The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
On July 24, 2004, Petitioner was convicted of Murder in the Second Degree, and Criminal Possession of a Weapon in the Second and Third Degrees after a jury trial in Onondaga County. Petitioner commenced this action seeking habeas corpus relief pursuant to 28 U.S.C. § 2254 on the following grounds: (1) he was denied effective assistance of counsel; (2) his Miranda rights were violated; (3) the prosecution committed a Brady violation; (4) he was convicted based on insufficient evidence; and (5) there is newly discovered evidence. See Dkt. No. 1.
Currentlybefore the Court are Petitioner's objections to Magistrate Judge Hummel's Report and Recommendation in which he recommended that this Court deny the petition. See Dkt. No. 19.
On the evening of September 29, 2003, Antonio Broadnax ("Petitioner") shot and killed Steffon Gabriel in the City of Syracuse. See Dkt. No. 13-1 at 75-76.*fn2 Gabriel was shot in the head. See id. at 428-29. Petitioner's brother, Michael Broadnax, and mother, Scarlett Broadnax, were standing at the scene when police arrived. See id. at 64. After questioning Michael and Scarlett Broadnax and the victim's girlfriend, Petitioner became the main suspect in the murder. See id. at 83-85. Michael and Scarlett Broadnax both told police that they saw Petitioner fleeing the scene of the murder just after hearing the gunshot and that he look frightened. See id. at 74-76.
Police arrested Petitioner after discovering outstanding warrants for his arrest in New York City. See Dkt. No. 13-23 at 48, 54. Based upon those warrants, he was arrested at the home of his uncle, Lloyd Broadnax. See id. at 48-54. Holly Rao, Lloyd Broadnax's girlfriend, was also present and told police that a gun was hidden in a storage room outside the apartment. See Dkt. No. 13-1 at 76. Police later found a gun and magazine inside a cereal box in that storage room. See Dkt. No. 13-25 at 183-90. Police determined that the gun found in the storage room matched the cartridge casings found at the crime scene and the bullet in the victim. See id. at 189, 235-41.
Petitioner was then brought to the Criminal Investigation Division (C.I.D.) of the Syracuse police department where he was questioned by police regarding Gabriel's murder. See Dkt. No. 13-23 at 55-56. Petitioner told police that Gabriel had come to his apartment earlier in the evening and began banging on his bedroom door while he was in the bedroom with his girlfriend. See id. at 89. Gabriel walked in on Petitioner while he was having sex with his girlfriend and accused Petitioner of owing him money. See id. at 89-90. Petitioner then stated that he left the bedroom to confront Gabriel, whom Petitioner claimed had a knife. See id. at 90. Gabriel's girlfriend, along with one of Petitioner's family members, then removed Gabriel from the apartment. See id. at 90-91. Petitioner then walked his girlfriend home and, on his return to the apartment, encountered Gabriel at the phone booth on the corner of Salina and Laurel Streets. See id. at 91. They had a verbal exchange and according to Petitioner, Gabriel "took a swing" at him. See id. Petitioner told police that he then walked away. See id. Police asked Petitioner whether he killed Gabriel, at which point Petitioner stated that if he was arrested he was never leaving jail again, and requested a lawyer. See id. at 92-93. Police also found blood on Petitioner's shoes that matched Gabriel's DNA. See Dkt. No. 13-25.
Petitioner was later arrested, tried, and convicted of Murder in the Second Degree and Criminal Possession of a Weapon in the Second and Third Degree. See Dkt. No. 13-1 at 7.
In April 2004, a suppression hearing was held, during which three detectives and Petitioner testified. See Dkt. 13-23 at 38-213. Syracuse Police Sergeant Gerald Birardi testified that some time after 10:00 a.m. on September 30, 2003, he and other detectives arrested Petitioner, based on unrelated outstanding warrants, at the home of Petitioner's uncle, Lloyd Broadnax, in Syracuse, New York. See id. at 41-54. Petitioner was then transported to the C.I.D. of the Syracuse police station and placed in an interview room. See id. at 55-56. According to Birardi, Petitioner did not ask for counsel and he was handcuffed when Birardi left the interview room. See id. at 69, 71.
Syracuse Police Detectives Karl Schmidt and Ivan Jimenez testified that at approximately 11:35 a.m., they met Petitioner in a C.I.D. interview room. See id. at 79, 175. Detective Schmidt testified that Petitioner did not appear intoxicated at the time of the interview and both detectives testified that he was cooperative. See id. at 81-82, 178. Detective Schmidt testified that the detectives then read Petitioner his Miranda rights from a cover sheet. See id. at 82. Detective Jimenez read the rights to Petitioner and Petitioner initialed next to each right after it was explained. See id. at 84-86. The detectives then asked Petitioner if he was willing to discuss Gabriel's homicide with them and he consented. See id. at 86. Petitioner then signed the Miranda form. See id. Detective Schmidt also testified that Petitioner did not request a lawyer and that no threats or promises were made to him. See id. at 87-88.
