The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Pro se petitioner Darryl S. Scott ("petitioner") has filed a timely petition for habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Genesee County Court of Burglary in the Second Degree (N.Y. Penal L. § 140.25(2)) and Criminal Mischief in the Fourth Degree (N.Y. Penal L. § 145.00(1)). Petitioner's conviction was entered on March 12, 2001, following a jury trial before Judge Robert C. Noonan. He was subsequently sentenced to a determinate prison term of twelve years for the burglary charge and a concurrent sentence of one year for the mischief charge.
II. Factual Background and Procedural History
On September 1, 1999, petitioner and three accomplices, Jeffery McQueen ("McQueen"), Dominique Rosemund ("Rosemund"), and Johnnie Small ("Small") burglarized the home of Daniel Frey and Kimberly Hanson ("the victims") in Oakfield, New York, stealing approximately $2,800 in cash and silver coins. Petitioner and his co-defendants were charged with second-degree burglary, fourth- degree grand larceny, and fourth-degree criminal mischief. R. 2.*fn1 Rosemund and Small pleaded guilty, while petitioner and McQueen proceeded to a joint trial in Genesee County Court. Small testified for the prosecution at petitioner's trial.
Petitioner and McQueen claimed that on September 1, 1999, the day of the burglary, they were driving to the Federal Holding Center in Batavia, New York, to visit petitioner's cousin, and had no knowledge of a burglary. The defense called three witnesses in support of the joint defense.
The jury found petitioner and McQueen guilty of the burglary and mischief charges, and acquitted both co-defendants of the grand larceny charge. R. 1154-1155. The court then sentenced petitioner as a second violent felony offender to an aggregate term of imprisonment of twelve years, determinate. R. 1185, 1190.
Petitioner moved to vacate his judgment of conviction on April 2, 2003, pursuant to N.Y. Crim. Proc. L. ("C.P.L.") 440.10, on the grounds that: (1) the prosecution failed to disclose the plea agreement between Small and the District Attorney's Office; and (2) Small lied at trial about the contents of the agreement. See Respondent's Exhibits ("Ex.") A. The county court denied petitioner's argument on the merits. See Decision and Order of Genesee County Court, Ind. No. 4216, dated 5/9/2003; Ex. C. Leave to appeal that decision was denied by the Appellate Division on October 21, 2003. See Decision of the Appellate Division (Justice L. Paul Kehoe), Docket No. KA-03-01508, dated 10/21/2003. Through counsel, petitioner then filed a brief to the Appellate Division, Fourth Department, raising the following issues for appeal: (1) ineffective assistance of trial counsel/conflict of interest; (2) the verdict was repugnant; (3) prosecutorial misconduct/Brady violation; (4) petitioner was deprived of a fair trial when the trial court denied his motion for severance; and (5) a Batson violation. Ex. D. In addition, petitioner submitted a pro se brief in which he claimed that: (6) the prosecutor committed a Batson violation; (7) insufficiency of the evidence; (8) the prosecution failed to corroborate Small's testimony; (9) the court's jury charge was erroneous in several respects; and (10) the county court erred in denying petitioner's C.P.L. § 440.10 motion. Ex. E. The Fourth Department unanimously affirmed the judgment of conviction. People v. Scott, 32 A.D.3d 1178 (4th Dept. 2006); lv. denied, 8 N.Y.3d 884 (2007)
On February 15, 2008, petitioner filed the instant petition for habeas corpus (Dkt. #1), wherein petitioner seeks relief on the following grounds: (1) a Brady violation; (2) the conviction was obtained by the prosecutor's knowing use of perjured testimony; (3) a Batson violation; (4) ineffective assistance of trial counsel/conflict of interest; (5) a Fourth Amendment violation; (6) legally insufficient evidence to support the burglary conviction; (7) the prosecution failed to corroborate Small's testimony; (8) the trial court's jury charge was erroneous; (9) prosecutorial misconduct; and (10) the trial court erred in denying petitioner's motion for severance. Petition ("Pet.") ¶ 12 (Grounds One - Ten).
For the reasons that follow, I find that petitioner is not entitled to the writ, and the petition is dismissed.
A. General Principles Applicable to Federal Habeas Review
Under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a claim that was "adjudicated on the merits" in state court "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or if it "was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding." § 2254(d)(2). A state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412; accord Sevencan v. Herbert, 342 F.3d 69, 73-74 (2d Cir. 2002), cert. denied, 540 U.S. 1197 (2004).
