The opinion of the court was delivered by: James K. Singleton, Jr. Senior United States District Judge
MEMORANDUM-DECISION AND ORDER
Jalone Davis, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2001 judgment of conviction entered in the Albany County Court on charges of second degree murder and second degree possession of a weapon. Petitioner claims that he was denied a fair trial due to the prosecution's failure to disclose Brady material and the trial court's failure to give a missing witness charge to the jury. Petitioner also claims that his statement to the police was involuntary and should have been suppressed, identification evidence was improperly admitted, the evidence adduced at trial was legally insufficient to support the verdict, and that his trial counsel rendered ineffective assistance when he failed to object to the trial court's failure to give a missing witness charge. See Docket Nos. 1 (Pet.); 13 (Mot. to amend); 19 (Order granting mot. to amend in part). The Government has filed a Response. See Docket Nos. 8 (Response); 9 (Mem.); 14 (Resp. to motion to amend). Petitioner filed a traverse and a supplemental memorandum of law. Docket Nos. 18 (Traverse); 20 (Supp. mem.).
Petitioner was indicted in Albany County Court for the August 2000 murder of Leroy Cancer. At trial, the People sought to prove that Petitioner shot Cancer on a street in Albany in retaliation for the earlier gang-related killing of Petitioner's friend. In support of this argument, the People introduced a signed confession along with the testimony of an acquaintance to whom Petitioner had confessed, and the testimony of several other witnesses placing Petitioner in close proximity to the shooting. Petitioner testified, denying any involvement and claiming the confession was coerced. The jury returned a verdict of guilty, and Petitioner was sentenced to concurrent prison terms of 25 years to life for murder and 15 years for criminal possession of a weapon.
With the exception of his ineffective assistance of counsel claim, Petitioner raised all of his current claims on direct review. See Docket No. 10, Attach. 2. The Appellate Division affirmed the convictions in a reasoned decision. People v. Davis, 18 A.D.3d 1016, 1016-17 (N.Y. App. Div. 3d Dep't 2005) (available in the record at Docket No. 10, Attach. 4). The Court of Appeals denied review on August 15, 2005. People v. Davis, 5 N.Y.3d 805 (2005) (available in the record at Docket No. 10, Attach. 6). Petitioner moved for reargument/reconsideration in the Appellate Division on July 18, 2006, which was denied on August 31, 2006. See Docket No. 10, Attach. 7.
On February 15, 2007, Petitioner filed a motion to vacate the judgment, pursuant to New York Criminal Procedure Law ("CPL") § 440.10. He argued his trial counsel rendered ineffective assistance by: (1) failing to object when the court permitted a witness to assert the Fifth Amendment privilege; (2) failing to object when the court refused to give a missing witness charge; and (3) failed to properly investigate Detective Kennedy's alleged prior misconduct. He also argued the People had committed a Brady violation by failing to disclose information regarding prior allegations of coerced confessions by Detective Kennedy in other cases. Docket No. 10, Attach. 8.
The trial court denied the motion, finding the ineffective assistance claims meritless and that the allegations of misconduct by Kennedy in an unrelated 1991 investigation did not constitute Brady material. Docket No. 10, Attach. 10. Leave to appeal was denied May 4, 2007. Docket No. 10, Attach. 12.
Petitioner filed the instant petition on November 16, 2006. Docket No. 1. The Government filed a response disputing Petitioner's claims. Docket Nos. 8 (Resp.); 9 (Mem.). The original petition was deemed amended to include Petitioner's claim that trial counsel was ineffective for failing to object when the trial court did not give a missing witness charge. Docket Nos. 13 (Mot. to amend); 19 (Order granting mot. to amend in part). At that time, the Court also deemed Respondent's letter opposition at Docket No. 14 to be a supplemental response to the newly added claim. Docket No. 19 at 6. Petitioner filed a traverse and a supplemental memorandum. Docket Nos. 18 (Traverse); 20 (Supp. mem.).
Because the instant petition was filed after April 24, 1996, any claim therein that was adjudicated by a state court on the merits is governed by the deferential standard of review set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). A decision is adjudicated "on the merits" when it finally resolves the claim, with res judicata effect, based on substantive rather than procedural grounds. Id. at 311-12. This is so, "even if the state court does not explicitly refer to either the federal claim or to relevant federal case law." Id. at 312.
