The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.
On May 4, 1998, Dominic Dupont was convicted in New York Supreme Court of murdering Nolan Profitt. At trial, the prosecutor denied possessing the victim's clothing and never presented it as evidence, even though gunpowder patterns on the clothing could have confirmed witness testimony that Profitt was shot at close range during a scuffle with Dupont. After he was sentenced, Dupont uncovered that the police had in fact vouchered Profitt's clothing shortly after the murder. A state collateral proceeding determined that both the prosecutor and defense counsel had evidence before trial that the clothing had been vouchered, although both were clearly unaware of this fact throughout the trial and subsequent proceedings. In the end, the clothing proved not to be exculpatory or impeaching, as later testing revealed gunpowder patterns consistent with a close-range shooting.
On September 5, 2006, Dupont moved this Court pro se for entry of an amended petition seeking a writ of habeas corpus under 28 U.S.C. § 2254. In his amended petition, Dupont alleges that the trial and appellate prosecutors violated Brady v. Maryland, 373 U.S. 83 (1963), by knowingly withholding the victim's clothing, and committed misconduct by misrepresenting that the police did not possess the clothing. Dupont also alleges that the People should have been sanctioned for failing to provide him with the clothing, that his trial and appellate counsel provided ineffective assistance, and that the trial evidence was legally insufficient to prove that he acted with depraved indifference to human life.
For the reasons set forth below, the Court finds petitioner's claims are without merit, and DISMISSES the amended petition in its entirety.
Petitioner Dominic Dupont was charged under Kings County Indictment Number 627/97 with two counts of Murder in the Second Degree (N.Y. Penal Law § 125.25(1), (2)) and one count each of Criminal Possession of a Weapon in the Second Degree (§ 265.03) and Third Degree (§ 265.02(4)). (Aff. Opp. Pet. Writ Habeas Corpus ("Opp. Aff.") (Doc No. 10) at 2.) Petitioner's trial commenced on April 27, 1998 before Supreme Court Justice Robert S. Kreindler and a Brooklyn jury. (Opp. Aff. Ex. R, Trial Transcript ("Tr.") at 1.)
Trial witness Robert Cush ("Cush") testified that on June 4, 1997, shortly before 7:40 p.m., he and his cousin, the decedent Nolan Profitt ("Profitt"), were walking down Foster Avenue in Brooklyn. (Id. at 321--30.) Petitioner's fraternal twin brother Nolan Dupont approached Cush and Profitt, and repeatedly asked them if they had a problem with him or "his boys." (Id. at 334.) While Cush was talking with petitioner's brother, petitioner and his associate Wendall Derilus ("Derilus") approached Cush from behind. (Id. at 335--36.) From about three car lengths away, petitioner ordered his brother to get out of the way so petitioner could "baddy those niggers" - that is, kill Cush and Profitt. (Id. at 336--39.) When Cush turned around he saw petitioner holding a nickel chrome plated gun. (Id. at 338--39.) Cush then pushed Derilus aside and fled across Nostrand Avenue, but fell between two cars. (Id. at 340--44.) Petitioner's brother and Derilus caught up to Cush and began to hit him. (Id. at 344--46.)
Cush testified that his other cousin, Beverly Moffatt ("Moffatt"), saw the beating and rushed over, grabbing a hold of petitioner's brother. (Id. at 346.) Petitioner ordered Moffatt to let go of his brother, and Moffatt complied. (Id. at 350--51.) According to Cush, Profitt then began to scuffle with petitioner, who proceeded to place Profitt in a headlock. (Id. at 351.) Cush "heard the gun go off," and saw Profitt fall to the ground. (Id. at 354--55.) Cush saw petitioner pick two guns off of the ground, and then run off with his brother. (Id. at 355.) An autopsy later determined that Profitt died from a gunshot wound to the torso. (Id. at 806.)
