The opinion of the court was delivered by: Seybert, District Judge
Pursuant to 28 U.S.C. § 2254, Petitioner Hassan Nelson seeks to vacate his state court conviction. Mr. Nelson's original petition raised numerous grounds for relief, and Mr. Nelson has since moved to amend it to include additional grounds. For the foregoing reasons, Mr. Nelson's petition is GRANTED and his conviction is VACATED. Mr. Nelson's motion to amend is also GRANTED.
On January 14, 1999, two individuals entered Thrifty Distributing's ("Thrifty") offices in Hempstead, New York, and perpetrated an armed robbery, escaping with approximately $20 in cash. Thrify employees Barbara Bass, Joan Wunk, Jennifer Del Guidice, Jennifer Oberding, Rahla Rosenman, Claudia Garcia and Gideon Bari witnessed the robbery and all but Ms. Oberding provided accounts of it to the police. These accounts indicated that the robbery was conducted by two African-American males in their mid-thirties, one wearing a copper-colored jacket, and one wearing a black jacket. In Ms. Bass' original account, the robber who wore the black jacket was clean shaven. (Bass Supp. Dep. at 1). Ms. Garcia disagreed, reporting that he had a mustache. (Garcia Supp. Dep. at 1). Ms. Del Guidice reported that the black jacketed-robber had a "scuffy grey & black beard." (Del Guidice Supp. Dep. at 1). Of the eye-witnesses, Ms. Del Guidice provided the police with the most contemporaneous description of the robbery: handwritten notes that she had jotted down shortly after the robbery occurred. The police, however, lost these notes.
Eleven days later, on January 25, 1999, Ms. Oberding and Ms. Del Guidice visited a gas station. Ms. Oberding waited in the car, and Ms. Del Guidice went into pay. While waiting to pay, Ms. Del Guidice heard a voice that she identified as belonging to one of the robbers. She turned to see the speaker and, upon seeing Mr. Nelson, identified him as the black-jacketed robber. Ms. Del Guidice went back outside and told Ms. Oberding what happened. Ms. Oberding then wrote down Mr. Nelson's license plate, and provided this information to the police.
On January 26, 1999, the police asked Mr. Nelson to come to the station. The police snapped a photo of Mr. Nelson, but permitted him to leave without questioning him about the robbery.
On January 27, 1999, Ms. Wunk and Ms. Del Guidice went to the station to view a book containing approximately 200 photographs. Both identified a photo of Mr. Nelson. On January 29, 1999, the police showed Ms. Bass and Ms. Oberding an array of six photographs. Again, both identified a photo of Mr. Nelson.
On February 17, 1999, the police arrested Mr. Nelson. On April 13, 1999, Mr. Nelson took part in a lineup. Ms. Del Guidice, Ms. Oberding, Ms. Bass and Ms. Wunk identified Mr. Nelson in this lineup. Ms. Rosenman and Mr. Bari did not. On May 5, 1999, Mr. Nelson, through his attorney Martin Stilberg, sought to suppress the lineup identification on the grounds that the lineup was unduly suggestive. The lineup consisted entirely of African-American men. But the lineup's official photograph strongly suggests that Mr. Nelson was substantially lighter skinned than all of the "fillers" standing next to him. In addition, Mr. Nelson was substantially taller than all but one man in the lineup. The Court denied this motion, crediting Detective Raymond Kurtz's testimony that the photograph did not accurately depict how similar in skin color Mr. Nelson was to the fillers. In so doing, the Court did not credit Mr. Stilberg's account that the photograph accurately captured the skin color discrepancy between Mr. Nelson and the fillers.
A jury trial took place in July 1999. Shortly before the trial commenced, the prosecution informed the Court that it had lost Ms. Del Guidice's original handwritten notes, and thus had failed to turn these over to the defense. The Court then inquired into Mr. Stilberg's position concerning the lost notes, and Mr. Stilberg responded "[The Prosecution] made me aware. I don't know what else I can say." (Trial Tr. at 9). The Court then asked if Mr. Stilberg had any "other applications at this time?," and Mr. Stilberg reported "No, sir." (Trial Tr. at 9). In so doing, Mr. Stilberg failed to seek a remedy for the missing notes.
Mr. Stilberg gave the defense opening statement on July 22, 1999. During his opening, Mr. Stilberg instructed the jury to "Convict him, convict him, if I do not prove that [Mr. Nelson] was clean shaven on the day of the robbery . . . . beyond any doubt, not a reasonable doubt, not a shadow of a doubt, but any doubt." (Trial Tr. at 103).
During its case-in-chief, the prosecution presented no physical evidence linking Mr. Nelson to the crime. Rather, the prosecution's case depended entirely on eye-witness testimony. Ms. Wunk, Ms. Oberding, Ms. Bass and Ms. Del Guidice all took the stand and identified Mr. Nelson as one of the robbers. Ms. Wunk testified that, during the robbery, Mr. Nelson wore a "scruffy beard." (Trial Tr. at 122). Next, identifying Mr. Nelson, Ms. Bass testified that her original depiction of the robber as clean- shaven was incorrect, and that she actually remembered the robber having about five days of facial hair "growth." (Trial Tr. at 210-12). Ms. Del Guidice also testified about the robber having a scruffy beard, which Ms. Del Guidice remembered as being black and grey.*fn1 (Trial Tr. at 282).
The defense responded to the prosecution's case by putting forward two witnesses, attorney Claude Timms and Nassau County Department of Probation employee Diane Eich, who testified that they saw Nelson on January 13, 1999 (the day before the robbery), and that he was clean-shaven at the time. (Trial Tr. 302, 330). In addition, Mr. Nelson's employer, Peter Lechter, further testified that, in the five years he knew Mr. Nelson (dating to 1994), Mr. Nelson never had a mustache or a beard. (Trial Tr. at 394). To "rebut" this testimony, the prosecution introduced, among other things, a 1993 arrest photo of Mr. Nelson wearing an orange prison uniform, which depicted Mr. Nelson with a moustache and beard. Along with one of Mr. Nelson's co-workers, Mr. Lechter also testified that Mr. Nelson was at work the day of the robbery, limiting (although not eliminating) his opportunity to commit the crime.
On July 29, 1999, the jury found Mr. Nelson guilty.*fn2 On or around September 28, 1999, one of Mr. Nelson's former jurors, Toni Jones, visited him in prison, out of a concern that Mr. Nelson's attorney was not competent enough to defend him. (Jones Stmt. at 2). In a subsequent conversation with a private investigator hired by Mr. Nelson, Ms. Jones reported that "two men" on the jury speculated it was "more than likely" that Mr. Nelson had a criminal record, based on the "mug shots" introduced at trial. (Jones Stmt. at 5-6). Notwithstanding this statement, on December 14, 1999, the Court sentenced Mr. Nelson as a prior felony offender to twenty years imprisonment.*fn3
Mr. Nelson appealed his conviction. The New York Supreme Court, Second Appellate Department, unanimously affirmed it on February 10, 2003, and the New York Court of Appeals denied leave to appeal on June 26, 2003. Mr. Nelson also filed several unsuccessful post-trial motions in the New York County Court, County of Nassau, seeking to vacate his ...