The opinion of the court was delivered by: John Gleeson, United States District Judge
Kevin Jackson, a prisoner in the custody of the Clinton Correctional Facility pursuant to a judgment of the New York State Supreme Court, Queens County, petitions for a writ of habeas corpus under 28 U.S.C. § 2254. Jackson submitted his petition pro se, and his counsel has submitted a supplemental brief. Jackson challenges his conviction by a jury of two counts of murder in the second degree, in violation of N.Y. Penal Law § 125.25(1), and two counts of criminal possession of a weapon in the second degree, in violation of N.Y. Penal Law § 265.03(2).
Jackson asks for habeas relief on the following grounds: (1) the trial court erroneously precluded certain testimony; (2) the trial court failed to give a missing witness charge as to two witnesses; (3) the trial court limited defense counsel's comments in summation about a missing witness; (4) the trial court restricted certain lines of questioning by defense counsel on cross-examination; (5) the trial court erroneously admitted certain out-of-court statements by David Harrison identifying Jackson as the killer of Richard Harrison; (6) the trial court erroneously precluded Jackson from impeaching those out-of-court statements; (7) the prosecution failed to disclose certain Brady information; (8) the prosecutor committed misconduct in summation; (9) there was insufficient evidence on which to convict Jackson of the murder of Earl Hicks; (10) the assistance of Jackson's trial counsel was constitutionally ineffective; and (11) the assistance of Jackson's appellate counsel was constitutionally ineffective. For the reasons set forth below, the petition is denied.
1. The Murder of Richard Harrison
The prosecution's evidence at trial established that on November 1, 1989 at almost ten o'clock in the morning, Jackson shot Richard Harrison several times, killing him. Jackson fled the scene in a car. Christopher Lloyd, after hearing the shots, left his home and saw Harrison on the ground. He also saw Louise Thomas, a passer-by, administering first aid to Harrison.
These facts were established in part through David Harrison, the victim's brother, who testified that he heard three gunshots and then heard Lloyd say, "I don't believe it. I can't believe it. He just shot Rich . . . . Kevin Jackson just shot Rich." R. 551-52. David Harrison then saw his brother's body in the street, and called 911. David Harrison also testified that Lloyd said the vehicle he saw leaving the scene of Richard Harrison's murder was "[a] gray Jetta, four-door, [with] tinted windows and Illinois plates." R. 646.
The prosecution also introduced the tape of a 911 call by Lloyd, in which Lloyd identified Jackson as Richard Harrison's killer. Lloyd did not testify at trial, and the trial court precluded Jackson from offering certain statements by Lloyd to Detective Gerald Shisco to impeach Lloyd's statements on the 911 tape. In addition, Rolf Sylver testified that Jackson admitted to him that he had killed Richard Harrison, that Lloyd had witnessed the murder, and that Jackson was paying Lloyd to remain silent about the murder.
Edmond Kalbfleish, a supervisor at a construction site for Banta Homes, testified that Jackson requested his name be put in the site's log book as an indication that he performed work at the site on November 1, 1989 from 7:30 a.m. until 3:30 p.m. According to Kalbfleish, Jackson did not actually work during that time, but Kalbfleish added his name to the log book anyway.
2. The Murder of Earl Hicks
The prosecution's evidence also established that on October 23, 1991, Jackson argued and physically fought with a business competitor, Earl Hicks. Two days later, at Jackson's direction, Jackson's employee, "Little Just," shot and killed Hicks. Jackson was in a business meeting during the shooting. Sylver testified that, while leaving that meeting, Jackson told him he had directed Little Just to kill Hicks, and that Jackson had arranged the business meeting to create an alibi. (Another prosecution witness, Albert DiGiantomasso, testified that he had set up the October 25, 1991 meeting.) Sylver also testified that Jackson received two pages, one during the meeting and one afterward. According to Sylver, Jackson remarked that the first page indicated that Little Just had shot Hicks, and the second page meant Little Just had gotten away safely. Sylver did not remember exactly when the second page occurred, but testified that it occurred either while he and Jackson were leaving the meeting, while they were driving back to Jackson's office, or while they were eating at a restaurant. Sylver also testified that Jackson said he had instructed Little Just to kill Hicks in exchange for Jackson's car.
An employee for the New York State Department of Motor Vehicles ("DMV"), the only witness called by the defense at trial, testified that on August 1, 1989 Jackson had registered his grey four-door Volkswagen in New York.
