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Cox v. Ebert

August 5, 2010


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge


Petitioner Rico Cox ("Cox") petitions the Court for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his convictions in New York State Supreme Court for manslaughter in the first degree and attempted murder in the second degree. On October 10, 2007, Magistrate Judge James C. Francis IV issued a Report & Recommendation ("R&R") recommending that Cox's petition be denied. Having reviewed the R&R, as well as Cox's timely objections, the Court ADOPTS Magistrate Judge Francis's recommendations in their entirety and DENIES Cox's petition.



On March 16, 1993, at approximately 5:00 p.m., Cox, Leon Hardy, and an unidentified third man confronted Ervin Edwards and Darren Dingle in a courtyard that serves as the entrance to a Bronx apartment at 1162 and 1164 Sheridan Avenue. Edwards and Cox began to quarrel and fist-fight. During the fight, Hardy and the unidentified third man pulled out guns and Dingle fled. Hardy chased Dingle and fired several shots in his direction. The shots missed Dingle.

In the courtyard, Edwards lay wounded on the ground with blood flowing from his stomach, chest, and mouth. Edwards' friend, Aaron "Bucky" Fields, saw Edwards and asked what happened. Edwards replied, "Rico."

Police Officer Carson ("P.O. Carson") was the first policeman to arrive at the scene. He attended to Edwards. Medical personnel soon arrived and carried Edwards into an ambulance. Fields climbed into the ambulance with Edwards and questioned Edwards about the events. Edwards responded, "Rico man just wild out. He just flipped and went crazy." Edwards died later that evening. On March 25, 1993, Cox and Hardy were apprehended by law enforcement officials in Albany, New York. The unidentified third man was never found. In February 1995, Hardy pled guilty to second-degree attempted murder of Dingle.

II.Procedural History

A.The Trials

Cox was charged with one count of second-degree murder and one count of first-degree manslaughter relating to the death of Edwards. (R&R at 3.) Cox was also charged with one count of second-degree attempted murder relating to Dingle. (R&R at 3.) Cox was tried in March and April of 1995, and was acquitted of the second-degree murder charge relating to the death of Edwards. (R&R at 3.) The jury was unable to reach a verdict on the other charges, resulting in a mistrial. (R&R at 3.) In September 1996, Cox was retried on the first-degree manslaughter and second degree attempted murder charges. (R&R at 3.)

At the second trial, Dingle testified that he did not see the actual fight between Cox and Edwards, nor did he see Cox pull out a gun at any time. (R&R at 4.) P.O. Carson testified that before dying, Edwards stated, "Rico Cox shot me" and gave P.O. Carson Cox's home address. (R&R at 5.) Makeda Clarke, a thirteen-year-old girl at the time of the shooting, provided conflicting testimony as to what she witnessed from the fifth floor of a building overlooking the courtyard. (R&R at 5.) At first, Clarke testified that no one in the courtroom was present at the crime scene. (R&R at 5.) When Assistant District Attorney Allen Karen ("ADA Karen") refreshed Clarke's memory with her grand jury testimony, however, Clarke testified that she did in fact see Cox and Edwards fighting; that Cox had a gun in his hand; and that Cox fired the gun. (R&R at 5.) Clarke was unable to determine Cox's target. (R&R at 5.)

During cross-examination, Clarke testified that her testimony was based on rumors and that she only testified to witnessing the murder because she was told she would get in trouble if her testimony conflicted with prior testimony. (R&R at 6.) After the court prodded Clarke, she said, "I saw [Rico Cox] with a gun . . . . I didn't see him shoot nobody. But I saw the other boy shoot somebody-because the gun was down." (R&R at 6.) The trial judge denied defense counsel's motion to dismiss both counts against Cox for failure to establish a prima facie case as to each element of the crimes charged. (R&R at 6-7.) On September 24, 1996, the jury convicted Cox of first-degree manslaughter for the death of Edwards and second-degree attempted murder of Dingle. (R&R at 7.)

B.Post-Trial Motions

In March, 1997, pursuant to N.Y. Crim. Proc. Law § 330.30, Cox moved to set aside the verdict, arguing that the jurors engaged in improper discussions of the evidence and formed opinions prior to the deliberations. (R&R at 7.) On March 27, 1997, the motion was denied and Cox was sentenced to concurrent indeterminate prison terms of eight and one third to twenty-five years. (R&R at 8.)

In April, 2000, Cox retained counsel and, pursuant to N.Y. Crim. Proc. Law § 440.10(1)(f) and (h), moved to vacate his conviction, citing Brady*fn2 and Rosario*fn3 violations. Specifically, Cox argued that the prosecution failed to disclose: (i) an "Unusual Occurrence Report" that did not mention Edwards' statement that Cox had shot him; (ii) statements that Dorrett Clarke, Makeda Clarke's mother, allegedly made to the prosecution indicating that Makeda Clarke had not witnessed the shooting; and (iii) Makeda Clarke's criminal record. (R&R at 8.)