Moffatt likewise testified at trial that she came upon petitioner's brother and Derilus hitting Cush, and that she grabbed a hold of petitioner's brother, while another witness, Eustace Scantelbury ("Scantelbury") grabbed Derilus. (Id. at 515--17.) According to Moffatt, petitioner then drew a silver gun from his waist and ordered Moffatt to "back the fuck up." (Id. at 517--18.) After Moffatt released petitioner's brother, petitioner grabbed Profitt from behind and began to fight with him. Moffatt testified that during the fight, petitioner ended up holding Profitt from behind with his right arm, and reached around to shoot him in the chest with the gun in his left hand. (Id. at 521, 536.) According to Moffatt, petitioner then threw the gun into a green car and fled in the car. (Id. at 539--40.)
Scantelbury also testified at trial that he attempted to intervene between Cush and his two assailants, but that petitioner drew a "shined out gray gun" and ordered him to "back the 'F' up." (Id. at 655--56.) Scantelbury, however, testified that at the time of the shooting, Profitt was holding petitioner from behind, and not the other way around. (Id. 657, 687.) According to Scantelbury, petitioner used the gun in his left hand to shoot Profitt in the chest over petitioner's own right shoulder. (Id. at 693.)
The day after the murder, Detective Frank Roman received an anonymous phone call directing the police to 1351 New York Avenue in Brooklyn, the building where petitioner lived. (Id. at 689--99.) There, on the roof, the detective recovered a nickel plated .380 caliber semi-automatic handgun and a .357 magnum revolver. (Id. at 699--701, 706.) Detective Robert Tamburri, who was identified at trial as an expert in firearms and microscopic comparisons, later determined that a discharged bullet found at the crime scene matched the .380 handgun. (Id. at 765--66.)
Medical examiner Stephen DeRoux examined Profitt's body, which he testified was delivered to him unclothed. (Id. at 800.) DeRoux located one entry would and one exit wound in Profitt's upper torso. (Id. at 801.) DeRoux found no "contact wound" as would be expected if the muzzle were in contact with the body at the time of discharge, nor any "stippling" or "fouling" as would be expected if the gun were fired within eighteen inches of the body without clothing. (Id. at 810--13.) DeRoux testified, however, that Profitt's clothing would have affected how much fouling or stippling DeRoux would expect to find on the body. (Id. at 809.) DeRoux stated that "[i]f the deceased was wearing clothing at the time and the bullet went through the clothing, then all bets are off as far as the distance unless we have the clothing for either examination or testing." (Id. at 827.)
Before closing arguments, petitioner's trial counsel requested an adverse inference instruction*fn1 based on the prosecution's failure to produce Profitt's clothing for examination. (Id. at 862--70.) The trial prosecutor, then-Assistant District Attorney Danielle V. Eaddy, affirmed to Justice Kreindler that she did not know the location of Profitt's clothing. (Id. at 863.) Justice Kreindler gave ADA Eaddy ninety minutes to reopen the case and establish what happened to the clothing, warning her that a "missing evidence charge with respect to the deceased's clothing" would issue if she was unready to reopen the case at that time. (Id. at 864--65.) Eaddy objected, stating that "[t]here is no testimony that this clothing was evidence in the People's possession" and asking, "Why should that be attributed to the People . . . ?" (Id. at 865--66.)
After a short recess, Justice Kreindler asked petitioner's trial counsel for the basis on which he sought the adverse charge. (Id. at 867.) Trial counsel explained that a lack of fouling or stippling on the clothing would challenge the credibility of the witnesses and their descriptions of the shooting, as it would indicate that the gun, "if you include the sizing of the barrel, had to be two feet to the deceased's right when it was fired." (Id. at 868.)
Justice Kreindler decided not to issue the charge "because, number one, it's only on the issue of credibility and, number two, . . . there has been nothing in the case to indicate that the police had anything to do with the missing clothing." (Id. at 869.) However, trial counsel was permitted in summation to address the absence of the clothing, and the failure of the police to preserve it. (Id. at 917--19.) Accordingly, trial counsel argued before the jury that because no stippling or fouling was found on Profitt's body, "the gun must have been two feet from the individual, from the point of impact. If they want to tell you different, then they can find the clothes." (Id. at 915.) Trial counsel then reenacted the fight as described by Moffatt and as described by Scantelbury, arguing that in either configuration petitioner could not reach far enough to hold the gun two feet from Profitt during the scuffle. (Id. at 918--19.) ADA Eaddy reminded the jury in her summation that DeRoux said he could not form an opinion about the distance between the gun and the victim without knowing if stippling or powder were on the clothing. (Id. at 948--49.)