4. The Verdictand Sentence
As mentioned above, the jury found Jackson guilty of two counts of murder in the second degree and two counts of criminal possession of a weapon in the second degree. The trial court sentenced Jackson to consecutive indeterminate prison terms of 25 years to life for the murder of Richard Harrison and 20 years to life for the murder of Earl Hicks. The court also sentenced Jackson to concurrent indeterminate prison terms of seven to 14 years for the weapon-possession counts.
B. Subsequent Proceedings
Jackson filed a timely appeal of his convictions to the Appellate Division, Second Department, and raised nine grounds for relief: (1) the trial court improperly refused to issue a material witness order compelling Detective Shisco, who had since retired, to testify; (2) the trial court improperly refused to give a missing witness charge as to Lloyd and Shisco; (3) the prosecution improperly vouched for its witnesses during summation and improperly appealed to the jury's emotions; (4) the trial court prohibited Jackson from commenting during summation on the prosecution's failure to call certain witnesses; (5) the trial court improperly allowed Lloyd's 911 call into evidence as an excited utterance; (6) the trial court wrongfully denied the Jackson the opportunity to present favorable evidence; (7) the prosecution failed to disclose Brady and Rosario information; (8) the restrictions placed on defense counsel by the trial court rendered counsel's performance ineffective; and (9) there was insufficient evidence to support Jackson's conviction of the murder of Hicks.
Jackson's pro se supplemental brief raised the following claims: (1) the trial court violated Jackson's Confrontation Clause rights by improperly precluding him from introducing into evidence a police report and a taped interview of Lloyd to impeach Lloyd's statement to the 911 operator that he saw Jackson shoot Richard Harrison; (2) the prosecution committed Brady and Rosario violations when it failed to disclose the information -- allegedly contained in Jackson's pre-sentence report -- that Lloyd saw "a Rasti" shoot Harrison; (3) the trial court interfered with defense counsel's summation by precluding him from commenting on the absence of certain witnesses; and (4) there was insufficient evidence to establish that Jackson acted in concert with the shooter of Hicks.
On October 9, 2001, the Appellate Division affirmed the convictions. It specifically rejected the claims as to Shisco, finding that the claimed error in failing to issue a material witness order was unpreserved and the jury charge issue was without merit. The court held that the "remaining contentions, including those raised in [Jackson's] supplemental pro se brief" were either unpreserved or without merit. People v. Jackson, 731 N.Y.S.2d 393 (2d Dep't 2001). The New York State Court of Appeals denied leave to appeal on January 22, 2002. People v. Jackson, 97 N.Y.2d 705 (2002).
On April 7, 2003, Jackson filed his original petition with this Court. On June 3, 2003, he moved to stay the petition so he could exhaust certain claims. I granted that motion on June 4, 2003.
On June 15, 2003, Jackson petitioned the state court for a writ of error coram nobis on the ground that he was denied the effective assistance of appellate counsel. Specifically, Jackson claimed that counsel failed to argue that the trial court violated the Confrontation Clause and committed reversible error when it admitted, through David Harrison, Lloyd's statement that Jackson shot Richard Harrison, and when it allowed the prosecution to play the tape containing Lloyd's similar statement to the 911 operator. The Appellate Division denied Jackson's application on October 6, 2003. People v. Jackson, 765 N.Y.S.2d 280 (2d Dep't 2003). The Court of Appeals denied leave to appeal on December 29, 2003. People v. Jackson, 1 N.Y.3d 574 (2003).
On January 13, 2004, Jackson filed a motion pursuant to N.Y. Crim. Proc. § 440.10 to vacate the trial court's judgment on the following grounds, among others: (1) the admission of Lloyd's statements to David Harrison and the 911 operator violated Jackson's rights under the Confrontation Clause; (2) Jackson's pre-trial counsel was ineffective because he (a) failed to inform Jackson about a pre-trial plea offer, (b) failed to give Jackson advice about plea negotiations, (c) did not explain potential sentencing possibilities to Jackson, and (d) had a conflict of interest with Jackson during his representation; and (3) Jackson's trial counsel was ineffective because he (a) failed to follow through on the defense promised at the beginning of the case, (b) failed to object to the introduction of the 911 tape containing Lloyd's statement, and (c) did not interview several potential defense witnesses. On June 30, 2006, the New York State Supreme Court denied Jackson's motion to vacate judgment, People v. Jackson, 824 N.Y.S.2d 765 (N.Y. Sup. Ct. 2006) (unpublished table opinion), and on November 6, 2006 the Appellate Division denied Jackson's motion for leave to appeal that decision. People v. Jackson, No. 2006-08596 (2d Dep't Nov. 6, 2006) (Rivera, J.).