Bisnauth v. Morton J.R

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

FILED

CLERK

No. 18-CV-4899 (JEB)

1:41 pm, Aug 09, 2021

U.S. DISTRICT COURT

RUDOLPH BISNAUTH, EASTERN DISTRICT OF NEW YORK

LONG ISLAND OFFICE

Petitioner,

VERSUS

ROBERT MORTON J.R.,

SUPERINTENDENT OF THE DOWNSTATE

CORRECTIONAL FACILITY

Respondent.

MEMORANDUM AND ORDER

August 9, 2021

JOSEPH F. BIANCO, Circuit Judge (sitting by Law. § 60.35; (2) the state court wrongfully

designation): denied petitioner’s motion for a missing

witness charge; (3) his conviction was both

Rudolph Bisnauth (“petitioner”), legally insufficient and against the weight of

proceeding pro se, petitions this Court for a the evidence; and (4) the State suppressed

writ of habeas corpus pursuant to 28 U.S.C. evidence in violation of Brady v. Maryland,

§ 2254, challenging his conviction in New 373 U.S. 83 (1963). (ECF No. 1 at 5-10.)

York state court on four grounds. On January

21, 2011, following a jury trial, the jury For the reasons discussed below,

convicted petitioner of murder in the second petitioner 's request for a writ of habeas corpus

degree. See N.Y. Penal Law § 125.25(2). is denied in its entirety.

Petitioner was thereafter sentenced to a term of lL. BACKGROUND

imprisonment of twenty-five years to life.

i, . On January 21, 2011, a jury in the New

In his instant habeas petition, petitioner York State Supreme Court, Suffolk County

challenges his conviction as unconstitutional found petitioner guilty of second-degree

because: (1) the State of New York (the murder in violation of N.Y. Penal Law

State”) wrongfully impeached is own § 125.25(2). Following his sentencing,

witnesses in violation of N.Y. Crim. Proc. petitioner unsuccessfully moved the state

court to vacate the judgment of conviction and would beat her up if she canceled the

unsuccessfully pursued a direct appeal, as well insurance. (A. 38, 363-64)

as a motion under N.Y. Crim. Proc. Law . . . .

§ 440.10(1)(h), through the New York state sted ne pts imothy Rich Is bis

courts. His petition to this Court followed. and his sister “mushed” Ms. Byrd in the face.

A. The Trial and Sentencing (A. 39-41, 363-65.) The altercation did not

we ss escalate further because Timothy Rich grabbed

Over the COUTSS of P etitioner 8 trial, the his sister and because Ms. Byrd left her own

State presented evidence implicating petitioner house to travel to her sister’s house at 119

in the murder of Jerry Armstrong, including the Irving Avenue in Wyandanch, New York. (A.

testimony of over a dozen fact witnesses and 41-42, 364-65.) Timothy Rich and his sister

multiple exp erts. The evidence established left Ms. Byrd’s house around that same time as

that, on the morning of June 1, 2009, a verbal well. (A. 365-66.)

dispute arose between Timothy Rich and his

partner Keana Byrd, the daughter of the victim, At her sister’s house, Ms. Byrd told her

Jerry Armstrong. Following the verbal father, Jerry Armstrong, about the argument

altercation, the dispute escalated, with with Timothy Rich. (A. 43.) At her father’s

members of the Byrd/Armstrong family and request, Ms. Byrd called Timothy Rich and the

the Rich family proposing a fistfight. Rather parties agreed that her father would retrieve the

than a fistfight, however, the interfamily license plates for the car after the weekend and

argument ended that night in the shooting death that Timothy Rich could continue to see his

of Jerry Armstrong by Timothy Rich’s friends, daughter. (A. 45-46, 367-69.) According to

Michael McKenzie and petitioner.' Timothy Rich, that phone call resolved the

1. The Verbal Dispute dispute. (A, 368.)

On the morning of June 1, 2009, Keana 2. The Proposed Fistfight

Byrd spotted Timothy Rich, the father of her Shortly after the phone call, however,

daughter, driving his car with another woman several individuals who had learned about the

in the front passenger seat. (A. 33-36. After dispute, including Ms. Byrd’s brothers Jerry

following ‘Timothy Rich and noticing that this “Montreal” Byrd and Darryl Byrd, sought out

wotan was seven-months’ pregnant, Ms, Byrd and located Timothy Rich in front of his home

called Timothy Rich and threatened to cancel and attempted to fight with him. (A. 90-91,

the car’s insurance, which was registered and 145, 369-70.) Timothy Rich, however, fled in

insured by Ms. Byrd. (A. 36-37, 361-64.) his car to his sister’s house at 29 Parkway

According to Ms. Byrd, Timothy Rich then Boulevard in Wyandanch, while Montreal

threatened her, stating that he and his sister Byrd and others returned to 119 Irving Avenue

at around 9 p.m. (A. 90-91, 118, 146, 370-71.)

' McKenzie pleaded guilty to manslaughter in the People v. McKenzie, 98 A.D.3d 749, 749 (2d Dep’t

first degree prior to the commencement of 2012), appeal denied, 20 N.Y.3d 987 (2012).

petitioner’s trial, see N.Y. Penal Law § 125.20, and 5

was sentenced to twenty-five years’ imprisonment be aie ee “A. Ipawe ooeber on appeal □□

followed by five years of supervised release. See available on the docket for this case. (See ECF

Nos. 11, 11-1, 11-2.)

At 29 Parkway Boulevard, Timothy Rich Both Anthony Rich and Pottur testified that

explained to his friends about the altercations there were two sets of gunshots. (A. 267, 308-

with the Byrd/Armstrong family earlier that 09.) An offduty police officer who lived

day. (A. 238-40, 300-01, 371-72.) Among nearby also testified that she heard two sets of

those present were petitioner, his cousin Shawn gunshots. (A. 169-70.) Specifically, the

Bisnauth, McKenzie, Dajaun Pottur, and officer heard three shots and a pause, followed

Anthony Rich. (A, 237-38, 298-300, 370-72.) by seven or eight additional shots. (A. 169-70.)

_ Timothy Rich thereafter called Ms. Byrd and Several Byrd/Armstrong family members and

said he would fight her brother, Montreal. (A. friends also reported two sets of gunshots.

48-49.) However, after driving to 119 Irving (A. 55, 59, 97-99, 119-22.)

Avenue and realizing that his daughter was .

present, Timothy Rich returned to 29 Parkway According to Anthony Rich. there were

Boulevard and phoned Ms. Byrd, calling off two sets of gunshots because © eu

the fight. (A. 93-94, 376-77.) Montreal Byrd jammed—and McKenzie in fact said, “[S]h"t

° the gun jammed.” (A. 309.) Anthony Rich

joined the call and accused Timothy Rich of . ys

being afraid to fight. (A. 93-94, 377.) Both further testified that he witnessed petitioner

men then challenged each other to fight at the and McKenzie tussle with the gun pulling

other’s location. (A. 377.) the gun back and forth’—until the gun

cae unjammed. (A. 309-10.) Pottur similarly

3. The Shooting and Aftermath testified that, after the first round of gunfire, he

. heard petitioner and McKenzie arguing and

After Montreal Byrd left the call, Timothy “assumed” that the gun had jammed. (A. 245,

Rich warned Ms. Byrd that his friends were 267, 281-85.)

“going to come shoot the house up” and to get °

the kids out of the house. (A. 378; see also Although Anthony Rich saw McKenzie

A. 53-54.) Petitioner, his cousin Shawn take the gun after it was unjammed, he was

Bisnauth, McKenzie, Pottur, and Anthony unclear as to who fired the second set of

Rich then drove to 119 Irving Avenue at gunshots. (A. 266, 309-12.) When petitioner

around 11:30 p.m. to “shoot... up” the house. and McKenzie returned to the car, however,

(A. 169, 241-42, 301-02, 378-79.) Once at 119 McKenzie carried the gun and announced that

Irving Avenue, petitioner, McKenzie, and he had “had” the victim. (A. 245, 275.)

i i hi d hed

fathony ich exited Nek onvie carrying ° a After the shooting, the men returned to an

handgun (A 242-45, 303-05.) Shawn abandoned house at 18 Parkway Boulevard and

Bisnauth and Pottur remained in the car. (A. recounted the event, (A, 297-58, 277-78.)

