Alan M. Nelson, Lake Success, NY, for the Petitioner.
Rither Alabre, The Bronx District Attorney's Office, Bronx, NY, for the Respondent.
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
DENISE COTE, District Judge.
On July 6, 2010, petitioner Brian Henderson ("Henderson") brought this timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On August 11, counsel was appointed to represent Henderson. On December 2, the respondent was ordered to answer the petition. On December 3, the action was referred to Magistrate Judge George A. Yanthis for the preparation of a Report and Recommendation pursuant to 28 U.S.C. § 636(b) ("Report"). On September 5, 2013, Judge Yanthis issued a Report recommending that the petition be dismissed. On September 20, the Court received Henderson's objections to the Report. Having considered those objections, the petition is denied.
The facts underlying the petition are described in detail in the Report. Only those facts necessary to respond to objections to the Report are recited here.
Henderson was tried on, inter alia, a charge of attempted assault in the first degree. The charge arose out of a fight among inmates at Riker's Island, during which Pablo Pastrana ("Pastrana") sustained multiple lacerations and stab wounds. The state's position at trial was that Henderson attacked Pastrana. It relied on the eye witness testimony of two corrections officers who testified that they witnessed Henderson jab Pastrana with a metallic object and shortly thereafter saw Henderson place an object in a shower drain. A nine-inch shank with a sharpened edge was later retrieved from the drain. The defense's position at trial was that Henderson was not involved in the assault at all. Its principal witness was Pastrana, who testified to the jury that he got into a fight with "a Spanish brother." Henderson is not Hispanic.
During cross-examination, the state brought out inconsistencies between Pastrana's testimony and his statement in a report prepared by Officer Sheridan ("Sheridan Report") after the attack. Although the Sheridan Report is not part of the record, the trial judge characterized it as including a statement by Pastrana that "he cannot positively identify his attackers."
Also on cross-examination, the state asked questions that intimated that Pastrana was intimidated into testifying for Henderson. Pastrana insisted that he had not been intimidated by Henderson.
During summation, defense counsel asked rhetorically, "Why in a room full of inmates, did not one inmate come forward to say that Brian Henderson had anything to do with this?" During its summation, the prosecution again suggested that Pastrana was intimidated into giving his testimony.
On March 17, 2005, the jury found Henderson guilty of attempted assault in the first degree. On May 19, Henderson was sentenced principally to a prison term of sixteen years to life.
On appeal, Henderson raised multiple claims including, as relevant here, prosecutorial misconduct, a Brady violation, insufficient evidence to convict, and ineffective assistance of counsel. On April 15, 2008, the Appellate Division rejected these claims and affirmed Henderson's conviction. People v. Henderson , 50 A.D.3d 439 (1st Dep't 2008). One Justice dissented from the decision, but with respect to the prosecutorial misconduct claim only. This claim was authorized for appeal to the New York Court of Appeals. On November 23, 2009, that court unanimously rejected the prosecutorial misconduct claim. People v. Henderson , 13 N.Y.3d 844 (2009).
On July 6, 2010, Henderson filed a petition for a writ of habeas corpus in this Court. Henderson's petition raises the four constitutional claims that were ...