Under the deferential standard of review imposed by AEDPA, a writ of habeas corpus shall not be granted unless the state adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). A state court decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Court] has on a set of materially indistinguishable facts."
Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision involves an unreasonable application of Supreme Court case law if it "identifies the correct governing legal principle from [the Court's] decisions but unreasonably applies that principle to the particular facts of [a] prisoner's case." Id. To qualify as "unreasonable," it must be objectively unreasonable, a substantially higher threshold than merely incorrect. Schriro v. Landrigan, 550 U.S. 465, 127 S.Ct. 1933, 1939 (2007).
The Supreme Court has also explained that clearly established Federal law "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision." Williams, 529 U.S. at 412. In the absence of a holding of the Supreme Court regarding the issue presented on habeas review, "it cannot be said that the state court unreasonably applied clearly established Federal law." Carey v. Musladin, 549 U.S. 70, 77, 127 S.Ct. 649, 654 (2006) (internal quotation marks removed). Finally, the standard under which this Court must assess the prejudicial impact of constitutional error in a state-court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome. Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 2328 (2007) (adopting the standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 637--38 (1993)).
In applying this standard, this Court reviews the last reasoned decision by a state court. Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000). The Court presumes that the state court's findings of fact are correct, unless the petitioner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). The presumption of correctness applies to findings by both state trial and appellate courts. Whitaker v. Meachum, 123 F.3d 714, 715 n.1 (2d Cir. 1997).
Claims that have not been adjudicated by a state court on the merits are reviewed de novo based on the record before the Court. See Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003).
I - Failure to disclose statement of Andre Blakemore
Petitioner contends he was denied a fair trial by the prosecution's failure to turn over the written statement of Andre Blakemore in violation of Brady v. Maryland, 373 U.S. 83 (1963). Docket No. 1 at 7. Petitioner raised this claim on direct appeal, although it was primarily presented as a claim that the prosecution had violated the related state-law duty of disclosure under People v. Rosario, 9 N.Y.2d 286 (1961). Docket No. 10, Attach. 2 at 25. The Appellate Division found that the adverse inference charge given by the trial court was a sufficient sanction for the Rosario violation, denying Petitioner's claim on the merits. People v. Davis, 18 A.D.3d at 1019. The Appellate Division did not discuss the Brady aspect of the claim. Id. In such a situation, this Court asks "whether the state court's ultimate decision was an 'unreasonable application' of clearly established Supreme Court precedent." See Sellan, 261 F.3d at 311-12.
Brady and its progeny require the Government to disclose material information that is "favorable to the accused, either because it is exculpatory, or because it is impeaching." Strickler v. Greene, 527 U.S. 263, 281-82 (1999). A Brady violation occurs only where there is a "reasonable probability" that a different verdict would have resulted from disclosure of the information that the defendant claims was suppressed. Id. at 281. That is, "a constitutional error occurs, and the conviction must be reversed, only if the evidence is material in the sense that its suppression undermines confidence in the outcome of the trial." United States v. Bagley, 473 U.S. 667, 678 (1985). The failure to preserve "potentially useful evidence" does not violate due process "unless a criminal defendant can show bad faith on the part of the police." Youngblood v. Arizona, 488 U.S. 51, 58 (1988) (emphasis added); see also Illinois v. Fisher, 540 U.S. 544, 547--48 (2004) (per curiam) (applying Youngblood).
The Appellate Court summarized the factual background of this claim:
During the investigation of the crime, Kennedy interviewed and obtained a written statement from a 15-year-old who stated that he had seen defendant carrying a handgun and running from the area of the shooting shortly after it occurred. Kennedy acknowledged at a Rosario hearing conducted by Supreme Court that he lost the written statement. He explained that the teenage witness lived in the neighborhood where the killing occurred and the witness was concerned about his safety if his cooperation with police became known. Kennedy thus placed the statement in a sealed envelope in his desk drawer and, in violation of normal police procedure, did not put a copy in the central file. Thereafter, Kennedy was out of work for several months following back surgery and, when he returned, his desk had been cleaned and the statement was missing. Despite continued searches up to the date of trial, Kennedy was unable to locate the statement. At trial, the teenage witness testified and was cross-examined. Supreme Court instructed the jury after Kennedy's trial ...