264.) According to Anthony Rich, as they According to Timothy Rich, Mckenzie said

walked into the front yard, McKenzie yelled that he shot the gun, and petitioner said that he

« 1g)? unjammed the gun, that a shot fired in the

what’s popping?” and started shooting at a d that he fired off another shot

small crowd of people standing in front of the PROCESS, al a ree © ane <P sno

house. (A. 305, 308.) before McKenzie “snatched the gun” back. (A.

eee 382-83.)

One of the bullets hit and ultimately killed . .

Jerry Armstrong—Ms. Byrd’s father. (A. 59- The follow day, according to Timothy

61, 97-99, 121-22, 150.) Rich’s girlfriend (Kimberly Daniels),

, roa petitioner again stated that he took the gun

from McKenzie and unjammed it before

McKenzie fired again. (A. 348.) In addition, and called Officer Ronald Breuer to testify that,

Wilfred Stevens, who had a relationship with while riding in the ambulance with Jerry

petitioner’s mother, testified that petitioner Armstrong, he asked Armstrong who shot him

said that he was “involved in a shooting” where and Armstrong answered that it was □□□□□

he “sprayed up [a] house” and asked Stevens, daughter’s boyfriend.” (A. 677, 679-81, 687.)

“(H]ow long does it take for gun powder to . .

come off your hand?’ (A. 430-31.) Stevens 6. The Verdict and Sentencing

also testified that petitioner said he cleaned and After about four hours of deliberations, the

disposed of the gun. (A. 431.) jury return a verdict of guilty, convicting

. was petitioner of depraved indifference murder in

4. The Police Investigation violation of N.Y. Penal Law § 125.25(2).

Following the shooting, police recovered (A. 868.) Petitioner was thereafter sentenced

ten shell casings and one unfired cartridge from to a term of imprisonment of twenty-five years

near the property at 119 Irving Avenue. to life and judgment was entered on March 15,

(A. 479-83, 597-98.) A bullet was also 2011. (ECF No. 10 at 1.)

recovered from Jerry Armstrong's body, Following sentencing, petitioner filed a

(A. 231, 577.)

notice of appeal from his judgment of

According to the State’s forensics expert, conviction on March 18, 2011. Ud. at 9.)

all of the bullets and casings were ejected from . oo.

the same gun which, based on a distinctive B. Relevant _ Motions and Objections

firing pin mark, made it likely that the gun was During Trial

a nine-millimeter, semi-automatic — pistol 1. Motions and Objections regarding

known as a Glock. (A. 598-602, 605.) He Admissibility of Prior Statements

further testified that an unfired cartridge, like ,

the one recovered on the property, could be This petition argues that certain testimony

ejected from the gun in order to clear a jam. by Dejaun Pottur and Anthony Rich involved

(A. 625.) the improper admission of prior statements

under N.Y. Crim. Proc. Law § 60.35. The

During their testimony, Anthony Rich and portions of the record relating to that issue are

Pottur explained that McKenzie had summarized below.

permanently “disabled” his right hand in a

childhood car accident. (A. 242-43,314. A. a, Dejaun Pottur

police detective corroborated this evidence, As noted supra, the evidence at trial

similarly testifying that, following McKenzie’s established that, following the shooting,

arrest, McKenzie’s right hand could not be petitioner and the other men returned to an

scanned for fingerprints because it could not lie abandoned house at 18 Parkway Boulevard.

flat. (A. 551-54.) According to the State’s During his direct testimony, the State asked

forensics expert, it would be “virtually Dejaun Pottur, “What was said by [petitioner]

impossible” to clear a jam with one hand. Rudy Bisnauth in front of that house?” (A.

(A. 625-26.) 259.) In response, Pottur stated, “Nothing.”

5 The Defense Case (A. 259.) The State thereafter attempted to

refresh Pottur’s recollection, asking if he

In response to the State’s case, petitioner remembered previously giving a statement to

introduced a crime scene video into evidence the police, and then seeking to show him his

July 9, 2009 statement to the police, (A. 259- although he did not see who fired the second

62.) Defense counsel requested a sidebar, round. (A. 283-84.) During re-cross-

where he objected and argued that this was a examination, defense counsel asked whether

prior inconsistent statement meant to impeach Pottur knew whether the gun jammed, to which

the witness and, contrary to the State’s he replied again that he “assumed” it jammed.

argument, was not an attempt to refresh his (A. 284-85.) The defense then moved for a

recollection because Pottur “didn’t say he mistrial because the State went beyond the

needed his memory refreshed.” (A. 259-63.) scope of cross-examination and because they

The court rejected this objection because impeached their own witness with his July 9

defense counsel “just started objecting” before statement. (A. 286-87.) The court denied the

the State “asked any foundational questions” motion. (A. 287.)

(A. 260-61), and therefore did not require an . .

offer of proof by the State (A. 263). The State, On the following day of i ial, defense

however, did not pursue the line of questioning cata the june an juny □□□

further during its direct examination. only consider the July 9, 2009 statement to

On cross-examination, in an attempt to assess the credibility of the witness, but not for

impeach Pottur, defense counsel elicited the the truth of the matter asserted—because the

fact that Pottur previously told the police on the State allegedly impeached Pottur, (A. 291.)

day after the shooting (June 2) that McKenzie The court denied the request, but offered to

fired nine to ten shots. (A. 278-79.) On re- consider any proposed instruction during the

direct, Pottur testified that, during the shooting, final charge to the jury at the end of case.

he “heard a fuss” and “assumfed]” the gun (A. 292.)

jammed. (A. 281.) The State then attempted .

to refresh Pottur’s recollection by again asking b. Anthony Rich

about his July 9 statement to police. (A. 281.) During direct examination, the State

Although the State started to read part of his elicited significant testimony regarding the

statement—“And telling the police that the gun shooting—including that petitioner and

jammed that that’s what Rudy . . .”——Pottur McKenzie together tussled with the gun until it

interjected that he gave that July 9 statement unjammed (A. 310}—but it did not seek

because “the word already went around that the testimony regarding Anthony Rich’s previous

gun jammed.” (A, 281.) The State then asked statements to police. On _ brief cross-

Pottur to review “the statement and see if that examination, defense counsel asked whether

refreshes your recollection.” (A. 281-82.) Anthony Rich, in his sworn statement to police

Defense counsel objected, arguing that the on July 7, 2009, had stated that he saw

question went beyond cross-examination into a McKenzie with the gun on his lap as the group

“whole new area.” (A, 282.) drove to the abandoned house after the

The court overruled the objection and shooting. (A. 327.) Anthony Rich stated that

Pottur reviewed his previous statement. he could not recall. (A. 327.)

(A. 282-83.) Pottur then testified that On re-direct, the State asked whether

following the first round of shots by Anthony Rich told police in his July 7

McKenzie, “the gun jammed,” he heard an statement that petitioner “had grabbed the gun

argument between McKenzie and petitioner, and un-jammed it.” (A. 328.) Defense counsel

and he heard a second round of gunshots, twice objected to introduction of that

statement, but the court overruled the any event, Section 60.35 requires the court to

objections, agreeing with the State that the issue a limiting instruction regarding Anthony

defense had opened the door to the statement. Rich’s testimony. (A. 339.) Defense counsel

(A. 328-30.) Anthony Rich testified that he also reiterated that such instruction should

signed his July 7 statement and that it in fact have been issued regarding Pottur’s testimony.

said that petitioner “grabbed the gun and un- (A. 339.)

jammed it,” but also that he “never said that” Th ia indicated that j

to police even though he signed the statement. Ane court agai Indicated that It would

(A. 330.) He then testified again that he saw consider defense’ request for an instruction

petitioner and McKenzie “both had their hands with respect to Pottu r in its final charge.

on the gun,” while they were tussling to unjam (A. 339.) After the Jury retuned, the court

it. (A. 330.) The State then asked Anthony read them a limiting instruction, explaining

Rich whether he was familiar with what to do that the State’s questions regarding Rich's July

when a gun jams, to which he replied, “I watch 7 statement were permitted tor the Sole

[television].” (A. 331-32.) Defense counsel Purpose © f assessing the credibility of Rich's

objected and the court sustained the objection, trial testimony, and not, repeat, not legal

which concluded the re-direct. (A. 332.) The evidence mnt his case. (A. 340-41.) The State

jury was then excused for lunch. (A. 332.) then called it next witness. (A. 341.)

