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Barnes v. Graham

May 20, 2009


The opinion of the court was delivered by: Robert P. Patterson, Jr. United States District Judge



On February 6, 2007, Frank Barnes ("Petitioner") brought this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his imprisonment for his convictions on February 25 and 26, 2002 of intentional murder in the second degree and felony murder following a jury trial in New York State Supreme Court, New York County. (Trial Transcript ("Tr.") 383, 397.) The Respondent answered the petition on July 19, 2007, and by letter dated September 13, 2007, Petitioner demonstrated to this Court his repeated efforts at trying to obtain a copy of his trial transcript. On September 24, 2007, the Pro Se Office in this Court mailed Petitioner a copy of his trial transcript. Although Petitioner was given until December 7, 2007 to reply to the Respondent, he has failed to file any reply papers.

Petitioner's conviction arose out of the homicide of David Burns on July 29, 1989, in the vestibule of Burns' apartment building at 622 West 114th Street in Manhattan. After police officers interviewed several witnesses in the days after the murder, their suspicion focused on Petitioner, but he had disappeared from the neighborhood where he had panhandled and slept for years. The officers were unable to locate him until he was arrested twelve years later.

After a jury found Petitioner guilty on both counts in February 2002, but prior to sentencing, Petitioner moved to set aside the jury's verdict pursuant to N.Y. C.P.L. Section 330.30, claiming, among other things, that the People had failed to comply with Brady v. Maryland, 373 U.S. 83 (1963) (Declaration of Vincent Rivellese, dated July 18, 2007 ("Rivellese Decl.") Ex. A.) After conducting a hearing, Justice Leslie Crocker Snyder denied Peititoner's motion in its entirety on December 2, 2002. On January 14, 2003, Justice Snyder sentenced Petitioner to two concurrent, indeterminate prison terms of 25 years to life.

On November 22, 2004, counsel for Petitioner moved to vacate his conviction pursuant to N.Y. C.P.L. Section 440.10, asserting that his trial counsel had rendered ineffective assistance by failing to impeach two of the People's witnesses with omissions and inconsistencies between their trial testimony and their prior statements to police officers. (Revellese Decl. Ex. D.) The People opposed the motion. (Revellese Decl. Ex. E.) In an opinion dated June 20, 2005, the Honorable John Cataldo denied Petitioner's motion. (Revellese Decl. Ex. F.) On September 1, 2005, the Honorable Richard T. Andrias of the Appellate Division, First Department, granted Petitioner permission to appeal from that decision and consolidated the Section 440.10 appeal with Petitioner's direct appeal.

On appeal to the Appellate Division, Petitioner claimed that the verdict was against the weight of the evidence, that Justice Snyder wrongly rejected his 330.30 Brady claim, and that Justice Cataldo wrongly denied his 440.10 motion asserting ineffective assistance of counsel. (Revellese Decl. Ex. G.) The People opposed. (Revellese Decl. Ex. H). Petitioner then filed a Reply Brief. (Revellese Decl. Ex. I.) On May 16, 2006, the Appellate Division, First Department, unanimously affirmed petitioner's conviction. See People v. Barnes, 29 A.D.3d 390 (1st Dep't 2006) (Revellese Decl. Ex. J.)

Petitioner's counsel sought leave to appeal to the New York Court of Appeals, which was denied by order dated July 24, 2006. People v. Barnes, 7 N.Y.3d 785 (2006) (Revellese Decl. Ex. L.)

In his pro se petition, Petitioner re-asserts the three claims he raised on direct review: 1) that his conviction must be set aside because the jury verdict was against the weight of the evidence; 2) that the trial prosecutor violated Brady v. Maryland, 373 U.S. 83 (1963) by failing to provide the defense with discovery at the trial stage; and 3) ineffective assistance of counsel. (Petition at 2.) For the reasons set forth below, the petition is denied.


Evidence at Trial

In July 1989, 32-year-old David Burns was a systems analyst living at 622 West 114th Street in Manhattan, mid-block between Broadway and Riverside Drive. (Tr. 62-63.) At the time, Burns was dating Paula Burg, who lived twelve blocks away, and the two frequently walked to each other's apartments. (Tr. 35-36, 38.)

On the evening of July 28, 1989, Mr. Burns left his job, went to the gym, and then went to Ms. Burg's apartment. (Tr. 37.) He left his gym bag at her apartment, and the couple went to a movie downtown. (Id.) Afterwards, Mr. Burns returned to his girlfriend's apartment to retrieve his gym bag, and he left around 1:00 or 1:15 in the early morning of July 29, 1989. (Tr. 38.) According to Ms. Burg's testimony at trial, it would take approximately twelve to fifteen minutes to walk from her apartment to Mr. Burns' apartment. (Id.)

