The opinion of the court was delivered by: Denise Cote, District Judge
Bruce King filed this petition for a writ of habeas corpus in 2002, challenging his conviction on robbery charges following trial in 1996. In a report of September 26, 2008, the Honorable Andrew Peck recommends that the petition be denied ("Report"). For the following reasons, the petition is denied.
As explained in great detail in the Report, which is incorporated by reference, King was convicted at trial of two robberies which took place on November 22 and December 3 of 1995 at two Martin Paint stores in Manhattan. King was not immediately arrested for those crimes, but he was arrested in connection with a robbery of a Martin Paint store in Queens on December 31, and then released. On January 2, 1996, King contacted the police and spoke with them for hours at a Queens precinct station, identifying his accomplices in the two Manhattan robberies without admitting his own involvement in the crimes. He was soon thereafter identified in line-ups by victims of both Manhattan robberies.
The November 22 robbery was committed by King and Carl Dade ("Dade"), both of whom wielded guns. King put his gun against the back of a stockman's neck and forced him to lie on the floor. The general manager Nathan Rivera and an assistant manager were held at gunpoint by Dade. Dade collected money from the registers and with Rivera's help emptied the store's lockbox. Rivera had a good view of King, who was standing seven feet away in a well lit room at one point during the robbery, and was able to identify him in the line-up and at trial.
When King and Dade entered the Martin Paint store on December 3, they were greeted by employee Fred Crosby, who got a good look at King at three different points during this robbery, one of them as King stood about three feet away. An accomplice, Andrew Williams ("Williams"), waited outside in a car. King went to the rear of the store, pulled out a gun, and confronted the store manager as he was opening the store's safe. King got about $8,000 in this robbery. Crosby identified King in a lineup and at trial.
As officers from the Manhattan Robbery Squad were visiting a Queens precinct on January 2, 1996, King called the precinct to protest that he didn't want the Queens robbery pinned on him and had information about a homicide case. When King came to the precinct the Manhattan officers told him that they wanted to talk to him about the Manhattan Martin Paint store robberies. King described men named "Williams," "Pops Dade," and "Jerry" during the course of the ensuing conversation, explaining that they had committed numerous robbers of Martin Paint stores in New York City. He explained that a man named "Chapman," who worked at Martin Paint, identified the stores that took in the most money and where the money was kept in each store. Later that day, King rode with the detectives to look for Williams and Dade.
The police arrested Williams and Dade on January 3, and arranged for separate line-ups for King, Dade and Williams.
Rivera identified King that day. Crosby identified King in a line-up on January 17 which King's attorney attended.
King's fiancée Jacklyn Charles and his brother Andrew Smith testified on his behalf at trial, in an effort to provide alibis for the November 22 robbery, but gave conflicting testimony on some points. In addition, the prosecutor cross-examined Charles about the statement she had made to detectives that she was afraid of King. The trial judge denied the defense motion for a mistrial based on this line of cross-examination.
In its rebuttal case, the state presented evidence that contradicted the alibi testimony and confirmed that Charles had told the police that she was terrified of King. Medical records and other testimony was offered to show that King had no difficulty walking, despite Charles' testimony that he had to hop with crutches or use a walking stick.
During summations, King requested the opportunity to testify. The judge allowed the defense case to be reopened, and King took the stand against his counsel's advice. Among other things, King explained that Charles had reminded him that he had spent time with her on November 22. He added that Williams periodically borrowed King's car and had once done so for a long time. King explained that he had visited a Martin Paint store in Queens on December 31 to price carpeting, and noticed that people ran out to look at his car. Later that day Williams asked King if he had gone to a Martin Paint store and explained that he had gotten into "a beef" with someone at the store while he was in King's car. Later, Williams explained that the police were looking for a black car that was involved in robberies, and King concluded that Williams had committed robberies while using King's car. King then called the police, and went to speak with them. He added that he had denied to them that he had loaned his car to anyone. After speaking with the police for several hours, they photographed him and he left. The next day, he was arrested, questioned about, inter alia, the Martin Paint store robberies after being advised of his Miranda rights, and released. On January 2, King spoke to Williams again and, based on that conversation, knew that Williams was involved in the robberies. King called the police and reported his conversation with Williams. He went to the precinct again, answered more questions about the robberies, and appeared in several line-ups. In a line-up of January 17, in which the trial testimony had indicated that a witness identified a suspect wearing the number 3, King testified that he in fact had been wearing the number 5.