Petitioner was convicted of depraved indifference murder in the second degree and criminal possession of a weapon in the second degree, and was sentenced to concurrent prison terms of twenty-five years to life for the murder and seven and one-half to fifteen years for the weapon possession.
Petitioner appealed from his judgment of conviction to the New York Supreme Court, Appellate Division, Second Department ("Appellate Division"). See N.Y. Crim. Proc. Law §450.10(1). Petitioner's appellate counsel, Cynthia Colt of the Legal Aid Society, filed a forty-six page brief on petitioner's behalf, raising the following claims:
1. The People had failed to prove that petitioner was the shooter, and even assuming that petitioner was the shooter, the People had failed to prove that he had acted with depraved indifference;
2. The trial court had denied petitioner his right to a fair trial by refusing to order a hearing to determine whether the prosecution possessed the victim's clothing; and
3. The sentence was harsh and excessive.
In a pro se supplemental brief to the Appellate Division, petitioner further claimed that:
4. The trial court had erred in concluding that the petitioner failed to establish a prima facie case of discrimination by the prosecutor in jury selection.
By decision and order dated May 21, 2001, the Appellate Division unanimously affirmed petitioner's conviction and sentence. People v. Dupont, 283 A.D.2d 587, 724 N.Y.S.2d 901 (App Div. 2d Dep't 2001). The Appellate Division found that petitioner's legal insufficiency claim was unpreserved for appellate review and, in any event, meritless. Id. The Appellate Division further held that the verdict was not against the weight of the evidence. Id. Finally, the Appellate Division concluded that petitioner's remaining contentions, including those raised in his pro se supplemental brief, were without merit. Id.
Petitioner applied for permission to appeal to the New York Court of Appeals. See N.Y. Crim. Proc. Law §§ 450.90, 460.20. By certificate dated October 12, 2001, a judge of the Court of Appeals denied petitioner permission to appeal further. People v. Dupont, 97 N.Y.2d 640, 735 N.Y.S.2d 497 (2001).
III. First § 440 Proceeding
By papers dated "March, 2002," and filed on May 20, 2002, petitioner moved, pursuant to New York Crim. Proc. Law § 440.10, for an order vacating his judgment of conviction. (Opp. Aff. Ex. E.) Petitioner claimed that his rights to due process and a fair trial were violated by the trial court's failure to sanction the People for not providing petitioner with the deceased's clothing. (Id.)
In a decision and order dated September 18, 2002, the New York Supreme Court, Kings County, denied petitioner's motion. (Opp. Aff. Ex. G.) The court held that petitioner's claim was procedurally barred from review. See N.Y. Crim. Proc. Law §§ 440.10(2)(a), (c). In an order dated January 13, 2003, the Appellate Division refused to grant petitioner leave to appeal the decision.
IV. FOIL Requests and Article 78 Proceeding
By a letter dated February 6, 2003, petitioner made a New York Freedom of Information Law ("FOIL") request to the Kings County District Attorney's office for records relating to his criminal case. In response to that request, on June 9, 2003, the office disclosed a six page Homicide Investigative Report. The Report identified the officer who recovered Profitt's clothing, and the police voucher numbers under which it was collected.
Petitioner then made a second FOIL request for these vouchers, and for the results of any scientific tests conducted on the clothing. On September 15, 2003, the office disclosed inter alia police voucher G909854 dated June 4, 1997, which indicated the recovery of Profitt's sneakers, jacket, shirt, T-shirt, jeans, and underwear.