Sergeant Michael Gill testified that he and his partner responded to a radio dispatch of "calls for help" at 622 West 114th Street around 1:30 a.m. on July 29, 1989. (Tr. 44.) Upon arriving at Mr. Burns' building, Sgt. Gill and his partner found Mr. Burns, wearing a suit, slumped in a corner of the vestibule with a large amount of blood coming from his chest. (Tr. 45.) Sgt. Gill asked Mr. Burns "Are you all right? Are you all right?" but did not receive any response. (Tr. 45.) A gym bag, a briefcase, and a set of keys lay on the floor next to Mr. Burns. (Tr. 45, 47-53, 58.) Sgt. Gill and another officer picked up Mr. Burns, put him in the back seat of a police car, and drove him to St. Luke's Hospital where he was pronounced dead. (Tr. 46.)

Patrick Queen, the editor of the alumni magazine at Columbia University, lived in Mr. Burns' building in July 1989, and he testified at trial that he had seen Petitioner "dozens" of times in the neighborhood. (Tr. 211, 213.) Petitioner was often asking for money, seated on the steps of the dormitory or of the church across the street, hanging out, talking with people, and sometimes "shouting at people passing by." (Tr. 214.) On the night of July 28-29, 1989, Mr. Queen came home by taxicab between midnight and 1:00 a.m. (Tr. 211-12.) He exited the taxicab on Broadway across the street from a Columbia University dormitory called Hogan Hall. (Tr. 212.) He saw Petitioner seated on a metal bar in front of the dormitory. (Tr. 212-213.) Petitioner began repeatedly begging Mr. Queen for money as soon as Mr. Queen exited the taxicab. (Tr. 215.) Mr. Queen politely refused to give Petitioner money, and Petitioner walked with him across the street toward Mr. Queen's apartment building. (Tr. 215.) Petitioner did not actually enter the apartment building with him. (Tr. 222, 229.) According to Mr. Queen, the outer door to the vestibule of the building did not require a key in the summer of 1989, but a key was required to enter the lobby. (Tr. 222-23.)

On cross-examination, Mr. Queen stated that being approached by Petitioner was "not a new experience," (Tr. 228), and that Petitioner eventually stopped asking for money. (Tr. 229.) He also testified on cross-examination that Petitioner never tried to grab any part of his body or his clothes, nor did he try to force Mr. Queen against a car or towards a building or into any place. (Tr. 229.) Mr. Queen stated that generally, there were other panhandlers in the vicinity of his apartment building late at night. (Tr. 227.)

After Mr. Queen's encounter with Petitioner, he went into his apartment immediately at the top of the stairway, one flight above the lobby. (Tr. 218-219.) Approximately half an hour after entering his apartment, Mr. Queen heard loud shouting with a sense of "urgency." (Tr. 219.) This was not the first time Mr. Queen heard shouting in his apartment building, but he went to his door to listen to determine if someone needed help. (Tr. 219.) By the time Mr. Queen got to his door, the shouting had ceased, and he assumed the conflict had been resolved. (Tr. 219.)

The next morning, Mr. Queen observed fingerprint dust throughout the lobby of his building. (Tr. 220.) He does not remember how he found out about Mr. Burns' homicide, but once he did, he called the police and told them about his encounter with Petitioner in the early morning of July 29, 1989. (Tr. 221.) After the night of the homicide, Mr. Queen did not see Petitioner again until the date of trial, although he lived at 622 West 114th Street for approximately one more year after the murder, and then he moved just around the block where he lived through the time of trial. (Tr. 230-31.)

Mr. James Salter was also a homeless panhandler and drug addict in the neighborhood of 233 West 114th Street in the summer of 1989, although he had been sober for several years at the time of Petitioner's trial in 2002. (Tr. 79-80, 84, 148.) In 1989, Salter knew petitioner as "Frankie the Rapper." (Tr. 80-81.) The two met in the mid-1980s at the Broadway Presbyterian soup kitchen, and in 1989 Salter frequently encountered petitioner there, as well as elsewhere in the neighborhood where they both "hung out" and slept (Broadway and Riverside Park between 110th and 116th Streets and in the area subway stations). (Tr. 72, 78-82, 149-50, 160, 172-74, 186.) By 1989, Petitioner and Salter's friendship had cooled; Salter felt that Petitioner was too "wild" and attracted too much police attention. (Tr. 84-85.) Consequently, Salter dissociated himself with Petitioner because Salter was "trying to.get high" and did not want to go to jail; however, through July 1989, Salter still regularly encountered Petitioner at the soup kitchen and panhandling elsewhere in the neighborhood. (Tr. 82-86.)

In the afternoon of Friday July 28, 1989, Salter ate a meal at the Broadway Presbyterian soup kitchen on 114th Street and Broadway. (Tr. 86-87.) Salter was not high, and he had not used drugs that day; he had used crack-cocaine that Thursday and for the two prior days. (Tr. 87, 188.) After his meal at the soup kitchen, Salter walked down 114th Street into Riverside Park, and he went to sleep on a bench approximately ten feet inside the park. (Tr. 86-88, 173-76.)

