United States District Court, N.D. New York
JAMES K. SINGLETON, Jr., Senior District Judge.
Vaughn Avery, a New York state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Avery is currently in the custody of the New York State Department of Corrections and Community Supervision and is incarcerated at Auburn Correctional Facility. Respondent has answered, and Avery has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
On July 26, 1996, Avery was charged with one count of second-degree murder based on a felony murder theory, two counts of first-degree attempted robbery under two different legal theories, and one count of fourth-degree criminal possession of stolen property in connection with the killing of a grocery store clerk. On direct appeal of his conviction, the Appellate Division summarized the following facts underlying the indictment:
On an evening in 1996, [Avery], Jason Clark and Antonio Spears gathered near a grocery store in the City of Albany. They encountered an acquaintance of Spears who answered some questions about the store after exiting. After the acquaintance left the area, [Avery] and Clark, armed with handguns, entered the store. The store owner was stocking shelves and the victim was working at the front counter. The owner testified that he heard two shots, looked up, and saw two men with covered faces standing near the store entrance, one of whom was holding a gun. He threw jars at the men and they fled. A resident of an upstairs apartment heard the shots, ran downstairs and saw two men fleeing on foot. The victim had been fatally shot by Clark. The next morning police went to the home of Clark and [Avery] and placed both men in custody. Clark directed police to two handguns concealed in his bedroom.
People v. Avery, 915 N.Y.S.2d 356, 357-58 (N.Y.App.Div. 2011).
Clark pled guilty to all but one count of an eight-count indictment and inculpated both Avery and Spears in his plea allocution. Spears was tried separately and acquitted of felony murder and attempted robbery in connection with the grocery store incident, but admitted and was convicted of an unrelated gun store robbery.
Avery proceeded to jury trial in May 1997. After the conclusion of the People's case-inchief, Avery moved to dismiss all counts in the indictment for failing to present legally sufficient evidence to the jury. The court denied the motion in its entirety after the conclusion of the defense's case and submitted to the jury each count of the indictment relating to Avery. The jury found Avery guilty of second-degree murder (felony murder) and two counts of first-degree attempted robbery. The jury acquitted him of the criminal possession of stolen property charge.
On July 30, 1997, the court sentenced Avery to an imprisonment term of 25 years to life for the felony murder conviction. The court also sentenced him to two 7½-to-15-year indeterminate prison sentences for the attempted robbery convictions.
Over a decade later, Avery, proceeding through new counsel, moved to vacate the judgment pursuant to New York Criminal Procedure Law ("CPL") § 440.10, arguing that trial counsel was ineffective because he failed to: 1) conduct a reasonable pre-trial investigation; 2) interview and call Spears as an alibi witness; 3) investigate whether the acquaintance, who testified for the prosecution, committed perjury based on bias against Spears; 4) investigate Gloria Aleman, an eyewitness who testified for the prosecution and who Avery claimed later recanted her trial testimony; 5) interview the owner of the grocery store who Avery alleged stated in a later interview that there had only been one robber; 6) interview Clark and Spear's girlfriend which, according to Avery, would have revealed that Clark's statements to the police and during his plea allocution were not truthful; and 7) call an expert witness on cross-racial identification.
At an evidentiary hearing on the matter, Clark testified that he was by himself when he shot and killed the grocery store clerk. Clark acknowledged that his version of events contradicted his trial testimony and prior statements he made to the police and at his plea allocution. He testified that, at the time of the murder, he was sixteen years old and scared and that his attorney told him that his statement at the plea allocution had to match the statement he had given to police. Clark further denied discussing with Avery a plan to rob the store. On cross-examination, Clark stated that Avery could have been in the store at the time of the shooting but that Clark did not see him. The prosecutor also impeached Clark with his testimony from the plea allocution in which Clark stated that he and Avery had both entered the grocery store with guns drawn and that all three men had discussed the robbery and planned to split any proceeds equally.
Gloria Aleman testified with the assistance of an interpreter and noted that she did not have an interpeter at trial. She rated her English as a "0" at the time of the trial and stated that her English was "a little better" at the evidentiary hearing. She testified that she was watching television with her boyfriend's children when she heard what sounded like firecrackers. She went to the bedroom where her boyfriend was sleeping, and he told her that the sound was gunshots. Her boyfriend went down to see what had happened and told Aleman to stay in the apartment. She went down four steps of the staircase outside their apartment and saw two young men holding the door to the grocery store open and then running away.