A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identified the governing legal rule, but applied it in an unreasonable manner to the facts of a particular case. Williams, 529 U.S. at 413; see also id. at 408-10. "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently." Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001). Rather, "[t]he state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable." Id. This increment "need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."), cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091 (2003). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
B. Merits of the Petition
1. Brady Violation; Use of Perjured Testimony
Petitioner contends that the prosecutor violated his obligation under Brady v. Maryland, 373 U.S. 83 (1963)*fn2 , by withholding from petitioner Johnnie Small's cooperation agreement. Pet. ¶ 12, Ground One. The § 440 court denied petitioner's contention on the merits, finding that it was unclear whether Small received leniency because of his cooperation with the prosecution in petitioner's case or for his confession and guilty plea.
R. 1224-1225. The court further noted that the prosecution had disclosed Small's statement to the defense, as defense counsel was able to cross-examine Small on that matter, and defense counsel argued the issue in his summation. R. 1223.
To prove a Brady violation, a habeas petitioner must establish that: (1) the evidence at issue was favorable to the accused, either because it was exculpatory or could have impeached a prosecution witness; (2) the evidence was suppressed by the prosecution, either willfully or inadvertently; and (3) prejudice ensued from the withholding. Moore v. Illinois, 408 U.S. 786, 794-95 (1972); see also Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Evidence is material only if there is a reasonable probability that disclosure of the evidence to the defense would have changed the result of the proceeding. United States v. Bagley, 473 U.S. 667, 682 (1985). "A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. at 682.
Neither the Second Circuit nor the Supreme Court has specified the timing of disclosure that Brady requires, but it is clearly established that "disclosure prior to trial is not mandated." Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001) ("It is not feasible or desirable to specify the extent or timing of disclosure Brady and its progeny require, except in terms of the sufficiency, under the circumstances, of the defense's opportunity to use the evidence when disclosure is made.") (citations omitted). All that is required by Supreme Court and Second Circuit precedent is that Brady material be disclosed "in time for its effective use at trial." United States v. Gil, 297 F.3d 93, 105 (quoting United States v. Coppa, 267 F.3d 132, 142 (2d Cir. 2001)). Indeed, the record reflects that whatever agreement that was entered into by Small and the District Attorney's office was used by counsel in his cross-examination and in his summation arguments. R. 931-938, 1053. Assuming the evidence was impeaching, defense counsel was still able to make "effective use" of that evidence at petitioner's trial. Accordingly, petitioner has failed to demonstrate the prosecutor "suppressed" Small's cooperation agreement within the meaning of Brady v. Maryland, 373 U.S. 83, supra; accord, e.g., Goston v. Rivera, 462 F.Supp.2d 383, 395 (W.D.N.Y. 2006) ("Even if the Court were to assume that [the witness'] grand jury minutes constituted Brady material, there was not a 'suppression' of the material simply because defense counsel did not receive it prior to trial.")
In a related claim, petitioner argues that Small gave false testimony regarding the contents of a "release under supervision" agreement Pet. ¶ 12, Ground Two. There is no evidence in the record, nor does petitioner point to anything outside of the record, to support his contention that such an agreement existed, or that Small lied about the terms of such an agreement in his trial testimony. Furthermore, Small was never directly questioned about a release agreement. As such, petitioner has not provided a foundation upon which a due process claim can be made, and a federal court may not grant habeas relief based upon unsubstantiated conclusions, opinions, or speculation. Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (federal courts should not grant "habeas relief on the basis of little more than speculation with slight support"); see Osinoiki v. Riley, CV-90-2097, 1990 WL 152540, at *2-3 (E.D.N.Y. Sept.28, 1990) (conclusory statements based on speculation "are inadequate to satisfy petitioner's burden"); Skeete v. People of New York State, No. 03-CV-2903, 2003 WL 22709079, *2 (E.D.N.Y. Nov.17, 2003) (vague, unsupported allegations of constitutional violations and errors during alien's state trial did not assert a viable habeas claim.); compare Napue v. Illinois, 360 U.S. 264 (1959) (there can be a due process violation based on a witness' false testimony when the prosecutor knows the testimony is false and the false testimony likely had an impact on the jury's verdict.).
Petitioner's Brady and due process claims are therefore denied, as the state court's decision did not ...