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Chebere v. Phillips

United States District Court, Second Circuit

September 18, 2013

HECTOR CHEBERE, Petitioner,
v.
WILLIAM PHILLIPS, Respondent.

MEMORANDUM & ORDER

LORETTA A. PRESKA, Chief District Judge.

Pro se petitioner, Hector Chebere ("Chebere" or "Petitioner") filed a Petition for a Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, on September 6, 2003, seeking relief from his 1998 conviction in the Supreme Court of the State of New York. (Amended Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, ("Petition" or "§ 2254 Petition") [dkt. no. 2].) On Nov. 2, 2011, Magistrate Judge Debra C. Freeman issued a Report & Recommendation, recommending that the Petition be denied. ("R&R" or "Report") [dkt. no. 28]. For the reasons set forth below, the R&R is adopted and the Petition is DENIED.

BACKGROUND

I. Petitioner's Conviction

Upon a jury verdict, Petitioner was found guilty of two counts of Murder in the Second Degree, in violation of N.Y. Penal Law § 125.25[1] and [3], one count of Robbery in the First Degree, in violation of N.Y. Penal Law 160.15[2], one count of Robbery in the Second Degree, in violation of N.Y. Penal Law § 160.10[1], and one count of Kidnapping in the Second Degree, in violation of N.Y. Penal Law 135.20. (R&R at 9.) He was sentenced to 22 years to life on both murder counts, 12 and one-half to 25 years for first-degree robbery, five to 15 years for second-degree robbery, and eight and one-third to 25 years for second-degree kidnapping, all sentences to run concurrently. (Id. at 2.)

II. Petitioner's Motions Prior to this Habeas Petition

On August 1, 2001, Petitioner filed a direct appeal, and the Appellate Division unanimously affirmed the judgment convicting Petitioner. (R&R at 9.) In addition to filing a direct appeal, Petitioner, proceeding pro se, filed a motion to vacate his conviction pursuant to New York C.P.L.R. § 440.10(1) ("Section 440") on April 3, 1999. (Id. at 11.) The trial court denied Petitioner's Section 440 motion in its entirety. (Id. at 12.)

In July 1999, while Petitioner's motion to vacate was pending, Petitioner pursued Freedom of Information Law ("FOIL") requests for evidence to support his motion, specifically asking that the District Attorney of Bronx County ("DA's Office") disclose documents relating to Nick Quinones, one of the prosecution's witnesses at Petitioner's trial. (R&R at 14.) The DA's Office did not disclose all the documents, although it disclosed 481 documents. (Id.) Petitioner then filed an Article 78 Petition challenging the DA's Office's position that certain documents were appropriately withheld. (Id.) The Court dismissed the Article 78 petition, and did not require any further disclosure from the DA's Office. (Id.)

On December 8, 2003, Petitioner moved to renew his prior Section 440 motion to vacate on the ground that his FOIL litigation had, according to Petitioner, revealed evidence that the prosecutor had in fact withheld exculpatory evidence. (R&R at 14.) The trial court denied Petitioner's motion to renew on the ground that he had not presented any newly discovered evidence. (Id. at 15.)

Although the trial court initially dismissed Petitioner's Article 78 challenging the DA's Office's decision to withhold certain documents, the Appellate Division reversed in 2004, and remanded the matter for an in camera inspection of the withheld the documents. (R&R at 15.) The trial court inspected the documents and determined that only certain documents were exempt from disclosure under FOIL. (Id.)

On May 5, 2006, Petitioner moved, for a second time, to renew his motion to vacate his conviction under Section 440. (R&R at 16.) The trial court denied Petitioner's motion. (Id. at 17.)

By letter dated December 12, 2007, Petitioner submitted a second FOIL request requesting documents about Quinones. (R&R at 17.) The City Department of Investigation ("DOI") denied his request. Petitioner appealed the denial, and DOI denied his appeal. (Id. at 18.)

III. The Habeas Petition

Petitioner's Section 2254 petition asserted thirteen claims: (1) Petitioner's conviction was against the weight of the evidence and/or was based on insufficient evidence (§ 2254 Petition Attachment at 1); (2) Petitioner's conviction was based upon the "false" testimony of James Venson, which was the result of prosecutorial misconduct and violated Petitioner's due process rights (id.); (3) Petitioner was improperly prejudiced by the introduction of unnecessarily excessive evidence of his purported involvement in the drug trade (id.); (4) Petitioner was improperly cross-examined about highly prejudicial and non-probative allegations that he had abused his pregnant girlfriend (id.); (5) the trial court unjustifiably limited Petitioner's trial counsel's summation (id.); (6) the trial court's alibi instruction was improper because it failed to explain that Petitioner "had no burden to prove that he was not the person who committed the crime" (id.); (7) Petitioner's sentence was excessive (id.); (8) the prosecution withheld Brady materials regarding its alleged agreements with cooperating witnesses (id.); (9) the prosecution elicited false testimony from cooperating witnesses (id.); (10) Petitioner received ineffective assistance of trial counsel because his counsel did not, prior to trial, adequately investigate the crime scene or interview certain witnesses (id. at 2); (11) the double jeopardy clause prevents Petitioner from being retried (id.); (12) Petitioner was denied a "full and fair" hearing regarding the prosecution's alleged withholding of Brady material, in violation of his due process rights (id.); and, (13) Petitioner received ineffective assistance of counsel when his trial counsel failed to explore fully the circumstances surrounding Nick Quinones' testimony (id.).

IV. The Report & Recommendation

On November 1, 2011, United States Magistrate Judge Debra Freeman issued a Report & Recommendation. In the Report, Judge Freeman divided Petitioner's claims according to when they had been raised previously in other motions, if at all. (R&R at 24-25.) Judge Freeman determined the following: the first five claims were made by Petitioner on his direct appeal, claims 8 through 11 were raised by Petitioner in his Section 440 Motion, and the last two claims were newly added for this habeas petition. (Id. at 24.) Judge Freeman concluded that each of the claims should be dismissed, either as procedurally barred, non-cognizable, or without merit. (Id. at 25.)

V. Petitioner's Objections

By letter dated April 2, 2013, Petitioner filed objections to the Report. (Petitioner's Objection to Magistrate Judge's Report and Recommendation ("Petitioner's Objections") [dkt. no. 32].) In his objections to the Report, Petitioner states that he objects to "each and every recommendation contained in said R[&]R." (Petitioner's Objections at 1.) However, Petitioner does not present this Court with new arguments. Overall, ...


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