In November, 2000, a hearing was held, during which both Mr. Heinrich, Cox's trial lawyer, and Dorrett Clarke testified. (R&R at 8.) Before a decision was rendered, Cox sent a pro se letter requesting that the court consider a sworn affidavit by Makeda Clarke ("Clarke Affidavit"). Cox alleged that his attorney had failed to introduce the Clarke Affidavit into evidence. (R&R at 9.) The Clarke Affidavit stated that Makeda Clarke had not witnessed the shooting, had told this to ADA Karen, but had testified to witnessing the shooting only because ADA Karen used Makeda Clarke's prior arrest record to coerce her to testify. (R&R at 9.) The court denied Cox's request because the hearing was closed and recommended that Cox file a separate affidavit on the matter. (R&R at 9.) After Cox's lawyer failed to file a separate affidavit, Cox moved pro se, pursuant to N.Y.

C.P.L.R. § 2221, for a rehearing on his motion to vacate. (R&R at 9.) The court denied the motion because: (i) the defense had in fact received a copy of the Unusual Occurrence Report; (ii) Dorrett Clarke was not a credible witness; and (iii) ADA Karen was unaware of Makeda's Clarke's prior conviction because the conviction had been recorded under an alias with a different date of birth. (R&R at 10.)

In November, 2001, Cox appealed both his conviction and the denial of his motion to vacate to the Appellate Division, First Department. (R&R at 10.) He argued that: (i) the prosecution violated Brady for failing to turn over exculpatory information and relying on perjured testimony; (ii) the evidence against him was insufficient as a matter of law; (iii) the trial court handled Makeda Clarke's testimony prejudicially; (iv) his trial counsel was ineffective for failing to effectively cross-examine P.O. Carson; and (v) the court erred in declining to entertain his pro se motion to reopen the § 440.10 hearing. (R&R at 10.)

On September 24, 2002, the Appellate Division affirmed the trial court's judgment. (R&R at 10.) The Appellate Division held that: the evidence against Cox was legally sufficient to support a conviction; there were no Brady violations; and that Cox's trial counsel was effective in representing Cox. (R&R at 10.) The Appellate Division also found that the trial court properly denied his motion to vacate, holding that the Clarke Affidavit was not introduced at the proper time and would not have affected the result of the hearing. (R&R at 11.) The New York Court of Appeals denied leave to appeal. (R&R at 11.)

In February, 2004, Cox filed a pro se coram nobis petition to set aside the verdict for ineffective assistance of appellate counsel. (R&R at 11.) Specifically, Cox argued that his attorney failed to raise double jeopardy and Antommarchi claims.*fn4 (R&R at 11.) The Appellate Division denied Cox's coram nobis petition, Cox's subsequent application to reargue the motion, and Cox's application for reconsideration of the decision denying leave to appeal. (R&R at 11.)

In July, 2005, Cox retained a new attorney and filed a second motion to vacate his conviction under Crim. Proc. Law § 440.10(1)(b), (c), (f), and (h). (R&R at 12.) Cox again argued that: (i) the prosecution had violated his rights under Brady and Rosario; (ii) Makeda Clarke committed perjury; (iii) the prosecution knowingly used perjured testimony to secure his conviction; and (iv) he was denied effective assistance of trial counsel. (R&R at 12.) The court denied the motion as well as Cox's application for leave to appeal the denial of the motion. (R&R at 12.)

C.Petition for a Writ of Habeas Corpus

On February 27, 2006, Cox filed this habeas corpus petition pursuant to 28 U.S.C. § 2254.*fn5 Magistrate Judge Francis initially appointed a new attorney to represent Cox in connection with his Antommarchi claim and any other claim that warranted representation. (R&R at 12.) Subsequently, on August 10, 2007, however, the government submitted a trial transcript revealing that Cox had waived his Antommarchi rights and Magistrate Judge Francis relieved Cox's counsel. (R&R at 12-13.)

Cox's habeas corpus petition challenges his conviction for manslaughter in the first degree and attempted murder in the second degree. Specifically, Cox contends that: (i) the prosecution withheld exculpatory evidence in violation of Brady; (ii) the prosecution knowingly used perjured testimony to secure his conviction; (iii) the trial court abused its discretion in refusing to reopen a hearing on a motion to vacate his conviction; (iv) both his trial and appellate counsel were ineffective, in violation of the Sixth Amendment; and (v) the prosecution failed to prove his guilt beyond a reasonable doubt.

Magistrate Judge Francis reviewed Cox's habeas corpus petition and found Cox's arguments meritless.

Consequently, on October 10, 2007, Magistrate Judge Francis issued an R&R recommending that Cox's petition for a writ of habeas corpus be denied.*fn6 On November 26, 2007, Cox filed a 44 page objection to the R&R, containing fifty-five enumerated errors in Magistrate Judge Francis' R&R ("Obj.").*fn7


I.Standard of Review for a Report and Recommendation

A district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1). When a timely objection has been made to the magistrate's recommendations, the Court is required to review the contested portions de novo. Pizarro v. Bartlett, 77 F. Supp. 815, 817 (S.D.N.Y. 1991). The Court, however, "may adopt those portions of the Report to which no objections have been made and which are not facially erroneous." La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y. 2000).

II.Cox's Objections

Cox's 55 enumerated errors contain four principal objections to the R&R: (A) the R&R fails to properly address Brady violations in connection with the prosecution's failure to turn over exculpatory evidence and impeachment material (Generally Objections 1-16); (B) the R&R fails to properly address Cox's claims that the prosecution relied on perjured testimony (Generally Objections 17-27); (C) the R&R fails to properly address Cox's ineffective assistance of trial and appellate counsel claims (Generally Objections 28-48); and (D) the R&R fails to properly address Cox's insufficiency of the evidence claims in ...

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