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Franklin v. Laclair

United States District Court, Second Circuit

September 5, 2013

FREDERICK FRANKLIN, Petitioner,
v.
DARWIN LACLAIR, Superintendent, Respondent.

REPORT & RECOMMENDATION

MICHAEL H. DOLINGER, Magistrate Judge.

Pro se petitioner Frederick Franklin seeks a writ of habeas corpus to challenge his 1986 judgment of conviction in the New York State Supreme Court, New York County, on charges of second-degree murder, second-degree attempted murder and first-degree assault. The trial court sentenced Franklin to concurrent terms of 25 years to life, 12 1/2 to 25 years, and 7 1/2 to 15 years, respectively, on these three convictions. Franklin is currently serving his sentence.

Petitioner asserts five grounds for relief. First, he contends that the prosecutor violated his rights under Brady v. Maryland , 373 U.S. 83 (1963), by not disclosing the minutes of a plea entered by the State's principal witness in March 1982. Second, he argues that the prosecutor engaged in misconduct by not correcting false testimony of the same witness as to the details of his prior agreed-upon plea and sentence. Third, he complains that the prosecutor bolstered false testimony by that witness when stating in summation that there was no evidence that the witness had received a quid pro quo for his testimony. Fourth, he urges that he was denied the effective assistance of appellate counsel, who did not argue prosecutorial misconduct on his direct appeal. Finally, he asserts that he was denied effective appellate counsel because his lawyer did not argue ineffective assistance of trial counsel based on the trial lawyer's failure to use five police reports turned over to him by the State.

Respondent has moved to dismiss the petition as untimely under 28 U.S.C. 2244(d). Petitioner opposes. For the reasons that follow, we recommend that the motion to dismiss be granted.

The Pertinent Facts

The charges against petitioner stemmed from the January 12, 1979 shooting of two men, one a gypsy cab driver, resulting in the death of the driver, John Burwell. The second victim, Robert Robinson, survived. A New York County grand jury returned a three-count indictment the same month, charging second-degree murder, second-degree attempted murder and first-degree assault and naming Timothy Kirby as the sole defendant. Kirby went to trial in March 1980, but the trial ended in a mistrial because of a jury deadlock. See People v. Kirby , 112 Misc.2d 906, 906-07, 447 N.Y.S.2d 606, 607 (Sup. Ct. N.Y. Cty. 1982), rev'd, 92 A.D.2d 848 , 460 N.Y.S.2d 572 (1st Dep't 1983).

Petitioner Frederick Franklin was arrested in July 1980 on an unrelated charge, and on October 31, 1980 a grand jury returned a superceding indictment naming him as well as Kirby on the three charges relating to the shooting of Burwell and Robinson. Kirby and Franklin went to trial together on February 21, 1981, but that trial also resulted in a mistrial, on March 29, 1981, when the jury was unable to reach a unanimous verdict. The defendants were retried starting in October 1981, but the same result followed, with the jury unable to agree, leading to the declaration of a mistrial on November 13, 1981. See People v. Kirby , 92 A.D.2d 848, 849, 460 N.Y.S.2d 572, 573 (1st Dep't 1983) (recounting trial history).

Following this series of deadlocks, the trial court granted a motion to dismiss the indictment, invoking the inherent authority of the court to dismiss based on the seeming futility of trying to obtain a unanimous verdict. Kirby , 112 Misc.2d at 910-13, 447 N.Y.S.2d at 609-10. On appeal, however, the Appellate Division reversed and sent the case back to the trial court for another retrial. Kirby , 92 A.D.2d at 849-50, 460 N.Y.S.2d at 573-74. Franklin appealed this decision to the New York Court of Appeals, which dismissed the appeal as not within its appellate jurisdiction since the challenged decision was not based solely on the law or on the law and "such facts which, but for the determination of law, would not have led to reversal." People v. Franklin , 63 N.Y.2d 1033, 1034, 484 N.Y.S.2d 814, 814 (1984) (citing N.Y. Crim. Proc. L. § 450.90(2)(a)).

