The opinion of the court was delivered by: James K. Singleton, Jr. Senior United States District Judge
MEMORANDUM-DECISION AND ORDER
Reggie Young, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 1997 judgment of conviction entered in the County Court of Oneida County on one count of Murder in the Second Degree, one count of Assault in the Second Degree, one count of Reckless Endangerment in the First Degree, two counts of Criminal Possession of a Weapon in the Second Degree, and two counts of Criminal Possession of a Weapon in the Third Degree. He seeks relief on the grounds that his due process rights were violated by:
(1) the prosecution's failure to disclose certain Brady/Giglio material; (2) the prosecution's subordination and use of false testimony; (3) the prosecution's misconduct during summation; (4) ineffective assistance of trial counsel; and (5) the state court's rejection of his post-conviction evidence. Docket No. 55 (Amended Pet. and Mem.). The Government has filed an Answer disputing all of Petitioner's grounds for relief. Docket Nos. 64 (Answer); 66 (Mem.). Petitioner has filed a Traverse. Docket No. 69.
On February 22, 1996, Petitioner was indicted for the murder of George Bullock (a.k.a. "Gucci"), the assault of Tyrone Mitchell, and other related crimes. Docket No. 65, Attach. 1. Petitioner was tried before a jury in the County Court, Oneida County between February 27th and March 7th, 1997. See Docket No. 65, Attachs. 40 and 41.
The prosecution's key witness, Tyrone Mitchell, testified that he moved to Utica in the summer of 1995 to deal drugs for Clayton Johnson (a.k.a. Sty) and Johnson's girlfriend, Stacy. Docket No. 65, Attach. 40 at 196-200. Mitchell was 17 years old when he moved to Utica and 18 at the time of the murder. Id. at 197. During his time in Utica, Mitchell had become acquainted with Petitioner, Bullock, and Randy Hutchinson at a local bar called Geno's. Id. at 201-06. On the evening of January 15, 1996, Mitchell was at Geno's, where he saw Petitioner and Bullock argue. Id. at 20-08. While he was not entirely sure what they were arguing about, he heard Petitioner ask "Where's my shit at?" and observed Bullock a few minutes later throw up his hands and say "Fuck this" right before leaving the bar. Id. at 208.
The next evening Mitchell was hanging out at Geno's. Id. at 212. Although Petitioner was also present at the bar, they neither conversed nor sat together. Id. Around 10:00 or 10:15 p.m.,*fn1 Bullock pulled up in front of Geno's in his girlfriend's car. Id. at 203-04, 216, 260. Mitchell went outside to speak with Bullock, who said he was there to pick up Petitioner. Id. at 216-18, 284-85. Petitioner followed Mitchell outside a few moments later. Id. Petitioner and Bullock had a brief conversation and then all three got into the car. Id. at 218-19. Mitchell testified he got in the back passenger seat to go for a ride because he was bored. Id. at 222.
As they drove away from Geno's, Petitioner, who was sitting in the front passenger seat, began giving Bullock directions to Petitioner's girlfriend's house. Id at 221-23. While they were driving down Whitesboro Street, Petitioner told Bullock to slow down. Id. 223-24. When Bullock slowed down to look at the houses, Petitioner shot Bullock in the right side of his head with a .22 caliber revolver. Id. at 224, 292-94. Bullock grabbed his own head and said "Oh shit. What the fuck." Id. at 224-25. After being shot a second time, Bullock turned around in his seat and "jumped" back into Mitchell's lap, such that his lower body was still in the driver's seat but his upper body was in Mitchell's lap. Id. at 225-26. Bullock "hugged" Mitchell's waist saying "Don't let him kill me." Id. at 225. Mitchell struggled to get out from under Bullock's upper body while Petitioner turned around in his seat and continued to shoot Bullock. Id. at 226-28, 247, 298. At some point Petitioner switched to a larger caliber pistol and continued firing. Id. One of the shots from the second pistol struck Mitchell in the left calf. Id. at 230.
When Petitioner had finished shooting Bullock, he got out of the car and ran. Id. at 232. Mitchell saw Petitioner run into an alley and then back out in another direction. Id. at 232-33. The car had crashed into a snow bank during the shooting. Id. at 234. Mitchell managed to get out from under Bullock and forced the back passenger door open into the snow bank. Id. at 233-34. Mitchell got out and ran in the opposite direction, eventually running into Sty. Id. at 235-36. Sty and his girlfriend Stacy took Mitchell to a hospital in Rome, where Mitchell was treated for his gunshot wound. Id. at 239-40.
