The opinion of the court was delivered by: Gerard E. Lynch, District Judge
Cathy Watkins, an inmate at Bedford Hills Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, arguing (1) that she received ineffective assistance of counsel at her state trial; (2) that the voice identification procedure used by the police was unconstitutional; (3) that the prosecutor engaged in various misconduct at trial; (4) that the trial court improperly excluded evidence submitted by petitioner; (5) that the trial court erroneously gave a missing witness charge; (6) that the line-up identification was the fruit of an illegal detention; (7) that the trial court improperly failed to order the prosecution to disclose alleged Rosario material; and (8) that her sentence was excessive. For the reasons that follow, the petition will be denied.
On October 24, 1997, after a New York jury convicted Watkins of murder in the second degree, N.Y. Penal Law § 125.25(3), petitioner was sentenced to a prison term of twenty-five years to life. At trial, the State presented evidence to show that, on January 19, 1995, Watkins lured New Harlem Cab Company driver Baithe Diop to his death by calling for a cab to pick her up and drive her to the Bronx, where petitioner, along with four others, robbed and murdered him. (Killian Aff. ¶ 5.) Only facts relevant to the present petition will be recited here.
A. The Initial Arrest and Interrogation On January 19, 1995, Detective Michael Donnelly was assigned to investigate the murder of Baithe Diop, which had occurred earlier that day in the Bronx. (Tr. 857.) On that date, Det. Donnelly interviewed Nicole Diop, a dispatcher at the New Harlem Cab Company, who informed the detective that the deceased's last fare was a frequent customer who identified herself as "Yvette." (Id. 681, 687.) Det. Donnelly advised New Harlem's personnel to transport "Yvette" to the police precinct if she called again for a cab. (Id. 748.)
On January 21, 1995, petitioner was on her way to a party when her cab was stopped by the police and she was taken in for questioning about the murder. (Id. 1330.) Although petitioner was not formally arrested or charged with any crime, the trial court found at a Huntley/Wade hearing that the circumstances surrounding her detention created a de facto arrest. See People v. Watkins, No. 1086/95, at 8 (N.Y. Sup. Ct. filed Sept. 3, 1997); see, e.g., Discussion, Section VII, infra. However, Det. Donnelly did not administer Miranda warnings to petitioner, considering her at the time to be only a witness to, and not a suspect in, the homicide.
At the precinct, petitioner denied in a written statement that she had taken a cab on January 19, claiming to have been home with her boyfriend, Andrew Peters. (Id. 751-52.) Petitioner also agreed to be photographed at the precinct. (Id. 754.) Petitioner was allowed to leave, and agreed to come to the 43rd Precinct on the following evening with Peters. (Id.)
B. The Voice Identification
On the following evening, petitioner was again interviewed by Det. Donnelly. (Id. 757.) As part of his investigation, Det. Donnelly provided petitioner with a telephone number to call, and instructed her to call the number and pretend to order a cab. (Id. 760.) The number corresponded to a telephone line in the lieutenant's office where Nicole Diop was located. (Id. 758.) Ms. Diop had been instructed to answer the phone in the manner she would as a dispatcher with the New Harlem Cab Company. (Id.) Ms. Diop confirmed that the voice she heard on the phone and that of "Yvette" belonged to the same person. (Id. 762.) Petitioner denied having ordered a cab on the night of the murder, and was again allowed to leave. (Id. 763.)
C. The Identification, Formal Arrest, and Line-up
On February 1, 1995, Det. Donnelly interviewed Miriam Tavares, a witness to the shooting. (Id. 492.) Det. Donnelly showed Tavares the picture of petitioner taken on January 22, and Tavares identified petitioner as a participant in the shooting.*fn1 (Id. 494.) On February 16, 1995, petitioner was arrested in the hallway outside her apartment. (Id. 784.) The next day, Tavares identified petitioner in a line-up. (Id. 497, 787.)
A jury trial was held in the New York State Supreme Court, Bronx County, from September 4-26, 1997.