On or around June 12, 2003, while petitioner was awaiting the office's disclosures, he commenced an Article 78 proceeding demanding that the office turn over all police vouchers from his case, and any results of scientific tests conducted on the vouchered evidence. In response, the office argued that this disclosure had already been made to petitioner's attorney before trial. The office provided a copy of an April 13, 1998 affirmation prepared by ADA Eaddy entitled "Rosario Material," listing a number of documents provided to counsel before trial under the reporting requirements of N.Y. Crim. Proc. Law § 240.45 and People v. Rosario, 9 N.Y.2d 286, 173 N.E.2d 881 (1961)*fn2 , including booking sheets, ballistics examination reports, handwritten detective notes, and grand jury testimony for all trial witnesses. The list includes entries for "Voucher #'s G909854-857, G909873, G909878" as well as a "District Attorney's Scratch Report," which listed in relevant part "Physical Evidence G909855- Various Clothing and personal affects [sic] of Decedent[.] P.O. Braithwaite, 26186, 67 PCT recov. and vouchered the above items." (See Opp. Aff. Ex. N at 10.) In reply, petitioner's trial counsel submitted a sworn affirmation that he was not provided the "Rosario Material" form, the police vouchers, or the test results before trial. (Mem. Law Supp. Am. Pet. ("Pet'r's Mem.") (Doc. No 13) at 18.)
In an order dated August 14, 2003, the Supreme Court denied without prejudice petitioner's request for police vouchers and scientific test results, ordering him to first attempt to recover them from his trial counsel. See Dupont v. Kings County, Dist. Attorney's Office, Index # 19065/03, 2003 WL 22011317, at *2 (N.Y. Sup. Aug. 14, 2003), aff'd in pertinent part at 15 A.D.3d 480, 790 N.Y.S.2d 505 (App. Div. 2d Dep't 2005).
V. Second § 440 Proceeding
By papers dated June 25, 2004, petitioner moved for a second time under New York Crim. Proc. Law § 440.10 for an order vacating his judgment of conviction. Petitioner, relying on the results of his FOIL request, claimed that the prosecutor deliberately withheld exculpatory material, namely Profitt's clothing. In the alternative, petitioner argued that if, in fact, the prosecutor had provided trial counsel with disclosures indicating police possession of the clothing, trial counsel's ignorance thereof constituted ineffective assistance. (Opp. Aff. Ex. M.)
As in petitioner's Article 78 proceeding, the People alleged that the vouchers and fifteen-page "scratch" report had been provided to petitioner before trial. (Opp. Aff. Ex. N. at 10.) The People also asked the Court to have Profitt's now-located clothing tested for the presence of gunshot residue patterns, and compared to the murder weapon to determine a muzzle-to-target distance. (Id. at 11.) Those tests determined that a "pattern of residue consistent with the discharge of a firearm was found around hole Q1 in the jacket" and that "[c]omparison of the residue pattern around hole Q1 with those generated by [the murder] weapon indicates a muzzle-to-target distance of less than 18" but not in contact with the jacket." (Id.) The People argued that Profitt's clothing had not been withheld, and that, in any event, the test results confirmed that the clothing was neither exculpatory nor impeaching.
By decision and order dated March 16, 2005, the New York Supreme Court, Kings County (Feldman, J.) denied petitioner's motion to vacate his judgment of conviction. The court rejected petitioner's argument that the People "deliberately misled the court when they stated that the clothing was not in their possession," concluding instead that it was "clear from the record that the trial assistant in making the representation failed to review her file carefully." (Opp. Aff. Ex. O at 2.) The court also concluded that "police reports, which were also available to the defense, revealed that the police had recovered decedent's clothing" and thus that any misrepresentation was "solely the result of carelessness." (Id. at 2--3.) The court noted that "tests belatedly conducted on the clothing in fact corroborated the testimony of the two witnesses concerning the close range of the shooting." (Id. at 3.) The court recognized that Scantelbury's testimony suggested a manslaughter verdict while Moffatt's testimony pointed toward depraved indifference murder, but concluded that the "result of testing on the clothing does not lessen the credibility of either witness" and therefore that "there is no reasonable probability that had the clothing been tested and available at ...