When King was questioned on cross-examination about his prior convictions, he explained that they stemmed from his work as a confidential informant for the DEA.
In the second set of summations, the defense argued that King's prior convictions were all for petty crimes, unlike the charges at issue in the trial. As described in more detail below, the prosecutor described King as a career criminal and asked the jury to not let King "get away with it".
The jury convicted King of two counts of first degree robbery and one count of second degree robbery. On October 16, 1996, King was sentenced principally to two consecutive terms of twelve and one-half to twenty-five years' imprisonment.
The Report describes the post-conviction procedural history in detail. Of particular note, while the First Department affirmed the conviction on August 3, 2000, Justice Ernst H. Rosenberger dissented and recommended a remand for a new trial on the sole ground of the prosecutor's inflammatory and misleading summation. People v. Anonymous, 712 N.Y.S. 2d 482, 486-87 (1st Dep't 2000). The Court of Appeals affirmed on June 5, 2001, in a written opinion. As for the summation issue, it wrote, "We note the point raised by defendant as to the prosecutor's improper comments during the summation, but are unable to reach it. We do not condone the summation and base our affirmance solely on defendant's failure to preserve the issue." People v. Anonymous, 96 N.Y. 2d 839, 840 (2001).
King filed his first motion under § 440.10 of the New York Criminal Procedure Law ("C.P.L.") on June 25, 2002, and it was denied on March 24, 2003. The Appellate Division denied leave to appeal.
King filed this habeas petition in federal court on July 24, 2002, and it was referred to Judge Peck on August 15, 2002 for a report and recommendation. Judge Peck recommended that King's petition be denied so that he could return to state court and exhaust his claims. A January 7, 2003 Order dismissed King's petition and advised King that he could file the petition within 91 days after the state court decided his renewed CPL § 440.10 motion.
On December 28, 2007, King filed a renewed petition. King amended his petition on May 13, 2008. Judge Peck issued the Report on September 26, and King received it on October 1. King requested and received three extensions of time to file his objections to the Report, the last of which set a final January 6, 2009 deadline.*fn1
On January 6, 2009, King submitted a thirty-five page document combining his objections to the Report ("Objections") with a motion made under Federal Rule of Civil Procedure 60(b). The document complains about the proceedings in state court during his renewed CPL § 440.10 motion. While King requests that the Court first rule on his Rule 60(b) motion and dismiss the petition so that he can return to state court and attack his conviction further, the Objections also address the petition's claims in detail and discuss the Report.
In the Objections, King describes the events that occurred between January 2 and 4, 1996, and argues that there is documentary evidence regarding the line-ups and other investigatory steps taken in those days that reveals that the state manufactured the evidence that it presented to the grand jury. He discusses the trial evidence and complains about the police testimony that King had come to the precinct in early 1996 of his own free will and that Charles was afraid of King. The Objections also recite the procedural history of this case and reiterate many of the petition's claims.
King's Rule 60(b) motion appears to claim that documents related to the events between January 2 and 2, 2006, have mysteriously vanished as a result of a conspiracy in the District Attorney's Office. King had attached these records to his renewed CPL § 440.10 motion in 2003, but someone stole all of the court records, and as a result the state court never examined his evidence. Moreover, the state court's denial of his renewed CPL § 440.10 motion in March 2003 "was never entered" and King did not learn of the denial for 28 months. Compounding the problem, the Appellate Division denied his appeal on the merits even though it did not have the complete record supporting his motion. In a telephone conference on September 8, 2008, Judge Peck warned King that he risked having his federal habeas petition deemed untimely if it were dismissed a second time so that he could return to state court again. Judge Peck also ...