A. Pre-Trial Evidentiary Rulings
Before trial, petitioner sought to suppress her January 21 written statement and photograph as the fruit of an unlawful arrest. (See Resp. Ex. 15 at 7.) In addition, petitioner argued that, had the photograph taken of her on January 21 been properly suppressed, Tavares would not have been able to identify her from the photo as a participant in the crime, the police would not have had probable cause to arrest her, and the line-up could not have been conducted; thus, petitioner argued that the line-up identification of her by Tavares should have been suppressed as the further fruit of her initial unlawful arrest. Although the court found that petitioner's January 21 detention was a de facto arrest, it denied suppression of the statement and photograph due to "intervening events" between the arrest and the statement and photograph which "served to dissipate the taint of the prior unlawful police conduct." (Id.) Accordingly, the statement, photograph and line-up identification were not suppressed.
Before trial, petitioner also sought to suppress the January 22 voice identification, arguing that the procedure used by Det. Donnelly was unconstitutionally suggestive. (Id. 10.) The court found that the dispatcher was "sufficiently familiar" with petitioner's voice to "render her identification . . . confirmatory in nature." (Id. 12.) Thus, because the identification was based on familiarity and not on undue police suggestion, the court denied suppression of the voice identification. (Id.)
B. Evidentiary Rulings at Trial
During trial, petitioner sought to introduce an audiotape of a conversation between Tavares and Joseph Lisi, an investigator hired by petitioner. (Tr. 1266.) According to petitioner, Tavares told Lisi that she had only been shown a single photograph of petitioner on February 1, and not a photo array. (Id. 1268.) However, the court denied petitioner's application, finding that the audiotape was cumulative to other evidence already submitted by petitioner and not in dispute. (Id. 1270.)
In addition, after the first day of trial, the court was asked to inspect, in camera, a 31-page packet of "inter-office reports associated with homicide cases in the Bronx County D.A.'s Office." (Id. 97.) The court found that the reports were attorney work product, and returned them to the prosecutor. (Id. 99.)
C. Alleged Prosecutorial Misconduct
During trial, defense counsel objected to testimony elicited by the prosecutor from petitioner that she was detained pending trial. (Id. 1355.) At the ensuing colloquy, the prosecutor explained that he neither intended nor expected petitioner to present such testimony, and that the testimony had been inadvertently elicited. (Id. 1368.) After a mistrial motion was denied, the court agreed to give defense counsel's requested curative instruction that, although petitioner was in custody, that fact was irrelevant to the pending case. (Id. 1374-75, 1449-51.)
During trial, the prosecutor also elicited testimony from petitioner and another defense witness, Jose Tolentino, about petitioner's boyfriend, Andrew Peters. (Id. 1190, 1328-39, 1341, 1348-49, 1351, 1360.) Among other information, the prosecutor elicited testimony about Peters's alleged criminal involvement in car thefts and drug dealing. Defense counsel objected to some, but not all, of the prosecutor's questions about Peters; some of the objections were sustained (see, e.g., id. 1344, 1361), while others were overruled. (See, e.g., id. 1342.) In addition, defense counsel objected to a portion of the prosecutor's summation, in which the prosecutor connected Peters with petitioner and argued that Peters was the driving force behind the homicide. (Id. 1589.) The court overruled the objection. (Id. 1585.)
On October 24, 1997, Watkins was sentenced to twenty-five years to life in prison. On November 29, 2001, the Appellate Division affirmed the conviction and sentence, People v. Watkins, 733 N.Y.S.2d 70 (1st Dep't 2001), and on July 17, 2002, the New York Court of Appeals denied leave to appeal. 98 N.Y.2d 703 (2002). On October 10, 2003, Watkins collaterally attacked her conviction under N.Y. Crim. Proc. Law § 440.10. She argued, as she does here, that she received ineffective assistance of counsel when defense counsel did not adequately challenge the legality of her formal arrest pursuant to Payton v. New York, 445 U.S. 573 (1980). By order of September 14, 2004, the court denied the § 440.10 motion both on the merits and as procedurally barred. (Resp. Ex. 12.) The Appellate Division denied leave to appeal that decision on November 30, 2004. (Resp. Ex. 13.) Watkins filed the present petition for habeas corpus on December 8, 2004.*fn2
As an initial matter, the District Attorney argues that petitioner's claims must be dismissed as untimely because her petition was filed more than one year after her conviction became final. Petitioner argues that, upon application of the three-day extension provided by Federal Rule of Civil Procedure 6(e), her petition was timely. Because the petition lacks merit, it is unnecessary to decide whether the petition was timely or determine whether Rule 6(e) is applicable under the circumstances presented here.