Mitchell initially told Stacy, the hospital staff, and the police that he was shot during an altercation with three men who tried to rob him. Id. at 239-41. When it became apparent that the police did not believe the initial story, Mitchell told them he had accidently shot himself at home. Id. at 243-45. He lied because he "didn't want nothing to do with it." Id. at 244. However, once police began asking questions about Bullock's murder, Mitchell told them the story he eventually related at trial. Id. at 245-46.
Mitchell related his story to the grand jury the day following the murder. Id. at 250-52. At that time he was unaware that transactional immunity applied and he did not have a deal with the prosecution. Id. at 250-51, 312-13. A few days later Mitchell left Utica and returned to New York City. Id. at 250-52. Over the next year, Mitchell was arrested and pled guilty to selling crack cocaine, possessing a firearm, and other drug related crimes. Id. at 253-57. When Mitchell was contacted by Oneida County prosecutors about testifying against Petitioner, he asked them to assist him in making parole in exchange for his testimony. Id. at 258-59. He testified the prosecution had offered only to write the parole board a letter about his cooperation. Id.
Several other witnesses testified to events that night, roughly corroborating the time-line suggested by Mitchell's testimony.
Jamie Nimey was driving down Whitesboro Street around 10:15 or 10:30 p.m. when he saw a car bounce off a snow bank and come to a stop. Id. at 179-80. He saw the occupants of the vehicle struggling and heard several gunshots before he sped off to the nearest police station, where he encountered Officer White. Id. at 181-83. It was approximately 10:34 p.m. when Officer White got into his patrol vehicle to follow Nimey back to the scene and radioed dispatch. Id. at 149-50.
Latrisha Jackson, who was Bullock's girlfriend and a very good friend of Petitioner's testified reluctantly about the events of the evening. See id. at 535-62. Although she could not recall the time at trial, she told the grand jury that she and Bullock had begun preparing a late dinner around 9:00 p.m. Id. at 545-51. While they were preparing dinner, Petitioner and Bullock spoke by phone, sometime around 9:30. See id. at 548, 552-62. Bullock left Jackson approximately 20 minutes later to pick Petitioner up for dinner.*fn2 Id. at 556-62. Some time after Bullock left, Jackson received a phone call from Petitioner asking her where Bullock was. Id. at 564. At trial she was not really sure when that phone call came, but indicated she wanted to say it was only 15 minutes after Bullock left. Id. at 564. However, she affirmed her grand jury testimony that she told Petitioner over the phone that Bullock had left "a long time ago." Id. She also affirmed that, with dinner sitting uneaten on the table, she had watched some portion of the news and then gone to bed with her son and drifted to sleep before Petitioner's call came. Id. at 564-66.
John Sigbieny, the owner of Geno's Tavern, testified that he remembered Petitioner leaving the tavern around 10:00 or 10:15 p.m. See id. at 589-92. Sigbieny also remembered Petitioner coming back in to sit at the bar, but could not say whether Petitioner came or went after that because he was busy. Id. Dale Shackleford, a bartender at Geno's Tavern, testified that there were only three patrons in the tavern when he arrived at 10:25 p.m. for his shift, and that Petitioner was not one of them. Id. at 606-09. Shackleford, also testified that Petitioner entered the tavern with Randy Hutchinson at 11:00 p.m. according to the tavern clock, which was approximately 15 minutes fast. Id. at 609-14. Petitioner and Hutchinson positioned themselves at the end of the bar near the pay phone, but Shackleford could not see if Petitioner used the phone from his vantage point. Id. at 610.
Mitchell's testimony was also largely corroborated by the physical evidence introduced at trial. Having performed the autopsy, examined the car, and studied photographs of Bullock's body as it was found in the car and the wound to Mitchell's left leg, Dr. Barbara Wolf opined that all of the wounds were consistent with bullets having been fired from the front passenger seat. Docket No. 65, Attach. 41 at 137-51. Further, she opined that the forensic evidence was inconsistent with the gunshots having been fired from the rear passenger seat. Id. Her conclusions were based on the wound tracks and the absence of blood spatter on or bullet holes in the front passenger compartment. Id. Paul Kish, an independent forensic consultant, came to the same conclusions after analyzing all the evidence and reconstructing the scene. Id. at 30-71. Kish further opined that the blood stains on Mitchell's pants and the gunshot wound to his left calf were only consistent with Mitchell being seated in the rear passenger seat at the time of the shooting. Id.