Petitioner told the detectives that he had a verbal altercation with Gabriel earlier in the evening at his mother's apartment where he lived. See id. at 89-90. He then walked his girlfriend home and, upon his return, encountered Gabriel at the phone booth. See id. at 91. They had another verbal altercation and Gabriel "took a swing" at Petitioner. See id. Petitioner told the detectives that he then walked away. See id. When asked if he killed Gabriel, Petitioner responded that if he were arrested he was never leaving jail again. See id. at 92. At this point, Petitioner asked to speak with a lawyer and the interview ended. See id. at 92, 94.
Detective Jimenez largely confirmed the testimony of Detective Schmidt. See Dkt. No. 13-23 at 171-81. Detective Jimenez, however, did not recall Petitioner saying anything more when asked if he had murdered Gabriel. See id. at 180-81. Both Detectives testified that the interview lasted approximately twenty to thirty minutes. See id. at 92, 181.
Petitioner testified that he did not initial the Miranda form and signed it without reading it. See id. at 135. He also testified that the detectives never actually read his rights to him. See id. at 136. Petitioner testified further that he repeatedly requested a lawyer but the detectives continued questioning him and kept him in the interview room for hours. See id. at 137-44. He denied saying anything to police about Gabriel's murder. See id. at 137, 140-44. He also claimed that he was threatened with a harsh sentence if he did not confess and was punched in the stomach in an effort to get him to talk about the homicide. See id. at 137, 139-141, 143.
At the conclusion of the hearing, the court orally issued findings of fact and conclusions of law. The court found that Petitioner's hearing testimony was "incredible," and "len[t] no truth or v[e]racity to that testimony at all." See id. at 211. Based upon the credible testimony of the police witnesses, the court found that Petitioner was properly advised of his Miranda rights prior to questioning, and that Petitioner initialed and signed the Miranda waiver form, indicating that he understood his rights and was willing to talk to the detectives without an attorney. See id. at 206-10. The court further found that Petitioner was not intoxicated at the time of the interview, and that Petitioner's waiver of his rights and oral statements to the detectives were not induced through threats, promises, or physical abuse. See id. at 208-10. The court thus concluded that Petitioner's oral statements to the police during the interview were admissible, as they were knowing, intelligent, and voluntary beyond a reasonable doubt. See id. at 209-11.
On the day the trial began, the prosecution turned over the grand jury
testimony and police statement of Holly Rao, Lloyd Broadnax's
girlfriend. See Dkt. No. 13-25 at 2-4. In those statements, Rao
claimed that on the night of the murder, she overheard Petitioner tell
Lloyd Broadnax that Gabriel had attacked him with a knife, and he
feared for his life. See id. at 4-6. Petitioner's counsel made a
motion for a mistrial based upon a Brady violation.*fn4
See id. at 2. The court denied the motion, finding that the
statements were not Brady material because Petitioner had access to
that information through Lloyd Broadnax's statement and through
Petitioner himself, because both were parties to the conversation. See
id. at 9-11. The court further found that Petitioner was not
prejudiced by the belated disclosure because Holly Rao was not
testifying that day, leaving the defense time to prepare. See id. at
The Prosecution's case rested primarily on circumstantial evidence and the testimony of the police officers involved. During the trial, Detective Hamberger first testified that he interviewed both Michael and Scarlett Broadnax. See id. at 76-77. The detective testified that after talking to those witnesses several times and for several hours, Petitioner was the main suspect in Gabriel's murder. See id. at 84-85. Hamberger never testified as to any actual statements made by either witness, only that he interviewed them. See id. at 74-86. Detective Jimenez again offered testimony, which was consistent with the testimony he provided during the Huntley hearing. See id. at 370-88. Namely, he discussed how Petitioner agreed to speak to the police without counsel present and then told Jimenez that Gabriel showed up at the apartment, walked in on Petitioner and his girlfriend having sex, brandished a knife, and was promptly removed from the apartment. See id. at 380-81. Petitioner then walked his girlfriend home and saw Gabriel as he was returning to the apartment. See id. at 381-82. Gabriel began arguing with Petitioner, "took a swing at him," and then Petitioner left to go home. See id. at 382.
The medical examiner testified that the cause of death was a single gunshot wound to the head, and based upon the autopsy and her medical opinion, the manner of death was homicide, as stated on Gabriel's death certificate. See id. 433-34. Moreover, police recovered a shell casing from the sidewalk by the victim and the bullet from the victim, but did not recover a knife. See id. at 114-25, 434-37. A witness also testified that he had seen a man at the phone booth where Gabriel's body was found, and another man yelling at him only moments before hearing a gunshot. See id. at 400-02.