The grocery store owner testified that, on the night of the shooting, he heard shots and saw one person at the door. He then began throwing what was in his hands. On crossexamination, he testified that he did not remember if he saw one person or two people in the store and acknowledged that he testified at trial that he had seen two guys near the entrance of the store.
A private investigator also testified that he met with Aleman on April 26, 2004. He opined that, based on his conversation with Aleman and the layout of her apartment, it would have taken approximately 35 to 45 seconds for Aleman and her boyfriend to go downstairs after hearing the gunshots.
Avery submitted a counseled post-hearing memorandum of law arguing that: 1) Clark's recantation of his police statements, plea allocution, and trial testimony was newly-discovered evidence warranting a new trial; 2) Aleman's trial testimony was unrealiable because, without an interpreter, she could not have understood the questions she had been asked; 3) Aleman's hearing testimony showed that the two boys that she saw running away from the grocery store could not have been Avery and Clark; 4) Aleman's 2004 affidavit, which was obtained in the presence of the private investigator, was not tainted because she had not received information about the case before providing the affidavit; 5) the hearing evidence suggested a likelihood of police fabrication; 6) the verdict would have been different if the jury had heard the newlydiscovered evidence; and 7) trial counsel's ineffectiveness caused prejudice to Avery.
On December 4, 2009, the court denied the motion in its entirety. The court concluded that Aleman did not recant her trial testimony but rather "confirmed the critical elements of her trial testimony, namely that after hearing shots or firecrackers, she came downstairs and witnessed two males running from the grocery store." The court likewise held that a review of the trial transcript demonstrated that Aleman understood and appropriately responded to the questions posed at trial and that the hearing testimony, with the assistance of an interpreter, confirmed the trial testimony. In finding no issue with Aleman's comprehension of the English language, the court found it significant that the investigator interviewed Aleman in English and without the assistance of an interpreter and that Aleman's affidavit was in English. The court also found Clark's hearing testimony not credible and thus rejected it. The court likewise rejected Avery's ineffective assistance of counsel claim, holding that trial counsel's performance as a whole demonstrated meaningful assistance of counsel and thus satisfied the constitutional requirements. The court rejected all remaining contentions.
Again proceeding through counsel, Avery appealed his conviction, arguing that: 1) the evidence at trial was legally insufficient to support the conviction; 2) the trial court erred by failing to convey jury instructions with the appropriate legal standard; 3) the prosecution violated Avery's confrontation rights by failing to provide an interpreter for Aleman; 4) the prosecution violated their Brady  obligations by failing to disclose to the defense that Aleman had requested an interpreter for trial; 5) the prosecution violated Brady by failing to disclose a police statement made by Aleman; 6) the § 440 court erred in rejecting Clark's testimony; 7) trial counsel was ineffective for failing to conduct reasonable investigations and to interview an alibi witness; 8) the prosecution's weak identification evidence failed to identify Avery; 9) the police fabricated statements attributed to Clark, Spears, Avery, and Aleman; 10) the verdict would have been different had the jury heard the newly-discovered evidence; and 11) trial counsel's "multiple failures" prejudiced Avery.
The Appellate Division unanimously affirmed the judgment against Avery in a reasoned opinion. Avery, 915 N.Y.S.2d at 362. Avery filed a counseled leave application in the Court of Appeals, raising the following claims: 1) counsel was ineffective for failing to preserve the legal sufficiency claim and the evidence was legally insufficient to support the conviction; 2) the jury instructions were improper; 3) the prosecution withheld Aleman's written statement to the police; 4) the prosecution failed to disclose Aleman's request for an interpreter; 5) police fabrication of witness statements violated Avery's constitutional rights; 6) Avery received the ineffective assistance of trial counsel; and 7) the cumulative effect of the trial errors deprived Avery of a fair trial. The Court of Appeals summarily denied the leave request on June 7, 2011. People v. Avery, 17 N.Y.3d 791 (N.Y. 2011).
Avery timely filed a Petition for a Writ of Habeas Corpus to this Court on August 27, 2012. He ...