Mitchell's testimony was also corroborated by the testimony of a jail-house informant, Lance Croman. Croman testified that he and Petitioner were assigned to the same housing block in the Oneida County Jail for two days in October 1996. Docket No. 65, Attach. 40 at 627-30. Croman had known Petitioner for about three years because Petitioner had been involved with one of Croman's ex-girlfriends. Id. at 619-21. On Petitioner's first night in the housing block, Petitioner told Croman that Petitioner and his partner had robbed crack cocaine from "some Domincan," Petitioner's partner had "got greedy," and that Petitioner had killed his partner and left him for dead in a car. Id. at 630. The only detail Petitioner told Croman about the murder was that he had used a .38 caliber pistol, and that he was upset when had to get rid of it after the murder because he had just bought it. Id. at 631. The next day, Petitioner told Croman he had not been truthful. Id. Croman's testimony was given in exchange for a deal to transfer his probation out of the state. Id. at 626. He clearly testified that there was no deal regarding the burglary charges that were then pending against him.*fn3 Id. at 624-26.
The defense rested without presenting evidence. Docket No. 65, Attach. 41 at 205. Petitioner's counsel pointed to the holes in the evidence and argued during summation that the prosecution had failed to meet its burden. Counsel suggested that Mitchell and Sty had killed Bullock. He attacked the credibility of Mitchell and Croman. He worked extensively with the time-line, and argued that Petitioner could not possibly have killed Bullock and gotten back to Geno's by 10:45 p.m. without running seven-minute miles.
The prosecution summarized the evidence, witness by witness. She pointed out that Mitchell told his story to the grand jury within 24 hours of the incident, and argued that it was absurd to believe that a seventeen-year-old wannabe drug dealer with a tenth-grade education could craft a story that would eventually prove consistent with all the forensic evidence. She emphasized how the evidence came together and argued there was no reasonable doubt.
On March 7, 1997, the jury found Petitioner guilty on all counts presented.
1. Motion to Set Aside the Verdict Pursuant to C.P.L. § 330
Petitioner, through counsel, filed a motion to set aside the verdict pursuant to C.P.L. § 330.30. Docket No. 65, Attach. 3 (Ex. C). He argued that the trial judge had erred by not submitting an accomplice-in-fact instruction to the jury and that the cumulative impact of the prosecutor's misconduct deprived him of a fair trial. Id. Specifically, he alleged the prosecutor engaged in misconduct by: (1) improperly impeaching Sigbieny and Jackson with their grand jury testimony; (2) telling the jury that they would not receive an accomplice-in-fact instruction; (3) vouching for Mitchell and Croman's testimony; (4) suggesting an inference that Hutchinson had given Petitioner a ride on the night of the murder and that Mitchell and Croman were scared by Hutchinson's presence in the courtroom; and (5) comparing defense counsel's compensation to the compensation paid to the state's expert witnesses. Id. The motion was denied in an oral decision on April 21, 1997. Docket No. 65, Attach. 40 at 71-87.
2. First Motion to Vacate the Judgment Pursuant to § 440
On December 3, 1997, Petitioner filed a pro se motion to vacate the judgment pursuant to C.P.L. § 440.10. Docket No. 65, Attach 6 (Ex. F). Petitioner claimed that: (1) he had newly-discovered evidence to support his innocence; and (2) the prosecution violated Brady v. Maryland, 378 U.S. 83 (1963), by failing to disclose that Mitchell had slashed another inmate with a knife while he was in prison. Id. The newly-discovered evidence consisted of three affidavits of individuals, including Petitioner, claiming that Mitchell had personally confessed to them that he killed Bullock.