When police executed a search warrant of Lloyd Broadnax's home, where Petitioner had been staying and was arrested, a loaded nine millimeter, semi-automatic handgun was recovered. See id. at 182-92, 199-201, 213-18. Ballistics determined that the shell casing found at the scene of the crime as well as the bullet recovered from the victim were both discharged from that gun. See id. at 226-36, 238-41, 262-81. An expert in blood spatter testified that the blood drops found on Petitioner's boots were consistent with small droplets of blood that might project downward from shooting someone from only a few feet away. See id. at 129-31. DNA evidence later confirmed that this blood was from the victim. See id. at 321-31, 357-58.
Thomas Niland, the vice-president of the company where Lloyd Broadnax worked, also testified. See id. at 206-08. The Prosecutor had asked Niland to check the time records from the evening of the murder. See id. at 208-09. Niland testified that company records showed that Lloyd Broadnax had been working from six p.m. to ten p.m. that night. See id. at 209.
During the closing arguments, the Prosecution stated that Petitioner had admitted to killing Gabriel when he told police that he was never getting out of jail if arrested. See id. at 476. The Prosecution also stated in summation that intent had been proven through the fact that Gabriel was shot in the head. See id. at 478. The Prosecution further stated that it was uncontroverted that Petitioner had his Miranda rights read to him. See id. at 482. Petitioner's counsel countered the Prosecution by arguing in summation that the Prosecution was improperly trying to imply guilt through Petitioner's assertion of his right to counsel. See id. at 469-70. Moreover, Petitioner's counsel argued that the detectives who recalled Petitioner stating that he was never getting out of jail had not taken any notes during the interview and could not remember other details of their encounter with Petitioner. See id. Petitioner was convicted on all charges. See id. at 623-26.
After the trial concluded, Lloyd Broadnax signed an affidavit in which he stated that he found the murder weapon the night before the shooting and kept it in his apartment. See Dkt. No. 13-26 at 287-88. Petitioner then made a motion to set aside the verdict based upon this newly discovered evidence. See id. at 288. The court found the affidavit to be "patently unbelievable," given the affidavit of Holly Rao and the blood evidence found on Petitioner. See id. at 290-93. The court also found that the evidence could have been discovered by simply talking to Lloyd Broadnax. See id. at 293. Finally, the court concluded that the affidavit would not have changed the outcome of the trial and, therefore, the motion was denied. See id. at 295-96.
Petitioner was convicted of Murder in the Second Degree and Criminal Possession of a Weapon in the Second and Third Degrees. See Dkt. No. 13-1 at 8. Petitioner filed a direct appeal in the Appellate Division, Fourth Department, asserting the following: (1) the Prosecution violated Brady by failing to timely produce Holly Rao's police statement and grand jury testimony; (2) the conviction for second-degree murder was against the weight of the evidence and based on insufficient evidence; and (3) newly discovered evidence in the form of an affidavit from Lloyd Broadnax had "cast significant doubt upon the verdict." See Dkt. No. 13-4.
On June 13, 2008, the Appellate Division unanimously affirmed the conviction. See People v. Broadnax, 52 A.D.3d 1306 (4th Dept. 2008). The court held that the statement and testimony of Holly Rao did not constitute Brady material because the information was available to Petitioner because he was a party to the conversation, it was also available through Lloyd Broadnax, and it would not have revealed any essential information that Petitioner did not already know. See id. at 1307. The court also held that the claim of insufficient evidence, with respect to the element of intent, was not preserved for review. See id. However, the court found that in any event the claim was without merit because intent may be inferred from the defendant's conduct and the circumstances surrounding the crime; thus, the Prosecution had presented sufficient evidence with regard to intent. See id.
The court also rejected the claim that the county court erred in denying Petitioner's motion pursuant to CPL § 330.30(3) to set aside the verdict on the ground of newly discovered evidence. Broadnax, 52 A.D.3d at 1307-08. The court found that the trial court properly determined that the affidavit prepared by Lloyd Broadnax was not believable. See id. at 1308. The court also held that, in any event, the evidence could have been produced at trial with the exercise of due diligence and it would not have produced a different result at trial. See id. Petitioner then sought leave to appeal to the Court of Appeals, raising the same claims raised in the Appellate Division. See Dkt. No. 13-7 at 2-3. The Court of Appeals denied leave on October 30, 2008. See Dkt. No. 13-9.
Petitioner filed a coram nobis petition in the Appellate Division on May 7, 2009, asserting that his appellate counsel on direct appeal erred by (1) not asserting a claim that the admission of his statements to police violated his Miranda rights; (2) not asserting that Petitioner's trial counsel erred in not objecting to Detective Hamberger's testimony that Petitioner became a suspect after speaking to his mother, grossly delaying the appeal, and failing to file a motion for DNA testing under CPL § 440.30(1-A). See Dkt. No. 13-10 at 2-3, 10-14. The Appellate Division summarily denied the motion. People v. Broadnax, 66 A.D.3d 1499 ...