After the jury was excused, defense ‘es

counsel explained to the court that the State had At the charge conference following the

wrongfully impeached Anthony Rich in close of evidence, defense counsel renewed his

violation of N.Y. Crim. Proc. Law § 60.35. request for a general instruction regarding prior

(A. 333.) Specifically, defense counsel argued inconsistent statements and requested that the

that he had the right to impeach Anthony Rich court not single out Anthony Rich and Pottur

with a prior inconsistent statement in the July by name. (A. 694-95.) The court stated that it

7 document without opening the door to all would take the request into consideration.

statements in that document and that he did not (A. 697.)

even impeach the witness. (A. 333-34.) .

Defense counsel requested that the court During summations the following day, the

provide a contemporaneous __ limiting State mentioned Anthony Rich’s testimony

instruction to the jury regarding Anthony regarding the gun “jamming” or “un-

Rich’s testimony, and renewed his request for jamming,” and argued that “based upon not

a similar instruction as to Pottur. (A. 334.) only the testimony, but the physical evidence,

The State responded that the court need only thfe} gun jammed” and that “it was Rudy

give that particular charge during jury Bisnauth that cleared the gun, and may have

instructions at the end of the trial. (A. 335.) fired it or may have given it back to

[McKenzie] to fire.” (A. 759, 768) The State

Following the lunch recess, before the jury referred to the gun jamming throughout

was called in, defense counsel argued that summation.

Anthony Rich’s July 7 statement should not

have been permitted at all because it was not a Following summations, the court charged

prior inconsistent statement—that is, it did not the jury regarding, among other things,

tend to disprove his direct testimony. (A. 338- evaluating witness credibility. The court stated

39.) Defense counsel further argued that, in that it should ask, “Was the testimony of the

witness consistent or inconsistent with other

testimony or evidence in the case?” (A. 801.) 2. Motion for Judgment of Acquittal

It further stated that: due to Insufficient Evidence

You may also consider whether a After the State rested its case-in-chief, the

witness made previous statements that defense moved for dismissal of the indictment

are inconsistent with his or her because the State allegedly failed to establish

testimony at trial. the elements of depraved indifference murder.

. (A. 645.) Specifically, defense counsel argued

If a witness has made 8 uch that the law required petitioner to have the

inconsistent statements or OMISSIONS, same mens rea as McKenzie (who pleaded

youmay consider whether and to what guilty to intentional manslaughter) and argued

extent they affect the truthfulne SS OF that that was not possible in the instant case

ACCURACY of that witness's testimony because the State was only seeking conviction

here at trial. on the depraved indifference murder charge

The contents of a prior inconsistent against petitioner. (A. 646.) The court

statement are not proof of what summarily denied the motion. (A. 647.)

happ ened, You may use evidence of 3. Motion For Missing Witness

a prior inconsistent statement only to Instruction

evaluate the truthfulness or accuracy

of the witness’s testimony here at trial. During the trial, defense counsel also

for a missing wi char:

You will sl dving hs win, you age OF laine ness hae

heard _ testimony regarding pron argued that McKenzie was under the State’s

statements of two witnesses, D qaun control because they had a plea agreement

en at th Anthony on sespoct to with him, but the State failed to call him as a

Anthony Rich as I have instructed you witness. (A. 647-48.)

at the time with respect to Anthony The State responded that McKenzie, as a

Rich, I now instruct you as to both convicted defendant, was not under its control

witnesses, evidence regarding any and had the same constitutional right not to

prior statement of these witnesses was incriminate himself as petitioner, and thus the

admitted not for the truth of what was motion was without legal basis. (A. 649-50.)

contained in the prior statement, but Defense counsel further argued, however, that

for the sole purpose of assisting you in McKenzie could not incriminate himself

evaluating the credibility of those because he had already accepted a guilty plea.

witnesses here at trial. If you are (A. 650.)

ae i face ede by this en The court then stated that, if either party

that such prior statements were, in sought a specific jury charge on this □□□□

fact, inconsistent with their testimony such a request needed to be put writing

here in Court, you may consider such before the case was submitted to the jury. (A.

inconsistency as it may reflect upon 650.)

the witness’s testimony here in Court. After the defense rested, defense counsel

(A. 803-05.) renewed his motion for judgment of acquittal

and his motion for a missing witness

instruction, which the court denied. (A. 689.) The State filed its opposition on February 14,

At the charge conference, however, defense 2014. (A. 1033.)

counsel requested that the court include .

McKenzie’s name in its charge with respect to Following a two-day hearing and

accessory liability (A. 692-93), which the additional briefing by the parties, the court

court granted (A. 699). Defense counsel also denied petitioner's motion on April 23, 2015.

objected to the proposed instruction, which (A. 1169.) The court determined that the fact

stated that the jury is not permitted to consider that Timothy Rich worked as a confidential

the status of McKenzie in its deliberations. informant should have been turned over to

(A. 692-93.) The court overruled that defense counsel because Timothy Rich was an

objection. (A. 700.) active cooperator at the time the police

detectives interviewed him and his status was

During closing, however, defense counsel known to the police detectives who questioned

made reference--over at least six sustained him. (A. 1167.) The court, however, held that

objections—to the absence of McKenzie from there was no “reasonable probability” that the

the State’s case-in-chief. (A. 704-05, 710-11, outcome of the case would have changed had

725, 734.) this information been disclosed to the defense.

. 1168-69.) The ceordin i

During the charge to the jury, the court oitioner 5 ) a cn 1169.) gly denied

instructed the jury that it must not speculate on

the present status of the person with whom 2. Direct Appeal

petitioner acted in concert, and that it must not . □

draw any inference from his absence or allow Petitioner sought a certificate granting

his absence to influence the verdict. (A. 829, leave to appeal the denial, which was granted

853-54.) by the New York State Supreme Court,

Appellate Division, Second Department, on

C. Post-Judgment Procedural History August 3, 2015. (A. 1170.) On October 27,

2015, the Second Department also granted

1. Motion to Vacate Judgment of petitioner’s motion to consolidate his appeal

Conviction Based on Alleged Brady from the March 15, 2011 judgment of

Violation conviction with his appeal from the April 23,

On October 17, 2013, prior to perfecting 2015 order denying his motion to vacate the

□□ . judgment. (A. 1171.)

his direct appeal, petitioner filed a motion to

vacate his judgment of conviction under N.Y. In his consolidated brief, petitioner argued

Crim. Proc. Law § 440.10(1)(h), arguing that that: (1) the State impeached its own witness in

the State violated his state and federal violation of N.Y. Crim, Proc. Law § 60.35 (and

constitutional rights when it failed to disclose relatedly argued that the trial court failed to

Brady material prior to trial. (A. 873.) give a contemporaneous limiting instruction,

Specifically, petitioner argued that the State the State improperly referred to these prior

committed a Brady violation by not disclosing statements during summation, and petitioner

the existence of a cooperation agreement received ineffective assistance of trial counsel

between their office and Timothy Rich from when his counsel failed to object when the

April 2008, more than a year before the death State introduced the impeaching material at

of Jerry Armstrong in June 2009. (A. 878.) trial); (2) the trial court improperly denied his

request for a missing witness charge after

cooperating co-defendant, Michael McKenzie, York Court of Appeals denied petitioner leave

did not testify at trial; (3) the jury verdict was to appeal. Ud. at 146.)

against the weight of evidence because the . ws

State’s witness, Winfred Stevens, lacked The instant pro se petition followed on

vig. August 23, 2018 (ECF No. 1), and the State

credibility; and (4) the court improperly denied filed its tes 1 39. 2019 (ECF

his motion to vacate the judgment of ponse on January <, (

conviction based on the alleged Brady No. 10).

violation. (ECF No. 11-2 at 19-20.) 3. Motion To Stay Petition

On April 12, 2017, the Second Department On January 29, 2020, petitioner moved this

affirmed petitioner’s judgment of conviction. Court to stay his petition in order to allow him

(id. at 130-31.) The Second Department held the opportunity to exhaust additional claims in

that petitioner, “for the most part,” failed to New York state court. (ECF No. 17.)

preserve its contentions that the State Specifically, he stated that his post-conviction

improperly impeached two of its witnesses, counsel had filed a second N.Y. Crim. Proc.

that the trial court failed to give a Law § 440.10 motion to vacate his judgment of

contemporaneous limiting instruction, and that conviction based on three grounds: (1) alleged,

the State improperly referenced the prior newly discovered Brady information—that is,

statements during summation. (/d. at 131.) the lead detective was implicated in coercing

