United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE MICHAEL A. TELESCA United States District Judge
se petitioner Gregory Bernard(“petitioner”
or “Bernard”) seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 on the basis that he is
being unconstitutionally detained in respondent Paul
Chappius, Jr.'s (“respondent”) custody.
Petitioner is incarcerated pursuant to judgments of
conviction entered against him on May 29, 2008 and September
25, 2008, in Monroe County Court of New York State
(“Monroe County Court” or the “trial
court”), following jury verdicts convicting him of
murder in the second degree and criminal possession of a
weapon in the second degree. Petitioner was sentenced to a
determinate prison term of 12½ years on the weapon
possession count, and a concurrent indeterminate prison term
of 25 years to life on the murder count.
petition, petitioner asserts that his continued incarceration
is unconstitutional because: (1) the prosecution violated
Brady v. Maryland, 373 U.S. 83 (1963), by failing to
timely disclose certain grand jury testimony; and (2) the
trial court denied him due process by failing to sua
sponte reopen its pre-trial hearing on the admissibility
of certain identification evidence following the disclosure
of the grand jury testimony. For the reasons discussed below,
the Court finds that petitioner has not shown he is entitled
to federal habeas relief.
Factual Background and Procedural History
The Underlying Crime and Investigation
convictions arise out of the shooting death of Raymundo
Rodriguez on September 9, 2007. In September 2007, petitioner
was involved in selling heroin and cocaine from Cynthia
Bashaw's backyard on Clifford Avenue in Rochester. Ms.
Bashaw testified at petitioner's first
trial that petitioner would obtain the drugs
from Steven Rivera, who was known to her as “Crown,
” and from a second individual known to her as
“Josh.” Ms. Bashaw further testified that she
permitted petitioner, Mr. Rivera, and “Josh” to
store drugs and three handguns in her bedroom dresser.
early morning of September 9, 2007, Ms. Bashaw was in bed
when she heard a lot of noise coming from outside. She
subsequently discovered petitioner, Mr. Rivera, and
“Josh” in her driveway. Ms. Bashaw let
“Josh” into her apartment, whereupon he removed
something from her dresser and then left. After his
departure, Ms. Bashaw noticed that the three handguns, which
she had seen earlier that day, were missing from her dresser.
the early morning of September 9, 2007, Josue Torres left a
hip-hop club in Rochester and drove to an after-hours party
at a house on Roycroft Drive. Mr. Torres testified that after
attending the party for 15 to 20 minutes, he exited the house
and spoke to Mr. Rivera, whom he had known since childhood.
Mr. Torres further testified that Mr. Rivera then went over
to a group of four men standing nearby and that he witnessed
handguns being passed around before hearing one of the men
say “let's bust him, ” which Mr. Torres
understood to mean they intended to shoot someone. As. Mr.
Torres walked away, he heard a shot. He looked back and saw
petitioner, Mr. Rivera, and a third man shooting at Mr.
Rodriguez. Mr. Torres testified that he heard one of the men
say “this is for my cousin, this is for my
cousin” as they shot at Mr. Rodriguez. Mr. Torres hid
behind his truck, and the three shooters ran away, passing by
him. Mr. Rodriguez died at the scene of multiple gunshot
approximately 3:30 a.m. on September 9, 2007, Rochester
Police Department (“RPD”) Officers Korey McNees
and Nicholas Gulla responded to the scene on Roycroft Drive.
Officer McNees testified that Mr. Rodriguez's body was
lying on the ground along with shell casings and projectiles.
Bashaw testified that sometime after 4:00 a.m. that same day,
she was awoken when Mr. Rivera's truck pulled into her
driveway playing loud music. Ms. Bashaw saw petitioner, Mr.
Rivera, “Josh, ” and a fourth individual known to
her as “Punto.” “Josh” entered her
bedroom and then left again. After his departure, Ms. Bashaw
looked in her dresser and saw two guns. Ms. Bashaw further
testified that later that day, she and petitioner were in her
backyard and petitioner told her that he had shot an
individual named “Ray-Ray” at an after-hours
party and that he was going to get away with it.
Torres was interviewed by the RPD the day after the shooting.
He told the RPD that Mr. Rivera was one of the shooters and
provided physical descriptions of the other two shooters.
September 27, 2007, RDP Officer Myron Moses executed a search
warrant for Ms. Bashaw's apartment. Officer Moses
recovered two handguns from her dresser, along with a .22
caliber live round and a quantity of suspected cocaine,
heroin, and ecstasy pills.
September 28, 2007, the RPD presented a photographic array to
Mr. Torres and Mr. Torres identified petitioner as one of the
shooters. The details of this identification are discussed
October 11, 2007, petitioner was interviewed by RPD
Investigator Gary Galetta. Petitioner was given his
Miranda warnings and agreed to speak to Investigator
Galetta. Petitioner told investigator Galetta that he sold
drugs on Clifford Avenue for Mr. Rivera. Petitioner further
stated that he had been at the after-hours party where Mr.
Rodriguez was killed, but claimed that he gave his handgun to
Josh and that Josh and Mr. Rivera were the ones who fired at
Mr. Rodriguez. Petitioner then traveled to Clifford Avenue in
Mr. Rivera's vehicle. Later in the same interview,
petitioner changed his story, and claimed that the shooters
were actually individuals known to him as “Willie
B” and “Collie Bling.”
analysis was performed on the two handguns recovered from Ms.
Bashaw's apartment. This analysis showed that two .40
caliber shell casings and a projectile found at the scene of
Mr. Rodriguez's shooting were fired from a semi-automatic
pistol recovered from Ms. Bashaw's apartment.
Additionally, two .38 caliber projectiles or bullets
recovered at the shooting scene were fired from the revolver
recovered from Ms. Bashaw's apartment. Police also
recovered a .45 caliber shell casing from the shooting scene,
which was not fired from either of the guns recovered from
Ms. Bashaw's apartment.
to petitioner's first trial, petitioner moved to suppress
Mr. Torres' identification of him. The trial court held a
hearing pursuant to United States v. Wade, 388 U.S.
218 (1967), to determine whether the identification procedure
by which Mr.
identified petitioner as one of the shooters (namely, the
photographic array) was unduly suggestive. At the
Wade hearing, RPD Sergeant Mark Mariano testified
that, on September 28, 2007, he showed a photograph array to
Mr. Torres and that Mr. Torres identified petitioner,
stating “he is one of the shooters.” ...