A prisoner challenging the constitutionality of her state conviction must file her federal habeas corpus petition within one year of her conviction's becoming final "by the conclusion of direct review or the expiration of the time for seeking such review." See 28 U.S.C. § 2244(d)(1)(A).*fn3 However, if petitioner applies for "State post-conviction or other collateral review," the statute of limitations is tolled while the application is pending. Id. at (d)(2); see Carey v. Saffold, 536 U.S. 214 (2002). Therefore, Watkins was required to file her habeas application within one year from the date on which her judgment of conviction became final, excluding any time during which a state application for collateral review was pending.
The New York Court of Appeals denied Watkins leave to appeal her conviction on July 17, 2002. Watkins was allowed ninety days thereafter to seek certiorari from the U.S. Supreme Court. See Zarvela v. Artuz, No. 97 Civ. 2393, 1999 WL 1487595, at *1 (E.D.N.Y. Dec. 3, 1999) (citing Sup. Ct. R. 13(1)), rev'd on other grounds, 254 F.3d 374 (2d Cir. 2001).
Accordingly, her conviction became final on October 15, 2002. Watkins then filed a § 440.10 motion on October 10, 2003, 360 days after her conviction became final. The pendency of this collateral attack on her conviction tolled the statute of limitations until leave to appeal the denial of the motion was denied by the Appellate Division on November 30, 2004. Watkins filed the instant petition on December 8, 2004, eight days later. The District Attorney argues that Watkins's petition was thus filed 368 days after her conviction became final (excluding the tolled period), thereby rendering the petition untimely.
However, petitioner argues that Federal Rule of Civil Procedure 6(e) renders her petition timely. Rule 6(e) provides that "[w]henever a party must or may act within a prescribed period after service and service is made [by mail], 3 days are added after the prescribed period would otherwise expire under subdivision (a)." As Watkins was an inmate on November 30, 2004, when the Appellate Division denied leave to appeal the § 440 decision, she was presumably served with the Division's decision by mail; therefore, petitioner argues that "Federal Rule of Civil Procedure 6(e) granted [her] an additional three days in which to make a timely § 2254 filing." Zarvela, 1999 WL 1487595, at *1. Thus, because 360 days had accrued when Watkins filed her § 440 motion, petitioner argues that she had an additional five days after November 30, 2004, to file her habeas petition, plus three days to account for service by mail, bringing her total allotment to 368 days. Accordingly, Watkins argues that her petition was timely.
This Circuit has not definitively ruled on whether Rule 6(e) applies to the particular circumstances of this case. The plain language of Rule 6(e) does not appear to entitle a habeas petitioner to an additional three days of filing beyond the one-year statute of limitations. Rule 6(e) extends time periods that are determined by "a prescribed period after service." The habeas limitation period runs, insofar as relevant here, not from the time when petitioner is "serv[ed]" with any document, but from "the date on which the judgment becomes final." 28 U.S.C. § 2244(d)()1)(A). Moreover, Rule 6(e) in context does not appear to be concerned with statutes of limitations. As the First Circuit has noted, while Rule 6(e) "is centrally concerned with what a 'party' does . . . within the framework of an existing case," a statute of limitations "govern[s] the time for commencing [the] action." Donovan v. Maine, 276 F.3d 87, 91 (1st Cir. 2002) (emphasis supplied). See also Jackson v. Crosby, 375 F.3d 1291, 1294 n.5 (11th Cir. 2004) (Rule 6(e) cannot be applied when action must be taken within a certain period after entry of a judgment); Rouse v. Lee, 339 F.3d 238, 245-46 (4th Cir. 2003) ("[T]he mailbox rule does not extend the [§ 2254] limitations period.").
Although this Court finds the reasoning of these cases persuasive, disposing of this case on the basis of the statute of limitations appears imprudent. After all, the issue is not one-sided. Both then-District Judge Raggi in Zarvela*fn4 and the Third Circuit have found that Rule 6(e) provides a habeas petitioner an additional three days beyond the one-year statute of limitations to allow time for petitioner to "learn" the "factual predicate" for her petition, as it is only when petitioner receives such information is she able to "exercise due diligence" by filing her petition. Wilson v. Beard, 426 F.3d 653, 664 (3d Cir. 2005). See id. ("Due diligence does not require . . . psychic powers."). Thus, if this Court ruled that Watkins's petition was untimely, the fact that reasonable jurists could and do differ about this issue would require issuance of a certificate of appealability, to permit our Court of Appeals to address the statute of limitations issue. If the Second Circuit adopted the ...