The court concluded, in any event, that any false confessions in two separate homicide

error was harmless due to the overwhelming cases—that was withheld from his 2014

evidence of petitioner’s guilt and the fact that hearing regarding his first Section 440.10

there was no significant probability that any motion; (2) alleged newly discovered evidence

error contributed to his conviction. (/d@.) It also that McKenzie was capable of unjamming a

concluded that petitioner was not deprived of gun unaided and that McKenzie was the only

effective assistance of counsel. (Jd) The person to fire or control the gun on the night of

Second Department further held that: (1) the the shooting; and (3) alleged ineffective

trial court properly denied petitioner’s request assistance of trial counsel due to trial counsel’s

for a missing witness charge; (2) the verdict failure to interview McKenzie. (/d. at 1-2.)

was not against the weight of evidence; and

court properly denied petitioner’s (On September 14, 2020, this Court directed

motion to: vacate the judgment of conviction petitioner to file a letter by October 12, 2020,

because there was no reasonable probability providing an update on petitioner's efforts to

that such nondisclosure affected the outcome exhaust these additional claims. (ECF No. 20.)

of the trial. (Id) Petitioner failed to respond to that order. On

June 30, 2021, the Court denied petitioner’s

On May 14, 2017, and through subsequent motion for a stay and directed petitioner to file

briefing, petitioner sought leave to appeal to his reply with respect to the pending habeas

the New York Court of Appeals, repeating his petition on or before August 6, 2021, (ECF No.

various arguments regarding the State’s 21.) The order was returned as undeliverable

wrongful impeachment of its witnesses, the and indicated on the envelope that petitioner

missing witness charge, the weight of had been paroled. (ECF No. 22 at 1.} No reply

evidence, and the alleged Brady violation. (/d. was received by the due date.

at 132-45.) On September 13, 2017, the New

II. STANDARD OF REVIEW indistinguishable facts.” Williams, 529 US. at

To determine whether a petitioner is 412-13. A decision is an “unreasonable

. : application” of clearly established federal law

cee wply OF abeas corpus, 2 Federal ifa state court “identifies the correct governing

legal principle from [the Supreme Court’s

forth m a8 U.S.C. § 2254, as amended by the decisions but unreasonably. applies tha

Antiterrorism and Effective Death Penalty Act principle to the facts of [a] prisoner’s case.” Id

(“AEDPA”), which provides, in relevant part: at 413. □□

(d) An application for a writ of habeas The AEDPA establishes a deferential

COPHS OF behal f of a person in custody standard of review: “[A] federal habeas court

pursuant to the judgment ofa State court may not issue the writ simply because that

shall not be granted with respect to any court concludes in its independent judgment

claim that was adjudicate don the merits that the relevant state-court decision applied

in State court proceed ings unless the clearly established federal law erroneously or

adjudication of the claimy— incorrectly. Rather, that application must also

(1) resulted in a decision that was be unreasonable.” Gilchrist v. O’Keefe, 260

contrary to, or involved an unreasonable F.3d 87, 93 (2d Cir, 2001) (quoting Williams,

application of, clearly established 529 U.S. at 41 1). The Second Circuit has

Federal law, as determined by the added that, while “[s]ome increment of

Supreme Court of the United States; or incorrectness beyond error is required ... the

. increment need not be great; otherwise, habeas

(2) resulted in a decision that was based relief would be limited to state court decisions

on an unreasonable determination of the so far off the mark as to suggest judicial

facts in light of the evidence presented incompetence.” /d. (alterations in original)

in the State court proceeding. (quoting Francis S. v. Stone, 221 F.3d 100, 111

28 U.S.C. § 2554(d). “Clearly established (2d Cir. 2000). Finally, “if the federal claim

Federal law’ means ‘the holdings, as opposed was not adjudicated on the merits, “AEDPA

to the dicta, of [the Supreme] Court’s decisions deference is not required, and conclusions of

as of the time of the relevant state-court law and mixed findings of fact and conclusions

decision.” Green v. Travis, 414 F.3d 288, 296 of Jaw are reviewed de novo.” Dolphy v.

(2d Cir. 2005) (alteration in original) (quoting Mantello, 552 F.3d 236, 238 (2d Cir. 2009)

Williams v. Taylor, 529 U.S. 362, 412 (2000)). (quoting Spears v. Greiner, 459 F.3d 200, 203

(2d Cir. 2006)).

A decision is “contrary to” clearly

established federal law, as determined by the Il]. DisCcUSSION

Supreme Court, “if the state court arrives at a A. Procedural Bar

conclusion opposite to that reached by [the

Supreme Court] on a question of law or if the 1. Legal Standard

state court decides a case differently than [the A petitioner’s federal claims may be

Supreme Court] has on a set of materially procedurally barred from habeas review if they

3 Although petitioner appears to have been paroled, e.g., Jones vy. Cunningham, 371 U.S. 236, 243

(ECF No. 22 at 1), it is clear that a habeas petition (1963) (holding that release on parole does not

does not become moot when parole is granted, see,

10

were decided at the state level on “independent procedural bar rule as a separate basis for

and adequate” state procedural grounds. decision”); see, e.g., Glenn v. Bartlett, 98 F.3d

Coleman v. Thompson, 501 U.S. 722, 729-33 721, 725 (2d Cir. 1996).

(1991); see, e.g., Michigan v. Long, 463 U.S. .

1032, 1041 (1983). A procedural rule is A federal habeas court may not review a

adequate if it is “‘firmly established and procedurally barred claim on the merits unless

regularly followed’ by the state in question.” the petitioner can demonstrate “cause for the

Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) default and actual prejudice as a result of the

(quoting Ford v Georgia 498 US. 411. 423- alleged violation of federal law, or demonstrate

24 (1991). To be independent the “state court that failure to consider the claim[] will result in

must actually have relied on the procedural bar fundamental Sat 750, of J ustice,”

as an independent basis for its disposition of is eman, ™ he etitioner □□

the case” by “‘clearly and expressly’ stat[ing] folle onstrate “the y “lor len ots °

that its judgment rests on a state procedural onowl ne: ( yt ¢ factual or legal basis tor a

bar.” Harris y. Reed, 489 U.S. 255, 261-63 petitioner’s claim was hot reasonably available

(1989) (quoting Caldwell v. Mississippi, 472 to counsel, (2) som interf erence by state

U.S. 320, 327-28 (1985). “[A] state court that officials made compliance with the procedural

wishes to rely on a procedural bar rule in a one- rule impracticable, or (3) the P rocedural default

line pro forma order easily can write that ‘relief was me. ou or ine tecie N. istance

is denied for reasons of procedural default,”” 3778 BM C © 501 0 Wi 15317

id. at 265 n.12. For example, an “appellate EDNY D 9. 2010) (citi B at

coutt’s statement that petitioner’s claim was Th ‘ 41 £3 d 825 oo os

‘unpreserved’ is sufficient to establish that it NEE, Ne , ( )).

was relying on a procedural bar as an Actual prejudice can be demonstrated by

independent ground in disposing of the issue.” showing that the ettor worked fo his actual

Allan v. Conway, No. 08-CV-4894. (JFB) and substantial disadvantage, infecting his

9012 WL 70839. at *9 (E.D.N.Y. Jan 10. entire trial with error of constitutional

2012); see also Figueroa Grenier No 02 dimensions.” Torres v. Senkowski, 316 F.3d

Civ. 5444 DAB GWG, 2005 WL 249001, at *8 147, 152 (2d Cir. 2003) (quoting Rodriguez v.

(S.DN.Y. Feb. 3, 2005) (citing Harris, 489 Mitchell, 252 F.3d 191, 203 (2d Cir. 2001)). A

US. at 265 n 12), In addition, a state court’s miscarriage of justice is demonstrated in

reliance on an independent and adequate extraordinary Cases, such as where a

procedural bar precludes habeas review even if . constitutional violation has probably resulted

the state court also rejected the claim on the mt the lnen of ne whe 3s actually

merits in the alternative. See, e.g., Harris, 489 innocent. uray V. CAPPER, “ >

U.S, at 264 n.10 (explaining that “a state court 496 (1986). To overcome @ Pr ocedural default

need not fear reaching the merits of a federal based on a miscarriage of justice, the petitioner

claim in an alternative holding,” so long as the must demonstrate that more likely than not, In

state court “explicitly invokes a_ state light of the new evidence, no reasonable juror

render a habeas petition moot because “[w]hile Rochester Psychiatric Ctr., 955 F.3d 314, 319 (2d

petitioner’s parole releases him from immediate Cir. 2020), Ortiz v. Martisucello, 16-CV-7927

physical imprisonment, it imposes conditions (LAP) (OTW), 2018 WL 10468148, at *1 n.1

which significantly confine and restrain his (S.D.N.Y. Aug. 23, 2018) (collecting cases).

freedom”); accord Janakievski v. Exec. Dir.,

1]

would find him guilty beyond a reasonable regarding the State’s introduction of prior

doubt.” House v. Bell, 547 U.S. 518, 538 statements to impeach two prosecution

(2006), witness; (2) the failure of the trial court to give

In addition, “[a]n application for a writ of oe pvcachmen a ee atthe

habeas tte on on mene State in eusiny introduced; and (3) the State’s reference to the

hot be granted unless it appears that ... the ‘Por Statements during summation, (Id.

applicant has exhausted the remedies available a. Alleged Impeachment of Witnesses

in the courts of the State.” 28 USC. □

§ 2254(b\(1)(A); see also Fama v. Comm’r of New York’s preservation tule, N.Y. Crim.

