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McGowan v. Green

March 25, 2010


The opinion of the court was delivered by: Pitman, United States Magistrate Judge


I. Introduction

By letter dated July 3, 2009, petitioner seeks to stay consideration of his petition for a writ of habeas corpus pending exhaustion of his state remedies with respect to a newly asserted claim. For the reasons set forth below, the application is denied.

II. Facts

The facts underlying petitioner's conviction are set forth at length in my Report and Recommendation dated April 30, 2007, familiarity with which is assumed. I set forth here only those facts material to the resolution of present application.

Petitioner seeks a writ of habeas corpus vacating a sentence and judgment of conviction imposed on May 2, 1997 for nineteen counts of robbery in the first degree and three counts of attempted robbery in the first degree in violation of New York Penal Law Sections 110.00 and 160.15(4). Petitioner was sentenced to nine consecutive indeterminate sentences of twelve and one-half to twenty-five years on the robbery counts, and three consecutive indeterminate sentences of seven and one-half to fifteen years on the attempted robbery counts, for an aggregate sentence of 120 to 140 years. Pursuant to New York Penal Law Sections 70.30(1)(e)(i) and (vi), petitioner's sentence was deemed to be an indeterminate term of imprisonment of twenty-five to fifty years. Petitioner is presently incarcerated pursuant to the judgment.

Petitioner's conviction arises out of his participation in a string of armed robberies and attempted armed robberies of a series of bars, restaurants and parking garages in Manhattan, committed between January 4, 1996 and February 12, 1996. On each occasion, petitioner acted in concert with two to four other individuals. Petitioner's trial on these charges commenced on March 19, 1997 and concluded on May 1, 1997.

Of particular relevance to the present application is petitioner's conviction for his participation in the robbery of a bar called Pat O'Brien's located at 1497 Third Avenue in Manhattan. At approximately 3:00 a.m. on February 12, 1996, petitioner entered the bar and asked to use the bathroom (T.*fn1 316-18, 389, 392, 465, 469). After being told that the bar was closed, petitioner displayed a gun and declared that it was a robbery (T. 321, 393, 465). At the same time, a second armed man and one to three other men entered the bar (T. 321, 392-93, 465). Petitioner struck Roy Reardon, the bartender, on the face with the gun, and the robbers ordered Reardon and the other employees, Eric Lewenstein and Gerardo Rojas, to empty their pockets and lie on the floor (T. 324-27, 393-95, 467). The robbers took one to two dollars and a watch from Reardon; fifty dollars and a watch from Lewenstein; and approximately $250 from Rojas (T. 326, 395, 432, 467). Petitioner ordered Reardon to tell him the combination to the safe and when Reardon claimed not to know it, petitioner placed his gun at the back of Reardon's head, cocked the hammer and threatened to shoot him (T. 328-29, 397-98). The three victims were then dragged downstairs and petitioner, after finding a downstairs office, threatened to kill the men if he found money inside of it (T. 330-31, 401). The robbers then forced their victims into a walk-in freezer and barricaded the door closed with beer kegs and other supplies before fleeing the scene (T. 331, 401). The prosecution proved petitioner's participation in this robbery through the testimony of Reardon, Lewenstein and Rojas, all of whom testified on the first day of petitioner's trial, March 19, 1996 (T. 267, 312, 386, 463). Prior to and at the trial, the prosecution did not disclose any Brady*fn2 or Giglio*fn3 material concerning Lewenstein.

Petitioner filed his petition for a writ of habeas corpus in 2003, asserting six claims: (1) there was insufficient evidence to establish probable cause for his warrantless arrest;

(2) identification evidence should have been suppressed because he was deprived of the right to have counsel present during the line-up and the line-up was unduly suggestive; (3) the Trial Court's Sandoval*fn4 ruling was improper and deprived him of a fair trial, and the prosecutor's questioning exceeded the bounds of the Sandoval ruling; (4) the Trial Court improperly conducted interviews of potential jurors at sidebar, out of petitioner's presence; (5) the prosecutor's summation remarks deprived him of a fair trial, and (6) his sentence is excessive and constitutes cruel and unusual punishment. All of these claims were resolved in two reports and recommendations I issued dated April 30, 2007 and January 4, 2010.

The present application arises out of information that first came to petitioner's attention in 2005. At that time an article appeared in the New York Post disclosing that Lewenstein was being released from a New York State prison after serving a sentence for two counts of attempted rape in the first degree; according to the article, the conduct giving rise to Lewenstein's conviction occurred in 1997 and 2001 (Exhibit F to Petitioner's Notice of Petition Pursuant to CPL § 440.10, annexed to Petitioner's Letter dated June 9, 2009). Over the next two years, petitioner and a friend developed a substantial amount of information suggesting that Lewenstein may have been a subject in an attempted rape investigation as early as March 1997.

Petitioner has now filed a collateral attack in state court alleging that the prosecution's failure to disclose that Lewenstein was the subject of a criminal investigation at the time that he testified against petitioner violated the prosecution's obligations under Brady and Giglio. In his current application, he seeks to stay the final resolution of his habeas petition until his state collateral attack is completed so that he can add his Brady/Giglio claim to his pending petition.

III. Analysis

Petitioner's application is denied because any attempt to assert a Brady/Giglio claim would be both time barred and futile. Thus, the stay ...

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