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Mohsin v. Ebert

June 15, 2009


The opinion of the court was delivered by: Raymond J. Dearie United States District Judge

DEARIE, Chief Judge


Mohammed Mohsin petitioner for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The Court referred the petition to Magistrate Judge James Orenstein for a Report and Recommendation in accordance with 28 U.S.C. §636(b).

In his comprehensive, fifty-five page Report and Recommendation dated March 17, 2009, Magistrate Orenstein recommends that petitioner's application be denied. By Order dated March 27, 2009, the Court granted petitioner's motion for an extension of time to file his objections to the Report and Recommendation, which he timely filed in a statement dated May 4, 2009. The Objections expressly "address[]only certain aspects of the Report" but also incorporate in their entirety each of the arguments advanced in the 89-page brief submitted in support of the petition.

Accordingly, the Court has reviewed the matter de novo. Having studied the parties' submissions along with the trial transcript and the lengthy post-trial state court record, the Court now adopts the Report and Recommendation in its entirety and without qualification. A copy of the Report and Recommendation is annexed hereto as an addendum to this Memorandum and Order.


The thoroughness of Judge Orenstein's Report and Recommendation obviates the need to restate the factual background, or to engage in the needless formality of summarizing each of petitioner's six claims along with each capsule of Judge Orenstein's analysis in order to lodge the Court's piecemeal agreement. Still, because petitioner persists, in his Objections to the Report, in asserting that he is innocent of the crimes of which he was convicted, the Court explains here the features of the record and the Report that weigh most heavily and convincingly against the granting of habeas relief.

In his Objections, as in each of the state court proceedings occurring after his trial, petitioner relies principally on the victim's post-trial recantation of her trial testimony, along with several other witness statements and expert opinions also obtained after the trial. So equipped, petitioner seeks to cast himself as the victim of a criminal justice system stubbornly deaf to his plea of innocence. He writes:

It was not until March 1996 that Ms. Sufian implication petitioner in the September 13, 1995 fire. At trial she was the only witness linking him to it. Almost immediately after the trial she recanted her trial testimony. At petitioner's sentencing, she begged the court to release him. Moreover, for the next 12 years through two motions to vacate, Ms. Sufian has steadfastly maintained that petitioner had nothing to do with the fire and that she herself intentionally set it. Her assertions have been corroborated by others and by scientific evidence presented to the state courts in the motions to vacate. Yet to date no court has even ordered an evidentiary hearing to afford petitioner a reasonable opportunity to prove both his innocence and Ms. Sufian's perjury. (Obj. 4, emphasis added).

There is a fatal shortcoming, however, in petitioner's breathless plea. He was afforded precisely the opportunity he now claims had been withheld from him. That opportunity, of course, came in the form of his criminal trial, and the record shows that petitioner made abundant use of that opportunity by having vigorously challenged Sufian on several fronts. It is, in the end, immaterial that the jury did not learn of Sufian's recantations: contrary to petitioner's characterization of them, Sufian's recantations (along with the body of other post-trial statements purporting to corroborate them) are not of the "smoking gun" or "newly discovered" variety. Rather, the entire post-trial narrative reads as a more elaborate, more polished, and more strategically drafted version of the principal factual contentions and legal theories asserted at trial.

For example, although petitioner did not testify, his "version" of events was put before the jury through the testimony of Fire Marshal Roger Eckert and New York City Police Detective Miriam Piretti. Both testified that, shortly after the fire, petitioner stated that he had just left the apartment for work when, realizing he had forgotten his beeper, he returned, heard his girlfriend crying for help, summoned the landlord, and then broke down the apartment door and rescued her. T. 740, 853.

Similarly, cross-examination of Sufian exposed the same principal factual grounds for not crediting her testimony that now fuel petitioner's several perjury-based habeas claims. Among other things, the jury learned that Sufian had not implicated petitioner until six months after the fire and that she had initially told investigators that the fire resulted from an accident in the kitchen. The jury also learned of the turbulent amorous relationship between petitioner and Sufian, and heard both sides seek to explain actions of Sufian and petitioner as the result of that turbulence. Thus, the jury learned that Sufian had previously faked a suicide attempt in order to secure petitioner's sympathy and that she blamed the fire on him only after he rebuffed her when she tried to visit him at work. Indeed, the jury heard counsel expressly argue petitioner's "version" of what really happened, namely, that Sufian, suffering from what counsel described as a kind of "fatal attraction" to petitioner, set herself on fire because she could not accept petitioner's decision to leave her. Finally, the jury learned that Sufian had lied in a variety of other contexts, including that she sued the landlord for negligence in order to support her initial false claim that an explosion on the kitchen stove caused the fire, and that she misrepresented her age and marital status in a Family Court petition for support from petitioner.

The fact that the jury nonetheless elected to credit Sufian's account of how petitioner set her on fire-riveting even on the cold transcript-is all but dispositive for habeas purposes. As Judge Orenstein's summary of habeas principles on this point succinctly and accurately explains, petitioner's burden is heavy: to obtain relief here, he must show that the jury's decision to credit Sufian is "an unreasonable determination of the facts in light of the evidence presented" within the meaning of 28 U.S.C. § 2254(d), and must likewise overcome the statutory presumption of correctness that attaches to state court factual findings by presenting "clear and convincing evidence" to the contrary within the meaning of 28 U.S.C. § 2254(e)(1).*fn1 See Report at 27. Petitioner could not possibly meet this burden by relying solely on the contents of his trial record: the jury that witnessed Sufian's demeanor and was offered many reasons not to believe her nonetheless chose to credit her compelling account. That finding is virtually inviolate.

Petitioner also fails to rebut the presumption of factual correctness, or to establish the unreasonableness of the jury's verdict and ensuing appellate affirmance, by relying on the post-trial recantations. First, as already stated, the recantations do not offer substantively new "evidence" but merely attempt to trigger a post-hoc, re-assessment of Sufian's credibility. Second, the state court that presided over petitioner's trial has reviewed those recantations and refused to credit them. See 330 Motion, Memorandum Decision at 2, 3 (recantation "inherently unreliable"); First 440 Motion, Memorandum Decision at 11 (recantation inherently suspect; Sufian's various accounts internally inconsistent). Of course petitioner's second 440 motion then sought to challenge those credibility findings by submitting still later-generated witness statements and expert affidavits purporting to corroborate the recantations. But nothing in those papers reveals those new statements to have been unavailable to petitioner at the time of his trial or, for that matter, at the time he made his 330 Motion or his First 440 Motion. More fundamentally, the succession of ...

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