Corr, Servs., 235 F.3d 804, 808 (2d Cir, 2000) Proc. Law § 470.05(2), “require[sj, at the very

(“Prior to bringing a petition for habeas corpus least, that any matter which a party wishes the

pursuant to 28 U.S.C. § 2254, petitioner must appellate court to decide have been brought to

exhaust the remedies available in state court or the attention of the trial court at a time and ma

demonstrate that ‘there is an absence of way that gave the latter the opportunity to

available State corrective process [or] [that] remedy the problem and thereby avert

circumstances exist that render such process reversible error.” Garcia, 188 F.3d at 78

ineffective to protect the rights of the (quoting People v. Lup eron, 85 N.Y.2d 71, 78

applicant.’” (alterations in original) (quoting (1995), accord Richardson v. Greene, 497

28 U.S.C. § 2254(b)(1)(B))). To fulfill the F.3d 212, 218 (2d Cir, 2007). The rule requires

exhaustion requirement, a petitioner must a contemporaneous objection to any al leged

“fairly present” the federal claim “in each legal error by defense counsel at a criminal

appropriate state court (including a state trial. See N.Y. Crim. Proc, Law § 470.05(2);

supreme court with powers of discretionary see als 0 Cotto v. Herbert, 331 F.3d 217, 239

review).” Baldwin v, Reese, 541 U.S. 27, 29 (2d Cir. 2003). The rule is also a state law

(2004). “A prisoner has not fairly presented a ground that s independent of any federal

federal claim before a state court if the federal constitutional question that is “firmly

claim is not mentioned in the prisoner’s state established and regularly followed by the

court brief.” Richardson v. Superintendent of state.” Richardson v. Greene, 497 F.3d at 217-

Mid-Orange Corr. Facility, 621 F.3d 196, 201 19.

(2d Cir. 2010). However, “[a]n application for This Court agrees with the Second

a writ of habeas corpus may be denied on the Department that petitioner failed to preserve

merits, notwithstanding the failure of the the issue concerning the alleged impeachment

applicant to exhaust the remedies available in of State witnesses for his direct appeal and,

the courts of the State.” 28 U.S.C. accordingly, for his instant habeas petition.

§ 2254(b)(2). Although it is true that petitioner objected to

sags the State’s attempted impeachment of Pottur

2, Application during direct examination with Pottur’s July 9

As noted above, the Second Department statement and the trial court rejected that

concluded that three of petitioner’s arguments objection because defense counsel “just started

were “for the most part, unpreserved for objecting” before the State “asked any

appellate review.” (ECF No. 11-2 at 131 foundational questions” (A. 260-61), the State

(citing N.Y. Crim. Proc. Law § 470.05(2)).) did not pursue the line of questioning further

These arguments included: (1) the alleged error during direct examination and, thus, no

12

objection was made at that juncture. (See prisoner has not fairly presented a federal claim

A. 259-69.) On re-direct, petitioner again before a state court if the federal claim is not

objected when the State attempted to use mentioned in the prisoner’s state court brief.”

Potiur’s July 9 statement to refresh his Richardson v. Superintendent of Mid-Orange

recollection, arguing that the use of the July 9 Corr. Facility, 621 F.3d at 201. A habeas court

statement was outside the scope of cross- may excuse a petitioner’s failure to exhaust if

examination into “a whole new area,” but petitioner demonstrates “cause and prejudice

failed to argue that such use constituted an excusing his failure to exhaust or actual

improper impeachment of the State’s own innocence.” Dixon v. McGinnis, No. 06 CIV.

witness in violation of N.Y. Crim. Proc. Law 39 (RJS), 2012 WL 6621728, at *4 (S.D.NLY.

§ 60.35. (See A. 282.) Under New York law, Dec. 19, 2012); see also Murden v. Artuz, 497

however, “to preserve a particular issue for F.3d 178, 194 (2d Cir. 2007) (citing Dretke v.

appeal, defendant must specifically focus on Haley, 541 U.S. 386, 393 (2004)).

the alleged error.” Garvey v. Duncan, 485 F.3d weg

709, 714-15 (2d Cir. 2007) (collecting New The Court finds that petitioner's claim is

York cases). Here, because petitioner failed to nexhausted: aoe 8 ae reoore i ne raised

contemporaneously object to the State’s use of 1s Tegal’ Insuticiency of tne evidence clam in

the July 9 statement to impeach Pottur, his post-judgment Section 440.10 motion or in

petitioner’s claims based on the alleged his consolidated direct appeal. Moreover,

violation of N.Y. Crim. Proc. Law § 60.35— petitioner has not attempted to show cause and

including the State’s elicitation of such prejudice excusing his failure to exhaust or

impeachment testimony and the trial court’s a Accoadinel vee mur den. 497 i □

failure to issue a contemporaneous limiting ecor ingly, the claim Is unextaustec.

instruction during Pottur’s testimony—are However, “[a]n application for a writ of habeas

procedurally barred from habeas review.’ votwith ona re denied Pith the lot □□

Moreover, petitioner has failed to demonstrate notwitastancing te Taine or tie appican □□

vas exhaust the remedies availabie in the courts of

cause or prejudice or actual innocence to

the State,” 28 U.S.C. § 2254(b)(2); see also

overcome this procedural bar. .

Jones v. Keane, 329 F.3d 290, 294 n.6 (2d Cir.

b. Sufficiency of the Evidence at Trial 2003), which the Court addresses below.

Petitioner alleges in his habeas petition that B. Merits

there was insufficient evidence to support the .

state court verdict beyond a reasonable doubt. Out of an abundance of caution, the Court

(ECF. No. 1 at 8.) As noted above, to fulfill the has analyzed all of petitioner’s claims in this

exhaustion requirement, a petitioner must case, and concludes that all such claims

“fairly present” the federal claim “in cach (including the procedurally-barred and

appropriate state court (including a. state unexhausted claims in the current petition) fail

on the merits. Given that petitioner’s claims

supreme court with powers of discretionary as .

review)” Baldwin, 541 US. at 29. “A present no constitutional basis for habeas

* Petitioner’s motion for a mistrial following motion for a curative instruction regarding the

Pottur’s testimony on the grounds that the Stafe’s State’s impeachment of Pottur, likewise failed to

redirect went outside the scope of cross- failed to satisfy New York contemporaneous

examination and that the State impeached its objection rule. See N.Y. Crim. Proc. Law

witness, and, the following day, petitioner’s § 470.05(2).

13

relief, for the reasons discussed below, the N.Y. Crim. Proc. Law § 60.35(1)-(2).

