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Parker v. Herbert

September 11, 2009

ANTWAINE PARKER, PETITIONER,
v.
VICTOR HERBERT, SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court

ORDER

INTRODUCTION

The petitioner, Antwaine Parker, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 on May 21, 2002. Petitioner challenges the constitutionality of his state court conviction for second degree (intentional murder) in violation of N.Y. Penal Law § 125.25(1) and second degree criminal possession of a weapon in violation of N.Y. Penal Law § 265.03.

The matter was referred to United States Magistrate Judge Victor E. Bianchini, for report and recommendation. On May 28, 2009, Magistrate Judge Bianchini issued a report and recommendation recommending that the petition be granted in part and denied in part.

Respondent filed objections to the report and recommendation and the petitioner filed a response thereto. On July 28, 2009, this Court heard oral arguments on the objections.

BACKGROUND

Very briefly, the petitioner was convicted of shooting an individual named Tyrone Brown on June 14, 1997, in the City of Buffalo. A key witness against the defendant at trial was William Byrd, the victim's cousin. On the day of the shooting, the victim's cousin, Byrd, was driving an $85,000 Mercedes-Benz and the victim was following behind Byrd's vehicle in a rented Dodge Caravan. The Caravan contained $20,000 in cash. During trial, Byrd testified that on the day of the shooting, he saw the petitioner drive past his Mercedes-Benz in a green Cadillac, whereupon the petitioner turned the Cadillac around in the middle of the street, pulled up behind the victim's Caravan, and began shooting. Byrd identified the petitioner as the shooter and stated that he knew the petitioner from the streets. Immediately after the shooting, Byrd gave the keys of the Caravan to a passerby and asked him to move it around the corner. Byrd claims that he did so because he feared the police would take the money. He also claimed that when he returned for the money, he found that the van had been broken into and the money stolen.

It was the defense theory at trial that Byrd, not the petitioner, had murdered the victim. The defendant argued that Byrd and his cousin were drug dealers and that Byrd had contracted for his cousin's murder in order to rob him of the $20,000 cash and to take over the drug distribution business. Although the defendant was permitted to make this argument to the jury, the defendant did not present any evidence or witnesses in support of this theory. Instead, the defendant relied upon inferences based upon: (1) the fact that Byrd was driving an expensive vehicle which he could not afford; and (2) the victim was driving a Caravan containing $20,000 cash. Byrd told the jury that he had borrowed the Mercedes from his car-dealership employer, and that the victim was carrying $20,000 cash because they were on their way to buy a car.

After conviction, it was discovered that the victim was the head of a drug distribution ring, and Byrd, his cousin, was his "right hand man." Despite the fact that state and federal officials were jointly investigating the victim and Byrd for drug trafficking at the time of trial, that information was never disclosed to the petitioner's attorney.*fn1 Also not disclosed was the fact that state police found a note on the victim's body, which purported to be a list of drug debts owed to the victim by others, including Byrd. According to the note, Byrd owed the victim $25,000.

In a prior § 440.10 motion, the petitioner argued that the prosecution's failure to disclose the existence of a joint federal-state investigation into the victim's and Byrd's drug activities violated the requirements of Brady v. Maryland, 373 U.S. 83 (1963) and Kyles v. Whitley, 514 U.S. 419 (1995). Following a hearing on that motion, the state court judge issued an order finding that, because "Buffalo police officers were directly involved . . . in the investigation of [the victim] and Mr. Byrd for cocaine trafficking," see Decision and Order on § 4401.0 motion, Dkt. 1, Exh. H, at 19, the prosecutor had an obligation to learn of and disclose that exculpatory information to defense counsel. Notwithstanding that failure, however, the state court judge found that even if the existence of the drug trafficking investigation had been disclosed before trial, "it would not have been reasonably possible" for the jury to reach a different verdict.

Importantly, the issue about the drug debt note found on the victim's body was never disclosed to the petitioner and therefore never raised in his § 440.10 motion. It was not until after the instant habeas petition was filed that the petitioner learned of the existence of that note. The petitioner argues that the prosecutor's failure to disclose the existence of that note violated its obligations under Brady, and that if that note and all of the other Brady evidence that has since come to light had been disclosed at trial, there is a reasonable probability that the verdict would have been different. The petitioner argues that he could have used evidence showing that Byrd and the victim were drug dealers, and the fact that Byrd owed the victim $25,000, to support the defense theory that it was Byrd, not the petitioner, who committed the murder and that Byrd did so in order to wipe out his $25,000 drug debt and take over the victim's drug distribution business.

DISCUSSION

Among the claims raised in his petition, petitioner alleges that the prosecutor's failure to disclose the existence of the drug debt note violated the requirements of Brady v. Maryland, 373 U.S. 83 (1963). Specifically, petitioner argues that the note provided exculpatory evidence supporting his claim that Byrd and the victim were engaged in drug trafficking and that Byrd (not petitioner) killed the victim to take over the drug business. Petitioner also argues that the note evidencing that Byrd owed the victim $25,000 provided Byrd with an additional motive. Respondent argues that this Court lacks authority to consider petitioner's claim relating to the drug debt note because that claim was never exhausted in state court.

In Rose v. Lundy, 455 U.S. 509 (1982), the Supreme Court held that federal district courts may not adjudicate "mixed petitions" for habeas corpus, that is, petitions containing both exhausted and unexhausted claims. The Court reasoned that the interests of comity and federalism dictate that state courts must have the first opportunity to decide a petitioner's claims. Id. at 518-19. There appears to be no dispute that the petition in this case is a "mixed petition" because it contains both exhausted and unexhausted claims. Specifically, petitioner's Brady claim regarding the failure to disclose the drug debt note was never raised in a state court proceeding. This is certainly understandable since the existence of the note was never disclosed to the petitioner, and the petitioner ...


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