The state court initially refused to consider the motion because Petitioner had not filed the original affidavits, and one of the affidavits was not properly sworn. Docket No. 65, Attach. 10 (Ex. J). The state court subsequently denied the motion on the merits on the basis of an affidavit sworn by Mitchell denying that the allegations contained in the affidavits presented by Petitioner. Docket No. 65, Attach. 11 (Ex. K). As to the Brady claim, the Court credited the statement of the prosecutor that she was not aware of the prison disciplinary action and ruled that the prosecution had no obligation to seek disciplinary records from the prison system. Id. Further, the court found that the failure to disclose the disciplinary record did not affect the verdict as Mitchell's criminal history was fully explored at trial. Id.
Petitioner, through appellate counsel, filed an appellate brief with the New York State Appellate Division, Third Department. Docket No. 65, Attach. 12 (Ex. L). He argued reversal was warranted because: (1) the trial court had wrongly denied the accomplice-in-fact instruction; (2) the trial court had wrongly excluded Jackson's testimony about what Bullock had said regarding his criminal enterprises; (3) he was denied a fair trial by the cumulative impact of the prosecutor's misconduct; and (4) that his sentence was excessive. Id.
The Appellate Division unanimously affirmed Petitioner's conviction and sentence. People v. Young, 277 A.D.2d 910 (N.Y. App. Div. 2000) (found in the record at Docket No. 65, Attach 14 (Ex. N)). The court first concluded that there was no basis for the trial court to submit an accomplice-in-fact instruction, finding that "[t]here was no evidence presented from which the jury could reasonably infer that the witness participated in the offenses." Id. The court affirmed the decision to exclude Jackson's testimony as there is no right to submit proof that merely raises a suspicion that another committed the crime. Id. The court found that the prosecutorial misconduct was not so egregious as to deny Petitioner a fair trial. Id.
Petitioner applied for leave to appeal in the New York Court of Appeals, Docket No. 65, Attach. 15 (Ex. O), which was denied on May 23, 2001, People v. Young, 96 N.Y.2d 836 (2001) (found in the record at Docket No. 65, Attach. 16 (Ex. P)).
4. Original Federal Application for Habeas Corpus
Petitioner next filed an application for habeas corpus in the federal district court. Docket No. 1. The application, filed on August 22, 2002, was dated August 18, 2002. Id. at 6. Four grounds for relief were raised: (1) the trial court erred by denying an accomplice-in-fact instruction; (2) the trial court had wrongly excluded Jackson's testimony about what Bullock had said regarding his criminal enterprises; (3) he was denied a fair trial by the cumulative impact of the prosecutor's misconduct; and (4) the prosecution's use of perjured testimony, as evidenced by reports prepared by the Federal Bureau of Investigation ("FBI") following interviews with Mitchell in April and October 1997, violated Petitioner's due process rights. Id. at 8-9. The district court stayed the action to allow Petitioner to exhaust his state remedies by way of a second § 440 motion filed on February 5, 2003. Docket Nos. 13 (Order staying proceedings); 65, Attach. 17 (Ex. Q).
5. Second Motion to Vacate the Judgment Pursuant to § 440
Petitioner's second § 440 motion related to the claim that the prosecution had offered perjured testimony. In support of the motion, Petitioner filed interview reports prepared by the FBI for its post-trial interviews of Mitchell in April and October 1997. See Docket No. 65, Attachs. 18 (Ex. R) and 19 (Ex. S). The FBI reports make clear that Mitchell knew more about Randy Hutchinson and the Utica drug operation than he admitted at trial. Mitchell told the agents that:
(1) Sty had recruited him for Hutchinson's drug operation; (2) Hutchinson sent Bullock and maybe Petitioner to rob a Dominican drug spot; (3) Hutchinson was present during the argument between Bullock and Petitioner on January 15, 1996; (4) Hutchinson ordered Petitioner, who was the "enforcer" for the organization, to kill Bullock; and (5) Hutchinson and Petitioner tried to kill him (Mitchell) about a month after he testified before the grand jury. Id. Petitioner argued that the prosecutor violated his due process by using Mitchell's "perjured" testimony. Docket No. 65, Attach. 17 (Ex. Q). He also argued the FBI reports constituted newly discovered evidence that would change the result if a new trial were held, entitling him under New York law to a new trial. Id. at 18.
The state court denied the motion because the prosecutorial misconduct claim had been denied on the merits in his direct appeal, and there was sufficient information in the record to have brought his other claims at that time. Docket No. 65, Attach. 21 (Ex. U). On July 2, 2004, the Appellate ...