Franklin's third trial (and Kirby's fourth) began on February 4, 1986. As characterized by both sides, the State's case relied significantly on the testimony of the surviving victim, Robert Robinson. At trial he admitted that in 1977 he had shot and killed an individual named Dondi Houze, described as a friend of the defendants, and that Kirby had sworn to avenge that attack. (Pet., dated May 25, 2012 (Dkt. No. 1) ("Pet.") Att. at p. 1). Robinson identified both defendants as the shooters. (Id.). This trial finally yielded a unanimous set of verdicts on February 20, 1986, as the jury convicted both men on all three counts. (Decl. of Allen J. Vickey, Esq., dated Dec. 21, 2012 (Dkt. No.) ("Vickey Decl.") at ¶ 5). On March 13, 1986, the trial court (Altman, S.C.J.) sentenced Franklin as indicated above. (Id.).

Franklin, represented by appointed counsel, appealed from his conviction to the First Department. On that appeal he argued that the conviction had been against the weight of the evidence in light of the lack of credibility of Robinson, that the trial court had erred in permitting evidence of Franklin's friendship with Kirby, that the prosecution had overemphasized evidence of Franklin's flight from the police, and that the trial judge had improperly allowed evidence of a statement made by Kirby. (Id. at ¶ 6). On June 2, 1988, the Appellate Division affirmed the conviction without opinion. People v. Franklin, 141 A.D.2d 1009, 530 N.Y.S.2d 424 (1st Dep't 1988). In the wake of that decision, petitioner sought leave to appeal to the New York Court of Appeals, which denied that request on September 6, 1988. People v. Franklin, 72 N.Y.2d 956, 534 N.Y.S.2d 670 (1988).

Petitioner did not seek a writ of certiorari. His next step in challenging his conviction did not take place until November 1992, when he filed a motion in the Appellate Division for a writ of error coram nobis premised on the claim that he had been denied the effective representation of counsel on his earlier appeal from his conviction. In support of that claim, he contended that counsel had failed to pursue an argument for prosecutorial misconduct - specifically, that the prosecutor had presented perjured testimony by Robinson about his own 1982 plea deal in connection with a host of pending charges, and that the prosecutor had then not only failed to correct the falsehood, but had later emphasized it in summation. (Vickey Decl. ¶ 8; Coram Nobis Mot., dated Nov. 16, 1992 ("Coram Nobis") (annexed to Franklin letter to the Court dated Feb. 11, 2013) at 5, 11-14, 18-33). In pursuing this Sixth Amendment claim, Franklin contended that Robinson, who had concededly been allowed to plead to a variety of serious charges in 1982 for which he received a six-year-to-life sentence, had falsely stated at petitioner's trial that his testimony against Franklin had not been a quid pro quo for that plea deal. (Vickey Decl. ¶ 8; Coram Nobis 17-20). Franklin further argued that this false testimony was then highlighted by the prosecutor in summation. That said, Franklin also noted that the prosecutor in summation had acknowledged that "some form of promise had been made to Robinson, and that prior trial records reflect that a deal [was] in fact made with Robinson for his testimony." (Coram Nobis 12) (brackets in original). Nonetheless, he complained that the agreement itself had not been put into evidence for the jury's consideration. (Id.).

On February 2, 1993 the Appellate Division denied Franklin's coram nobis motion without opinion. People v. Franklin , 190 A.D.2d 1101, 593 N.Y.S.2d 1009 (1st Dep't 1993). Petitioner then moved for reargument, which the court denied on April 15, 1993. People v. Franklin 192 A.D.2d 1142, 598 N.Y.S.2d 894 (1993).

Franklin's next step in direct connection with his criminal conviction did not take place until seventeen years later, in 2010, when he moved pursuant to Crim. Proc. L. 440.10 to vacate his conviction. (Vickey Decl. ¶ 10; Pet.'s 440.10 Motion (annexed to Vickey letter to the Court dated Jan. 30, 2013)). In the extended interim, and even before the 1993 denial of his coram nobis motion, Franklin engaged in a very lengthy process of seeking documents from the police, the prosecutors and even the New York Supreme Court court reporters, principally by requests under the N.Y. Freedom of Information Law ("FOIL"). The parties seem to differ somewhat in their account of these steps, with Franklin offering more detail, although not more documentation, [1] but for purposes of our analysis of the current motion, we will adopt petitioner's version of these events.

