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Whitley v. Ercole

United States District Court, S.D. New York

July 9, 2013

ROBERT E. ERCOLE, Superintendent, Green Haven Correctional Facility, Respondent

For Darryl Whitley, Petitioner: Barry Robert Ostrager, Juan Alberto Arteaga, Simpson Thacher & Bartlett LLP (NY), New York, NY.

For Robert Ercole, Respondent: Alan Gadlin, New York County District Attorney's Office, New York, NY; Dana Renee Poole, District Attorney, New York County, New York, NY.


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ALVIN K. HELLERSTEIN, United States District Judge.

Petitioner Darryl Whitley seeks a writ of habeas corpus on the ground that his trial counsel was constitutionally deficient in failing to request that the trial court admit into evidence the recantation of one of the prosecution's witnesses. Whitley presented the same claim to the New York courts, which held in 2007 and again in 2009 that Whitley's trial counsel had not been ineffective. Because I find that the state court's conclusion was not unreasonable,

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I defer to it, and I deny Whitley's petition.


The facts and procedural history of this case were discussed extensively in my previous opinion and in the Second Circuit's decision in this case. See Whitley v. Ercole, 725 F.Supp.2d 398 (S.D.N.Y. 2010) rev'd and remanded, 642 F.3d 278 (2d Cir. 2011), cert. denied, 132 S.Ct. 791, 181 L.Ed.2d 489 (2011). I summarize the key facts below for the purpose of explaining my decision.

a. The Murder of Dr. Wood and Subsequent Investigation

On the evening of November 2, 1981, Dr. John Chase Wood, 31, took a break from a long shift at Columbia Presbyterian Hospital in upper Manhattan to visit his pregnant wife at their apartment. Dr. Wood, wearing a white lab coat and carrying a stethoscope, soon headed back to the hospital, walking north along Riverside Drive toward 168th Street. Several blocks from the hospital, two men accosted Dr. Wood, demanding prescription drugs. Dr. Wood resisted. One of the attackers drew a .22 caliber handgun and fired at Dr. Wood, piercing his heart and lung. The assailants fled, and Dr. Wood was rushed to Columbia Presbyterian, where he died in the hospital.

New York Police Department Detective Gennaro Giorgio was assigned to investigate the murder. The assailants, however, could not be identified. The case grew cold, and, for thirteen years, no one was charged in connection with the case. Then, in July 1994, police arrested Patrick Raynard McDowell in connection with the killing, accusing him of being the shooter.[1] In March 1995, Whitley also was arrested, charged as McDowell's accomplice.

b. Whitley's First Trial

Whitley's trial began November 19, 1997. No physical evidence tied Whitley to the crime. Instead, the evidence against Whitley consisted largely of the testimony of childhood friends who, cooperating with authorities, testified that Whitley had told them he had been involved in the shooting. One of those friends, Glenn Richardson, grew up on 158th Street, the same street where Whitley had lived at the time of the murder, and six blocks from the scene of the crime. Richardson testified that in 1981, before Wood's murder occurred, he lent McDowell a .22 caliber revolver. After the murder, Richardson ran into McDowell on the street and asked for his gun back. McDowell refused to return the gun, telling him it was " dirty," meaning that it had been used. Richardson did not believe McDowell, so he went to see Whitley to find out if he knew what had happened. Richardson testified that when he questioned Whitley about the gun, Whitley responded by asking Richardson if he had heard about the doctor being killed on Riverside Drive. Whitley then told Richardson, in " pig latin," that " he didn't have to do that." Whitley explained that he and McDowell had been looking for someone to rob on Riverside Drive, they ran into the doctor, and McDowell shot him.

Richardson testified that he had received a substantial benefit from helping the police with their case against Whitley. After being arrested for drug conspiracy in 1993, Richardson faced a 20-year mandatory minimum sentence. Indeed, Detective Giorgio promised Richardson that he

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would make sure that Richardson served the full 20-year term unless he provided assistance. However, a plea deal was made in reliance on Richardson's cooperation in Whitley's case, and Richardson was sentenced to only 75 months in jail.[2]

On December 3, 1997, the jury reported that it was deadlocked and unable to reach a verdict. Justice Ronald A. ...

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