidence ("Fed. R. Evid."). (Tr. 12-13, 23-24, Jan. 3, 2003.) Rule 609(a)(2) states that "evidence that any witness has been convicted of a crime shall be admitted...if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness." The Court commented: "[a]ll of the three crimes involve the unlawful taking of property from another. Such taking is dishonest, and therefore Federal Rule of Evidence 609(a) subdivision 2 is implicated in each instance." (Tr. 12, Jan. 3, 2003.) However in "an excess of caution," the Court would not permit cross-examination on the 1989 attempted robbery. Id.
In a motion in limine dated December 20, 2002, the government sought to introduce evidence of Thomas' 1980 robbery conviction under Fed. R. Evid. 404(b). Rule 404(b) states that evidence of a defendant's past crimes is admissible to prove intent, motive or opportunity, but not admissible to prove the defendant's bad character.
The Court ruled that "[n]othing is admissible in the first instance. Once, however, the defense puts into issue intent, that is, the intent to possess the pistol, the door is open, and I will then permit the 1980 felony robbery with the .22 caliber pistol to be gone into on the government's direct case, if you open the door in your opening." (Tr. 8, Jan. 3, 2003.) In her opening statement, Thomas' attorney Margaret Shalley opened the door. She stated that "Thomas temporarily took possession of the weapon intending to rid himself of it as soon as possible under the circumstances." (Tr. 59.)
3. Motion to Recuse the Prosecutor
At a pre-trial conference on January 6, 2003, Ms. Shalley argued that the prosecutor should be recused from the case because he was a potential witness at trial. A New York City Police Department report contained the details of a conversation between the prosecutor and one detective that was relayed to a second detective, who wrote the report. After reviewing the report, the Court rejected Ms. Shalley's application to recuse the prosecutor. (Tr. 5, Jan. 6, 2003.) The Court said: "[T]here is no indication that [the prosecutor], even if the double, indeed it may be triple, hearsay in the police report is accurate, that [the prosecutor] did anything wrong or that there is any reason why [the prosecutor] should be called as a witness." (Tr. 5, Jan. 6, 2003.)
Ms. Shalley then argued that the police report showed that the prosecutor had attempted to structure witness Hansberry's testimony so that Hansberry would state that he had assaulted Thomas because Thomas had a gun. (Tr. 7, Jan. 6, 2003.) The Court again denied the application, after hearing a proffer from the prosecutor that he did not tell any detective to structure Hansberry's testimony.
4. Motion to Call Hansberry
On December 29, 2002, Ms. Shalley made a motion in limine to permit the defendant to call Hansberry at trial, even though Hansberry had already announced his intention to assert his Fifth Amendment right against self-incrimination. Ms. Shalley suggested that if Hansberry did invoke his Fifth Amendment privilege, the Court could compel the government to offer him immunity. The government opposed this motion in a letter dated December 27, 2002.*fn1
Once the trial had begun, the Court permitted Ms. Shalley to examine Hansberry outside the presence of the jury. Answering Ms. Shalley's questions on the stand, Hansberry stated that he lived in the area of 171st Street and Wythe Place, that Thomas used to live in the same neighborhood, and that he had known Thomas all of his life. Hansberry asserted his Fifth Amendment privilege and refused to answer questions about his occupation or the events leading up to Thomas' arrest on July 14, 2002. (Tr. 29-43.)
Ms. Shalley argued that the admission of his testimony regarding his prior relationship with Thomas would partially corroborate Thomas' anticipated testimony at trial. Ms. Shalley asserted that the Court could allow a party to call a witness who would invoke his right against self-incrimination before the jury, and that the probative value of Hansberry's testimony would outweigh any ...