Court denies the habeas petition in its entirety The propriety of a trial court’s decision to

on the merits. admit impeachment testimony under Section

1. State’s Alleged Improper Use of 60.35 is not cognizable on habeas review. See

Impeachment Evidence Gueits v. Kirkpatrick, 612 F.3d 118, 124 (2d

: . . Cir. 2010); see also Estelle vy. McGuire, 502

Petitioner asserts that he is entitled to U.S. 62, 67-68 (1991) (“[I]t is not the province

habeas relief because the State improperly of a federal habeas court to reexamine state-

impeached two of its witnesses during trial in court determinations on state-law questions.”);

violation of N.Y. Crim, Proc. Law § 60.35 and, Hawkins v. Costello. 460 F.3d 238, 244 (2d

relatedly, that the trial court erred by failing to Cir, 2006); Harris ° vy Perez, 1 4-CV-7218

issue a curative instruction during and (SLT) 017 WL 5 468782 at #5 (E.DN.Y

following the testimony of Pottur. (ECF No. 1 Nov. 13 2017) (“Since § 60.35’s provisions

at 5.) In addition, petitioner alleges ineffective are not man dated by federal law or the United

assistance of counsel due to his lawyer's failure States Constitution, a trial court’s error in

to object 0 the use of such impeachment applying these [sic] provision is solely an error

evidence during the State’s summation. (/d.) of state law.”); Dunston v. Griffin, 16-CV-821

The Court concludes that, in addition to being (BMC) 2016 WL 1255727. at #4 (EDNY

procedurally barred, petitioner’s claims on this Mar. 29, 2016) (holding clai m under Section

issue do not warrant habeas relief. 60.35 was not cognizable on habeas review

New York Criminal Procedure Law because “[t]he U.S. Constitution places no

§ 60.35 states: restrictions on a prosecutor’s ability to impeach

, his own witness”). Instead, a habeas petitioner

1. When, upon examination by the can prevail on an evidentiary error claim only

party who called him, 4 witness In a if “fhe] show[s] that the error deprived [him] of

criminal proceeding gives testimony a fundamentally fair trial.” Taylor v. Curry,

upon a material issue of the case 708 F.2d 886, 891 (2d Cir. 1983); see also

which. tends to disprove the position Zarvela y. Artuz, 364 F.3d 415, 418 (2d Cir.

of such party, such party _ may 2004) (“[E]rroneous evidentiary rulings

introduce evidence that such witness warrant a writ of habeas corpus only where the

has previously made either a written petitioner ‘can show that the error deprived

statement signed by him or an oral [him] of a fundamentally fair trial.’” (quoting

statement under oath contradictory to Rosario v. Kuhlman, 839 F.2d 918, 925 (2d

such testimony. Cir. 1988))). In other words, “[t]he

2, Evidence concerning a prior introduction of improper evidence against a

contradictory statement introduced defendant does not amount to a violation of due

pursuant to subdivision one may be process unless the evidence ‘is so extremely

received only for the purpose of unfair that its admission violates fundamental

impeaching the credibility of the conceptions of justice.’” Dunningan v. Keane,

witness with respect to his testimony 137 F.3d 117, 125 (2d Cir. 1998) (quoting

upon the subject, and does not Dowling v. United States, 493 U.S. 342, 352

constitute evidence in chief. Upon (1990), abr ogated on other grounds by Perry

receiving such evidence at a jury trial, v. New Hampshire, 565 U.S. 228 (2012).

the court must so instruct the jury.

14

Here, even assuming arguendo that the Amendment claim for ineffective assistance of

admission of the prior statements for counsel, “a petitioner must demonstrate both

impeachment purposes under Section 60.35 that counsel’s performance was deficient and

was erroneous,> it is clear that such an error did that prejudice resulted from the deficient

not rise to the level of a constitutional violation performance.” Gueits, 612 F.3d at 122 (citing

that could support habeas relief. First, Strickland v. Washington, 466 U.S. 668, 687

although the trial court did not provide a (1984)). To establish deficient performance,

limiting instruction during or directly after the petitioner must show that “counsel’s

Pottur’s testimony, it did provide a limiting representation fell below an objective standard

instruction following Anthony Rich’s of reasonableness.” Strickland, 466 U.S. at

testimony and, most importantly, again 688. The Second Circuit has recognized,

provided such instruction in its charge to the however, that “[u|nder Strickland, there is a

jury before deliberations. (See A. 340-41, 801, ‘strong presumption that counsel’s conduct

803-05.) Second, there was overwhelming falls within the wide range of reasonable

evidence of petitioner’s guilt established by professional assistance.’” Palacios v. Burge,

admissible testimony from multiple witnesses 589 F.3d 556, 561 (2d Cir. 2009) (quoting

and other evidence such that the passing Strickland, 466 U.S. at 689). To establish

references to the prior statements of these two prejudice, the petitioner “must show that there

witnesses could not possibly have deprived is a reasonable probability that, but for

petitioner of a fundamentally fair trial or counsel’s unprofessional errors, the result of

affected the outcome of the case. In sum, any the proceeding would have been different.”

alleged error in the admission of prior Strickland, 466 U.S. at 694.

statements under Section 60.35 does not wa

warrant habeas telicf. The performance of petitioner's counsel

was not deficient based upon his failure to

* * * object to the use of impeachment evidence

et oo: . . during summation. Evidence that the “gun

Petitione rs ineffective assistance of jammed” and that petitioner helped McKenzie

counsel claim based upon his lawyer s failure with unjamming the gun was properly admitted

to object to the use of such impeachment into evidence through the testimony of

testimony during summation likewise lacks Anthony Rich, who witnessed the events

merit. In order to demonstrate a Sixth firsthand. (See A. 309-10 (testifying that

5 Although the Court assumes error for purposes of Similarly, Anthony Rich testified that there was a

this habeas petition, the Court notes that it is far tussle with the gun where petitioner and McKenzie

from clear that the challenged questioning was a “pullfed} the gun back and forth” until it

violation of state law under Section 60.35, In other unjammed, which was inconsistent with his prior

words, it appears that the State was properly statement to police that petitioner “grabbed the gun

permitted to impeach both Pottur and Anthony and un-jammed it” (A. 328-30)}—suggesting that

Rich with their previously signed police statements petitioner cleared the jam on his own. Since the

because their trial testimony “tend[ed] to disprove testimony in question directly addressed the

the [State’s] position.” See People v. Berry, 27 State’s theory of the accessorial liability—a key

N.Y.3d 10, 17 (2016) (internal quotation marks issue at trial—any testimony negating petitioner’s

omitted), Pottur testified that he assumed the gun participation in the handling of the gun was

jammed, which was inconsistent with his prior adverse to the State’s case and could be impeached

statement to police that the gun in fact jammed. with prior statements.

15

McKenzie said “sh*t the gun jammed” and that 2. Missing Witness Charge

the wanback oath” ane □□ vn Petitioner next argues that habeas relief is

of it un-jamming”).) In addition, two appropriate because the trial court did not

additional witnesses—Timothy Rich and his instruct the jury that it could draw an adverse

girlfriend—each testified that, following the inference from the State 8 failure to call_co-

shooting, petitioner stated that he “un- defendant McKenzie as a witness a trial. (ECF

jammed” the gun for McKenzie. (See A. 348, No. | at 6.) The Court concludes, however,

382-83.) Moreover, a third witness, Wilfred that petitioner's claim does not faise a federal

Stevens, testified that, in the days following the constitutional issue that is cognizable on

shooting, petitioner stated that he was habeas review.

“involved in a shooting” and asked, “[Hjow “Whether a missing witness charge should

long does it take for gun powder to come off be given lies in the sound discretion of the trial

your hands?” (A. 430-31.) Therefore, any court.” Reid v. Senkowski, 961 F.2d 374, 377

reference to Pottur’s —_ impeachment (2d Cir. 1992) (quoting United States v. Torres,

testimony—i.e., that he previously told the 845 F.2d 1165, 1170-71 (2d Cir. 1988)); see

police that the “gun jammed” even though he also People v Macana, 84 N.Y.2d 173, 179-80

did not see the events (A. 283-84)—was (1994). The Second Circuit has explained that,

proper. “Iblecause we recognize that an aura of

And, importantly, the State did not use gamesmanship . frequently accompanies

Anthony Rich’s previous police statement requests for missing witness charges, we afford

that petitioner “grabbed the gun and un- [trial] judges considerable discretion in

jammed it” (A. 328)—during summation. deciding when they should and should not be

Instead, the State properly used Anthony given. United States Gaskin, 364 F3 d 438,

Rich’s statement that there was a tussle for the 463 (2d Cir. 2004) (citation and internal

gun until he “heard the snap of it un-jamming” quotation marks omitted). To obtain a missing

(A. 309, 758-59). It therefore was not a charge under New York law, th © Feu esting

deficient performance by petitioner’s counsel party must establish that: (1) the witness □

to fail to object to the use of such admissible knowledge [is] material to the trial”; (2) the

testimony during the State’s summation. witness [is] expected to give noncumulative

testimony favorable to the party against whom

In any event, as noted above, the Second the charge is sought”; and (3) “the witness [is]

Department correctly held that, to the extent available to that party.” People v. Savinen, 100

petitioner’s contentions have any merit, any N.Y.2d 192, 197 (2003). The burden is upon

error was harmless, as there was no significant the party seeking the charge to prove that the

probability that the error contributed to witness is not only knowledgeable about a

defendant’s conviction in light of the material issue, but also that the witness would

overwhelming evidence of his guilt. (ECF No. be expected to testify favorably for the party

11-2 at 131.) Accordingly, petitioner’s claim not calling the witness and that the witness’

regarding the impeachment evidence fails on testimony would be non-cumulative. See

the merits. People v Gonzalez, 68 N.Y.2d 424, 427 (1986).