According to Franklin, he filed several FOIL requests in March 1989, seeking "information material' to [his] case, namely, the particulars of his arrest and the trial transcripts' of his present and prior trials". (Franklin Timeliness Aff., dated Aug. 23, 2012 ("Timeliness Aff.") att. 1 at 1st pg.). Some of his requests (relating to his arrest) were denied, and therefore on June 5, 1989 he filed an Article 78 petition in state court to compel production of "copies of certain documents relating to petitioner's 1980 arrest and subsequent conviction for murder." (Id.). By order dated August 8, 1990, the court directed the Police Department to respond further to the FOIL request, and on December 18, 1990 it provided eleven documents to petitioner. (Id. att. 2 at 1st pg.).

On February 25, 1991 Franklin submitted another FOIL request, seeking inter alia any motions and other documents filed in his criminal case. In response, on June 11, 1991 he received five police reports, which he characterizes as showing that Robinson had not identified him as one of the shooters. (Id.).[2] On January 13, 1992 Franklin delivered the five reports to his prior appellate counsel, who then reported to Franklin that he had not seen these documents when he was handling the appeal. (Id. att. 2 at 1st-2d pgs.; Dismissal Opp'n at Ex. A).[3]

In the wake of the former appellate counsel's report to Franklin, petitioner filed three more FOIL requests, on July 27, July 28 and August 24, 1992, respectively. These asked for police reports of any interviews with Robinson while he was in hospital on the day of the shooting. (Timeliness Aff. att. 2 at 2d pg.).

Between October 22, 1993 and June 15, 1994, petitioner submitted five additional FOIL requests to the Police Department, the District Attorney's Office and the Parole Board. They sought (1) any letters from the District Attorney summarizing any agreement with Robinson in exchange for his trial testimony, (2) any letters to the Parole Board seeking Robinson's early release, and (3) any police reports referring to Robinson having identified the shooters. (Id. att. 2 at 3d pg.). The District Attorney's Office denied Franklin's request on July 27, 1994, and the FOIL appeal officer upheld that denial on September 16, 1994. (Id.).

On February 10, 1995 petitioner filed his second Article 78 petition, seeking relief from this denial. The court ultimately denied his application, ruling on January 9, 1996 that the District Attorney had demonstrated that the requested documents had been previously furnished to Franklin's counsel as Rosario material prior to the criminal trial. (Id. att. 2 at 3d-4th pgs.). Franklin appealed that decision, but the Appellate Division, First Department, affirmed it on October 8, 1998, stating that "[defendant] is not, absent a showing that such documents are no longer available to him, entitled to material that was previously provided to his attorney(s)." Franklin v. Keller , 254 A.D.2d 83, 678 N.Y.S.2d 330 (1st Dep't 1998). (See also Timeliness Aff, att. 2 at 8th pg.).

In the interim, starting on March 4, 1996, an attorney for Franklin wrote to the District Attorney's Office seeking release under FOIL of any Rosario material disclosed at trial and any communications about Robinson's cooperation. (Id. att. 2 at 4th pg.). In response, on September 19, 1996 the attorney received copies of (1) two letters one from a Police Detective and the other from the prosecutor to Parole Officer Henry Conforti and (2) a letter dated January 6, 1981 from the prosecutor, stating that "[n]o promise or consideration has been given to Mr. Robinson for testimony." (Id. att. 2 at 5th pg.).

On October 2, 1996 petitioner made still another FOIL request, to the District Attorney's Office, asking for production of "information" concerning its "understanding" with Robinson. On October 28, 1996, the District Attorney's Office responded that it had no responsive documents other than what had previously been produced to him. (Id. att. 2 at 6th pg.). In the same period petitioner also pursued, by FOIL request, the minutes of Robinson's plea and sentencing from March 31, 1982. As a result of continuing correspondence with the court reporters from January to March 1997, he ...


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