The opinion of the court was delivered by: John Gleeson, United States District Judge
Pro se petitioner Alvin McLean moves pursuant to Fed. R. Civ. P. 60(b) to vacate the judgment denying his petition for a writ of habeas corpus on the ground that the judgment was procured by fraud on the Court. For the reasons stated below, McLean's motion is denied.
In August 1987, fifteen-year-old James Garcia was staying with his friend Andrew Garret in the basement of a single-family house in Queens, New York. Both Garret and Garcia were working for Filmore Gayle, known as "Phil," and Tyrone Lawrence, known as "Tee." Phil and Tee had a marijuana distribution organization, called "Pillow," and both had formerly belonged to a rival marijuana distribution organization called "Slice." On the night of August 3, 1987, McLean and Garfield Wright, a member of Slice, entered the basement where Garcia and Garret were staying, shot Garret and Garcia, and took money from Garret's pocket. Garret died, and Garcia was gravely injured.
In support of its case against McLean, the government relied on Garcia's testimony about the events of August 3, 1987. The defense's theory of the case was that Garret and Garcia were shot by Wright and the head of Slice, Peter Young, who was also known as "Mack." In support of this theory, McLean offered the testimony of Mack's younger brother, Jeffrey Young, as well as the testimony of Wright and Tee, who stated that McLean was not a member of Slice and that Mack was responsible for the shootings.
On November 19, 1993, McLean was convicted by a jury in New York Supreme Court, Queens County, of murder in the second degree, attempted murder in the second degree, robbery in the first degree, assault in the first degree, and two counts each of criminal use of a firearm in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. McLean appealed the judgment of conviction to the Appellate Division, Second Department, but the conviction was affirmed. People v. McLean (McLean I), 640 N.Y.S.2d 265 (2d Dep't 1996). On June 20, 1996, the New York Court of Appeals denied McLean's application for leave to appeal. People v. McLean (McLean II), 88 N.Y.2d 938 (1996).
On June 19, 1997, McLean filed a petition for a writ of habeas corpus in this Court. McLean v. McGinnis (McLean III), 29 F. Supp. 2d 83 (E.D.N.Y. 1998). McLean argued that the trial court erroneously precluded him from introducing (1) testimony by Tee that Garcia had identified a photograph of Mack as one of the shooters and had described the second shooter as a light-skinned Jamaican man with a gold tooth; (2) evidence that a non-testifying police officer wrote in a police report that the detective who interviewed Garcia had told him that Garcia said that "another guy was with Slice;" (3) testimony that one of the detectives on the case had a nickname within Slice and had received money from Mack; (4) an alleged confession by Mack to his brother. Also, McLean argued that a videotape of Wright's statements was improperly introduced into evidence, and the trial court improperly refused to direct the jury that it was introduced as impeachment evidence.
In a memorandum and order dated October 21, 1998, I denied the petition, finding that the trial court erred only with respect to its preclusion of Tee's testimony, but that the error was harmless. McLean III, 29 F. Supp. 2d at 98-99. I issued a certificate of appealability on the question whether the preclusion of Tee's testimony deprived McLean of a fair trial. Id. at 100. On August 20, 1999, the Court of Appeals affirmed. McLean v. McGinnis, 189 F.3d 461 (2d Cir. 1999). McLean's petition for a writ of certiorari to the Supreme Court was denied on December 6, 1999. McLean v. McGinnis,528 U.S. 1050 (1999).
On March 15, 2004, McLean filed an application for a writ of error coram nobis in the Appellate Division, Second Department, claiming he was denied the right to effective assistance of appellate counsel. The Appellate Division denied the motion on October 12, 2004, People v. McLean, 11 A.D.3d 565 (2d Dep't 2004), and the New York Court of Appeals denied his application for leave to appeal on December 28, 2004. People v. McLean, 4 N.Y.3d 746 (2004). He filed a second motion for coram nobis relief, claiming on a new ground that he was denied the right to effective assistance of appellate counsel. His motion was again denied by the Appellate Division on September 12, 2005, People v. McLean, 21 A.D.3d 970 (2d Dep't 2005), and on January 13, 2006, the New York Court of Appeals denied his application for leave to appeal. People v. McLean, 6 N.Y.3d 778 (2006).
On May 2, 2006, McLean moved to vacate his judgment of conviction pursuant to N.Y. Crim. Proc. Law § 440.10, arguing that (1) the State had failed to disclose to McLean prior assistance it had given to Garcia; (2) the prosecutor made knowing misrepresentations to the jury in his summation when he stated that Peter Young had died in prison in Nassau County and that the F.B.I. had no stake in McLean's conviction; (3) the court erred in denying McLean's request for disclosure of the FBI file on this case; (4) the State withheld Brady and/or Rosario material from McLean; (5) McLean was denied effective assistance of trial counsel; and (6) McLean was denied his right to a public trial when the court had his young children removed from the courtroom prior to the jury charge. The court denied his motion on July 14, 2006, People v. McLean, No. 5389/87 (N.Y. Sup. Ct. Jul. 24, 2006), and his application for leave to appeal to the Appellate Division was denied on October 24, 2006. People v. McLean, No. 2006-08597 (2d Dep't Oct. 24, 2006).
On May 24, 2007, McLean moved in the Court of Appeals for the Second Circuit to recall the mandate entered on August 20, 1999 on the ground that the judgment was obtained by fraud in that the State had knowingly and deliberately misrepresented to both the trial and appellate courts that Peter Young died in prison in Nassau County, when, according to McLean, Young did not die in prison. On June 28, 2007, the Court of ...