In New York, the State’s “failure to call a

witness will allow the jury to infer that the

witness would contradict the testimony of the

16

[State’s] other witness(es) and corroborate the 42 F. App’x 488, 491-92 (2d Cir. 2002)

version of the defendant.” Savinon, 100 (finding testifying witness and missing witness

N.Y.2d at 197 n.2. (alterations and internal were together throughout duration of the crime,

quotation marks omitted). and missing witness therefore would have

Moreover. as it relates to habeas review added no new information). Petitioner presents

. ae . , no evidence that McKenzie would have

the failure to provide a MISSINE witness charge testified to a version of the shooting that was

in accordance with New York law is a matter materially different than the version provided

of state law for which habeas . relief is by the other witnesses. Thus, petitioner failed

unavailable. See, e.g., Kirkby v. Filion, 644 F. to demonstrate that the Second Department

Supp. 2d 299, 307 (W.D.N.¥.2009) (“Kirkby’s erred in concluding that the trial court did not

missing witness charge claim raises only an abuse its discretion in declining to give missing

issue of state law that cannot justify federal witness charge. See Gaskin, 364 F.3d at 463

habeas relief. Instead, on habeas TeVvIeW > the (quoting United States v. Torres, 845 F.2d at

Court may consider only whether the failure to 1170-71); see also Reid, 961 F.2d at 377.

provide a missing witness charge violated

petitioner’s federal constitutional rights. “Like More importantly, even if the failure to

the failure to give any other jury instruction, give a missing witness instruction violated

the failure to issue a missing witness New York law in this case, there is no basis to

instruction does not raise a constitutional issue conclude that such error was of a constitutional

and cannot serve as the basis for federal habeas magnitude warranting habeas relief. It is

relief unless the failure ‘so infected the entire entirely speculative to suggest that the failure

trial that the resulting conviction violated due by the court to give a missing witness charge

process.” Kloskin v. Conway, 501 F. Supp. 2d had any impact on the trial. Indeed, despite at

429, 444 (W.D.N.Y. 2007) (quoting Cupp v. least six sustained objections by the State

Naughten, 414 U.S. 141, 147 (1973)). Finally, during summation, defense counsel repeatedly

“Twlhere, as here, the alleged error is one of argued to the jury the absence of McKenzie

omission, it ‘is less likely to be prejudicial than from the State’s case-in-chief. (A. 704-05,

a misstatement of the law,’ thereby making the 710-11, 725, 734.) Moreover, as noted above,

petitioner’s ‘burden ... especially heavy.” there was overwhelming evidence of

Crews v. Herbert, 586 F. Supp. 2d 108, 114 petitioner’s guilt. In short, the Court cannot

(W.D.N.Y. 2008) (quoting Henderson v. conclude that the failure to give a missing

Kibbe, 431 U.S. 145, 155 (1977)). witness instruction violated petitioner’s federal

tongs oe constitutional rights by “so infect{ing] the

As an initial matter, It Is unclear whether entire trial as to deny [p]etitioner due process.”

the circumstances of petitioner § case even Hernandez v. Lee, No. 10-CV-4667 (JEB),

warranted a missing witness charge. 2014 WL 1407274, at *17 (E.D.N.Y. Apr. 11,

Specifically, based on this Court’s review of 2014); see, e.g., Davis v. Smith, No. 06-CV-

the record, there is no reason to believe that 1389 (IKS), 2009 WL 236506, at *7 (N.D.N.Y.

McKenzie would have given non-cumulative Feb. 2, 2009) (“Even if state law had called for

testimony favorable to petitioner. Anthony the missing witness charge, its absence

Rich and Pottur were present during the certainly did not so infect the entire trial as to

shooting that resulted in the death of Jerry deny Petitioner due process where, as here, the

Armstrong on June 1, 2009—as was prosecutor’s comments during his opening

McKenzie, the shooter. See Davis v. Mantello, statement were equivocal, defense counsel was

17

permitted to comment on the absence of any rational trier of fact could have found the

eye-witness testimony during summation, and essential elements of the crime beyond a

the jury was instructed to limit itself to the reasonable doubt.” Jackson v. Virginia, 443

evidence actually presented.”); Toland vy. U.S. 307, 319 (1979); see also Policano v.

Walsh, No. 04-CV0773 (GLS), 2008 WL Herbert, 507 F.3d 111, 115-16 (2d Cir. 2007)

65583, at *14-15 (N.D.N.Y. Jan. 4, 2008) (stating that “[i]n a challenge to a state criminal

(denying habeas relief where possibility that conviction brought under 28 U.S.C. § 2254...

missing witness would give favorable the applicant is entitled to habeas corpus relief

testimony was “based upon nothing other than if it is found that upon the record evidence

mere conjecture” and stating that “federal adduced at the trial no rational trier of fact

habeas relief cannot be granted upon claims could have found proof of guilt beyond a

that are rooted in speculation”); Brown v. reasonable doubt” (quoting Jackson, 443 U.S.

Spitzer, No. 05 Civ. 1553 (BMC), 2007 WL at 324)); Ponnapula y, Spitzer, 297 F.3d 172,

2406870, at *3 (E.D.N.Y. Aug. 21, 2007) 179 (2d Cir. 2002) (“[W]e review the evidence

(denying habeas relief in part because “failure in the light most favorable to the State and the

to give a missing witness charge will rarely applicant is entitled to habeas corpus relief

support reversal or habeas relief since only if no rational trier of fact could find proof

reviewing courts recognize the aura of of guilt beyond a reasonable doubt based on the

gamesmanship that frequently accompanies evidence adduced at trial.”), A criminal

requests for a missing witness charge as to conviction will stand so long as “a reasonable

which the trial judge will have a surer sense mind ‘might fairly conclude guilt beyond a

than any reviewing court” (citation and internal reasonable doubt.’” United States v. Strauss,

quotation marks omitted)). Accordingly, 999 F.2d 692, 696 (2d Cir. 1993) (quoting

petitioner’s claim as to the missing witness United States v. Mariani, 725 F.2d 862, 865

charge does not provide a basis for habeas (2d Cir. 1984)). Even when “faced with a

relief. record of historical facts that supports

. . . conflicting inferences[,] [a court] must

3. Sufficiency and Weight Of Evidence presume—even if it does not affirmatively

Petitioner also argues that his conviction appear in the record—that the trier of fact

was against the weight and sufficiency of the resolves any such conflicts in favor of the

evidence. (ECF No. 1 at 8.) The Court prosecution, and must defer to that resolution.”

disagrees. Wheel v. Robinson, 34 F.3d 60, 66 (2d Cir.

1994) (quoting Jackson, 443 U.S. at 326).

The law governing habeas relief from a When considering the sufficiency of the

state conviction based on insufficiency of the evidence of a state conviction, “[a] federal

evidence is well established. A petitioner court must look to state law to determine the

“bears a very heavy burden” when challenging elements of the crime.” Quartararo □□

the legal sufficiency of the evidence in an Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999).

application for a writ of habeas corpus.