Between approximately 1:30 a.m. and 2:00 a.m. on July 29, 1984, Salter awoke at the sound of Petitioner "dashing past" him. (Tr. 88.) Petitioner was approximately twenty feet away from Salter, wearing a blood-stained white t-shirt, and mumbling, "I shouldn't have did it. I shouldn't have did it. He didn't have no money anyway." (Tr. 89-91.) Salter testified that Petitioner had a knife in his right hand straight out in front of him sticking up from his fist, but Salter did not remember what kind of knife it was. (Tr. 93.) Salter sat up on the bench and asked Petitioner "what are you talking about," at which point Petitioner "dashed off" South towards 110th Street. (Tr. 92, 94.) Salter then sat on the bench for about a minute, got up and walked away. (Tr. 94.) At the time, he thought he heard some sirens, and he saw police cars "zooming" toward 114th Street. (Tr. 94.)

After the early morning of July 29, 1989, Salter saw Petitioner only twice. (Tr. 95-97.) First, sometime in August 1989, Petitioner approached Salter at a D'Agostino's Supermarket in the neighborhood where Salter was "cashing cans." (Tr. 186-87.) Petitioner put his hand on Salter's shoulder and said, "I heard you was walking around here telling people that I killed somebody." (Tr. 186.) A few weeks later, Salter was asleep on a bench at the 103rd Street subway station when Petitioner approached him, along with a man Salter knew as Petitioner's brother. (Tr. 95-96.) Peitioner displayed a six or seven-inch knife, stated "something [per]taining to somebody getting killed," and told Salter, "When the train comes, jump in front of it." (Tr. 95-96.) Petitioner's brother reached into his pocket, but Salter "dodge[d] them" by jumping onto the subway tracks and running to 110th Street. (Tr. 97.) Soon after that incident, on August 26, 1989, Salter voluntarily went to the precinct and spoke to a detective about Petitioner. (Tr. 97-99.) The detective put Salter's statement in writing and Salter signed it. (Tr. 97-101.)

At trial, Salter admitted that he has numerous drug and theft related criminal convictions, and that he used "all drugs-cocaine, crack, heroin, and alcohol" for about twenty years. (Tr. 69, 75-78, 145.) He also admitted that he had been arrested on numerous occasions for possession of drugs or drug paraphernalia, and that on one occasion he gave the officers a false name. (Tr. 154-60.) Of his drug use at that time, Salter testified, "after a three, four day binge, I would sleep for approximately a day or two. As long as I had some food. The only time I got up was to get some food." (Tr. 152.) Salter had been using drugs for the three days prior to July 28-29, 1989, the night when he saw Petitioner with the knife, and he used drugs again in the days following. (Tr. 173-74, 183-84.) At the time of his trial testimony, Salter had been "clean" from drugs for approximately five years, and since that time, he held numerous jobs for security companies. (Tr. 69, 71-72.)

Christopher Fay testified that, since 1983 or 1984, he had been working in various capacities at Columbia Presbyterian Church, which is located at the corner of Broadway and 114th Street in Manhattan, across the street from Burns' building. (Tr. 205.) He began working as sexton as the church, and then in 1992 became the executive director of a program for the homeless. (Tr. 205-6.) According to Fay, Petitioner spent a "great deal of time" at the soup kitchen and in that neighborhood from 1985 through July 1989, and Fay spoke with Petitioner frequently during that period. (Tr. 207-08.) During that time, Petitioner would "insistently" panhandle at the corner of Broadway and 114th Street, and Fay came to regard it as "Frank's spot." (Tr. 207-08.) At one point, Fay banned Petitioner from the soup kitchen because of Petitioner's "behavioral issues." (Tr. 207.)

After Mr. Burns' homicide, Fay did not see Petitioner in the neighborhood. (Tr. 208-9.) The trial was the first time Fay saw Petitioner in person since 1989. (Tr. 209.)

At trial, Dr. Mark Flomenbaum, a forensic pathologist and First Deputy Medical Examiner for the City of New York, explained the injuries sustained by Burns and the cause of death.*fn1 (Tr. 107-112, 115.) Burns had one stab wound to the left side of his chest, over his heart. (Tr. 114, 121.) The knife had penetrated Burns' chest at a 45-degree upward angle, from right to left, toward his left shoulder. (Tr. 121-23, 129.) The angle of the wound indicated that Burns was turning away from the knife when he was stabbed. (Tr. 132.) The assailant then partially withdrew the knife and plunged it in again through the same hole, which left a second track internally. (Tr. 114, 124, 129, 135.) In other words, the assailant double-thrusted the knife through one stab wound, inflicting two internal injuries in a "Y" or "fork" shape. (Tr. 114, 122-24.) ...

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