Einaugler v, Sup. Ct. of the State of N.Y., 109 This Court concludes that there was more

F.3d 836, 840 (2d Cir. 1997) (quoting Quirama than sufficient evidence for the jury to convict

y, Michele, 983 F.2d 12, 14 (2d Cir. 1993)). A petitioner of murder in the second degree in

criminal conviction in state court will not be violation of New York Penal Law § 125.25(2).

reversed if, “after viewing the evidence in the

light most favorable to the prosecution, any

18

In New York, a person is guilty of murder recovered from the body of Jerry Armstrong,

in the second degree when the following were ejected from the same gun, and that an

elements are proven beyond a reasonable unfired cartridge, like the one recovered on the

doubt: “Under circumstances evincing a property, could be ejected from the gun in

depraved indifference to human life, he order to clear a jam. (A. 598-602, 605, 625-

recklessly engages in conduct which creates a 26.)

grave risk of death to another person, and

thereby causes the death of another person.” M oreover, Anthony Rich and Pottur each

N.Y. Penal Law § 125,25(2). testified that McKenzie had permanently

“disabled” his right hand in a childhood

This Court concludes that there was legally accident (A. 242-43, 314), which was

sufficient evidence—both testimonial and corroborated by the officer processing the

physical evidence—to sustain a conviction for arrest, who testified that McKenzie’s right

depraved indifference murder. With respect to hand could not be scanned for fingerprints

the trial testimony, multiple witnesses testified because it could not lie flat during booking.

that petitioner was present at the shooting and (A, 551-54.) The State’s forensic expert also

that petitioner assisted with unjammed the gun testified that it would be “virtually impossible”

midway through the shooting. In particular, to clear a jammed gun with one hand. (A. 625-

Anthony Rich testified that, in the midst of the 26.)

shooting, he heard McKenzie yell “sh*t the .

oun jammed” and then saw petitioner and in sum, there was more than sufficient

McKenzie “pulling the gun back and forth” evidence from which a rational jury could

until he heard another bullet “snap” into the convict petitioner of murder in the second

chamber as the gun “un-jamm[ed].” (A. 309- degree . beyond 4 reasonable doubt,

11, 330-31.) Pottur corroborated Anthony Accordingly, there is no basis for habeas relief

Rich’s testimony, by also placing petitioner at based upon the sufficiency of the evidence.

the scene of the crime and stating that, during kOe Ok

the shooting, he “heard a fuss” and “assum|ed] .

the gun jammed.” (A, 281.) Likewise, The Court also rejects petitioner's claim

Timothy Rich and his girlfriend each testified that the verdict was against the weight of the

that, following the shooting, petitioner evidence. (ECF No. | at 8.) A New York state

admitted to helping unjam the gun. (A. 348, appellate court may reverse or modify a

382-83.) Similarly, Wilfred Stevens testified conviction if the court determines that the

that petitioner admitted he was “involved in a jury’s verdict “was, in whole or in part, against

shooting” and that he asked Stevens, “[H]ow the weight of the evidence.” N.Y. Crim. Proc.

long does it take for gun powder to come off Law § 470.15(5). By way of contrast to a

your hand?” (A. 430-31.) sufficiency-of-the-evidence claim, the state

court considering the weight of the evidence

There was also ample physical evidence to has the power to set aside a guilty verdict

corroborate the testimonial evidence. The where it determines that the evidence against

police recovered ten shell casings and one the defendant is not credible. See People v.

unfired cartridge from near the property at 119 Bleakley, 69 N.Y.2d 490, 495 (1987); see also

Irving Avenue. (A. 479-83, 597-98.) The Hatcher v. Heath, No. 10-CV-782 (JG), 2011

State’s forensic expert testified that all of the WL 4710854, at *8 (E.D.N.Y. Oct. 4, 2011).

bullets and casings, including the bullet “The argument that the jury’s verdict was

19

contrary to the weight of the evidence, It is well established that prosecutors have

however, does not raise a question of federal a clear and unconditional duty to disclose all

due process, and is not cognizable on a habeas material, exculpatory evidence to the defense.

petition.” Hatcher, 2011 WL 4710854, at *8 See Brady, 373 U.S. at 87. “This duty exists

(citing Young v. Abrams, 698 F.2d 131, 135 whether or not the defense requests

(2d Cir. 1983)). exculpatory evidence.” Lewis v. Conn.

. OF. ir.

In any event, the juny verdict was not 3015 (citing United States» Bagley, 473 U.S

against the weight of evidence. Petitioner only 667, 681-82 (1985); see also Giglio v United

that the testi f Wilfred St ; °

ot ee dible (ECE No. i tg ) However, States, 405 U.S. 150, 154-55 (1972) (applying

‘thout th 4 Wilf dst ° Brady to impeachment evidence). In order to

ce miu einony of Wied Seve genase Bray natn, fede

, t: (1

evidence that petitioner, acting in concert with willfully : { wu vvtently aan vvoncased

evinced depr aed mnailierence to evidence; (2) the evidence at issue is favorable

le Ww he Tee h ess ve + fe to the defendant; and (3) the failure to disclose

8 ooine at on fh ob uple Pp 4 the this evidence resulted in prejudice.” United

je one eee ey cnet Now States v. Coppa, 267 F.3d 132, 140 (2d Cir.

Von iL, Ros oe >) violation of New 2001) (citing Strickler v. Greene, 527 U.S.

ork Penal Law § 125.25(2). 263, 281-82 (1999)).

4. Brady Claim As an initial matter, the State does not

Petitioner also argues that he is entitled to dispute the first two prongs of Br ady—i.e.,

habeas relief because the State failed to that Timothy Rich’s informant status

disclose that Timothy Rich was a police constituted Brady material—but argues that

informant prior to the shooting and at the time petitioner was not prejudiced by the

of his trial testimony in violation of Brady v. nondisclosure. (ECF No, 10-1 at 28-31.) The

Maryland, 373 U.S. 83 (£963). (ECF No. 1 at Court therefore only addresses whether

9,) The court denied the post-trial motion on petitioner was prejudiced by the State’s failure

this ground, concluding that the State should to disclose the impeachment evidence.

have disclosed that Timothy Rich was working “To establish prejudice, a plaintiff must

detectives knew oboe his status an show that the evidence was material.” Lewis,

. . 790 F.3d at 124. “The touchstone of

informant shooting (A Tie) bot that ther materiality is a reasonable probability of a

was no “reasonable “probability” that the different result[.]” Zeka v. Portuondo, 257

. 104 ir, 2 ti

outcome of the trial would have been different sanitted) (quot n ve an nit, y ee

had the information been disclosed to defense eThe amen ie net

counsel (A. 1168-69) The Second 419, 434 (1995)). “The question is not

Department agreed that there was ho whether the defendant would more likely than

dj ‘ot with th

reasonable probability that such nondisclosure ne pave received a auteren t verdiet with □□

area the outcome of the trial. oe No. II- received a fair trial, understood as a trial

a -) This Court agrees as weil. resulting in a verdict worthy of confidence. A

‘reasonable probability’ of a different result is

20

accordingly shown when the government’s any basis for habeas relief under 28 U.S.C.

evidentiary suppression ‘undermines § 2254. His petition for a writ of habeas

confidence in the outcome of the trial.’” corpus is therefore denied in its entirety.

Kyles, 514 U.S. at 434 (quoting Bagley, 473 Because petitioner has failed to make a

US. at 678). substantial showing of a denial of a

Here, given the overwhelming evidence of one kati al eh ne

petitioner’s guilt; the State’s failure to disclose 622. 53(0) Ina d dition the Co urt certi fies

he mpeachnet evden: regning Timothy pra to 38 USC, $1910) ht any

undermine confidence in the outcome of the appeal from this Order would not be taken m

trial. As noted in detail above, multiple good a 27 nerehore, in forma PaUP □□

witnesses testified that petitioner was involved See Coppedge » □□ 4 States, ° SOUS. "38,

in the shooting and assisted—either jointly or 444-45 (1962). The Clerk of the Court shall

jammed. (See A. ne me 330 phen it enter judgment accordingly and close this

382-83, 430-31.) There was also substantial case.

physical evidence used by the State to support

the testimony of these witnesses. (See A. 479-

83, 597-602, 605, 625-26.) And, as the State SO ORDERED.

notes, Timothy Rich mostly provided IsiJoseph F. Bianco

background testimony regarding the events

leading up to the shooting, which were IOSEPHT. BIANCO

corroborated by other witnesses and J SEPH F. BIANCO

uncontested, See Strickler, 527 U.S. at 293 United States Circuit Judge

(explaining that the existence of corroborating (sitting by designation)

evidence lessened the materiality of

undisclosed impeachment __ evidence). Dated: August 9, 2021

Moreover, Timothy Rich was not present at Central Islip, New York

the shooting and, with respect to the elements

of the crime, only testified that, following the □ □ *

shooting, petitioner stated that he had “un- Petitioner is proceeding pro se. Respondent is

jammed” the gun. (A. 382-83.) Thus, even if represented by Caren C. Manzello, Assistant

Timothy Rich had been effectively impeached District Attorney, for Timothy Sini, District

(or had not testified at all), there is no basis Attomey of Suffolk County, 200 Center Drive,

conclude that the outcome would have been Riverhead, New York, 11901.

different given the overwhelming evidence

established through the other witnesses and

physical evidence. Accordingly, petitioner’s

claim for habeas relief on the basis of withheld

Brady material is without merit.

VI. CONCLUSION

For the reasons set forth above, the Court

concludes that petitioner failed to demonstrate

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