Opinion
No. 01-CV-6500P.
June 16, 2004
DECISION ORDER
INTRODUCTION
Petitioner, Reggie Brown, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Court following a guilty plea to one count of robbery. The plea occurred following a mistrial. The parties have consented to disposition of this matter by the undersigned pursuant to 28 U.S.C. § 636(b). For the reasons set forth below, the petition is denied.
This matter was originally pending before United States Magistrate Judge William G. Bauer. By Order dated April 14, 2003, this case, along with other cases that had been assigned to Judge Bauer, was transferred to the undersigned consistent with the terms of the parties' original consent. (Docket # 11). At the time this case was filed, I served as Assistant Attorney General In Charge of the New York State Attorney General's Rochester Regional Office. At that time, petitioner was held in custody in New York State's Collins Correctional Facility, and respondent served as the Superintendent of that facility. As the person having custody of petitioner, Superintendent James Berbary was the properly-named respondent in this action. See 28 U.S.C. § 2243 ("The writ, or order to show cause shall be directed to the person having custody of the person detained").
By statute, the New York State Attorney General's Office represents New York State employees in state and federal court civil actions and proceedings arising out of acts occurring within the scope of their employment. N.Y. Pub. Off. Law § 17; N.Y. Exec. Law § 63. For this reason, and consistent with 28 U.S.C. § 2252, the Court's original Order in this case required the Clerk of the Court to serve both respondent and myself, as Assistant Attorney General In Charge. (Docket # 3). This Order also required the Clerk to mail a copy of the Order to the District Attorney of Eric County, whose office had prosecuted the petitioner on the charges of which he was convicted and which petitioner now challenges in this collateral proceeding. (Docket # 3).
The Advisory Committee Notes to Rule 4 of the Rules Governing § 2254 Cases provide, "Although the attorney general is served, he is not required to answer if it is more appropriate for some other agent to do so." My usual and customary practice was to advise the District Attorney's Office in writing of the pending habeas petition and to request that office to appear and represent respondent. As the docket sheet reflects, the Attorney General's Office did not appear in this matter; rather, the District Attorney's Office answered and appeared on behalf of respondent. (Docket # 8).
Accordingly, because I neither personally participated in, nor supervised, the defense of this action, I do not believe my disqualification from this case is required. See 28 U.S.C. § 455(b)(3). In Muench v. Isreal, 524 F. Supp. 1115, 1119 (E.D. Wis. 1981), the district judge determined that disqualification was not warranted under circumstances similar to this case. There, the judge, who had previously served as Attorney General for the State of Wisconsin, declined to disqualify himself from a federal habeas proceeding brought by a prisoner who had previously filed a direct appeal of his conviction in state court that had been handled by the Attorney General's Office during the time in which the judge had served as Attorney General. As the Court noted, "As Attorney General for the State of Wisconsin, this Court was obligated to formally represent the State in all matters before the Wisconsin Supreme Court. The substance of its participation, however, was principally formal, confined to having its name as Attorney General printed on the State's brief to the Wisconsin Supreme Court." Muench, 524 F. Supp. at 1118. See also Laird v. Tatum, 409 U.S. 824, 828, 837 (1972) (Supreme Court Justice's disqualification not necessary or authorized where he "never participated, either of record or in any advisory capacity, in . . . the case"; "a federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified") (citations omitted); United States v. Feldman, 1985 WL 4525, *2 (N.D. Ill. 1985) ("Arguably the United States Attorney, having supervision over the entire office, served `as counsel' on all cases handled by the Office during his tenure. However, even in that circumstance, recusal may be unnecessary if the judge did not participate in the case and his relationship to it was purely formal.").
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Brown was indicted on two counts of first degree robbery and one count of first degree assault as a result of an incident that occurred in the City of Buffalo on September 11, 1997. Brown was tried before a jury in Erie County Court (D'Amico, J.). A summary of the relevant trial testimony follows.
Seventy-seven year-old John Czaplinski, the victim, testified that he was in a neighborhood tavern when he made the mistake of pulling a bank envelope with money in it out of his pocket. Trial Transcript ("Tr.") at 113-14. Czaplinski stated that he was "positive" that he was spotted with the money by Brown and another man named Ronnie Coleman. Id. at 114. Czaplinski then left to go get a bowl of chicken soup at a local Chinese restaurant. Once outside, however, he heard footsteps behind him on the sidewalk and realized that he was going to be attacked. Id. at 112-13, 116-17. According to Czaplinski, Brown and Coleman were following him. Id. at 118. As Czaplinski turned slightly, he was hit on the head with a glass bottle and fell to the ground. Id. at 117, 121. Czaplinski testified that Brown was the one who struck him. Id. at 118. Czaplinski was conscious after the blow and watched Brown reach into his pants and remove his money. Id. at 125-26.
Fortuitously, Mark Stambach, a detective with the Buffalo Police Department, was riding by in a police car at the time and saw Brown "straddling" the victim, who was lying on the ground. Id. at 52. Officer Stambach saw Brown bring his arm down in a "striking motion" toward the victim's head. Id. Officer Stambach also saw Brown reach into the victim's pants pockets. Id. at 53-54. After pulling over, Officer Stambach confronted Brown and searched him, finding hospital discharge papers belonging to the victim in Brown's right hand and the bank envelope in Brown's coat pocket. Brown was then read his rights and placed under arrest. Id. at 55-57.
While at the crime scene, Officer Stambach saw the shattered remains of a beer bottle in the area just above where the victim's head had been on the sidewalk. Id. at 69-70, 77-79. He observed that the victim was lying on his back, facing upward, and that there were shards of green glass on his shoulder that appeared identical to the glass on the sidewalk. Id. at 91-92.
Officer James Giardina, who was riding in the police car with Officer Stambach, saw Brown standing over the victim and watched Brown take something from the victim and put it in his own pocket. Id. at 95. Officer Michael Lyons, who was driving the police car, saw Brown straddling the victim and observed him make contact with the victim's body in the waist area. Id. at 174-75. None of the officers saw anyone besides Brown in the area while this was occurring.
A fourth police officer, Tara Regan, arrived on the scene and took custody of Brown. In the police car, Brown spontaneously gave two versions of the events that had just occurred on the sidewalk. First, Brown said that he had been drinking at the tavern, had left the bar and had seen the victim's "stuff" lying "all over the place," at which point he had helped the victim pick up his possessions. Id. at 190-93. When Officer Regan did not react to his story, Brown said, "all right, all right," and then gave a second version of events. According to Brown, the victim had requested that Brown accompany him to a Chinese restaurant. As they were walking down the street, a "bunch of boys" ran by and pushed the victim down. When the police arrived, Brown was in the midst of "trying to help [the victim] pick his stuff up." Id. at 193-94.
The defense called two witnesses, both of whom were Brown's friends. Ronald Woods testified that he had been drinking with the victim at the tavern when he was joined by Brown. Woods claimed that he left the bar first, followed by Brown several minutes later, and the victim several minutes after that. According to Woods, a "tall, heavy man" came from behind Czaplinski and "bumped him like with a football block." Id. at 216-17. The victim then bounced off a fence and fell so that he was lying face down on the sidewalk. Id. at 219-20. Woods claimed that he could not stay to help Czaplinski, as Brown was, because a warrant was outstanding for his arrest stemming from a "quarrel" he had with his girlfriend the previous week. Id. at 221, 240-41.
The defense's second witness, Judy Berry, gave a markedly different version of events. She testified that she was with Brown, Woods, and five or six other people when she heard that the victim had "fallen." Id. at 258-62. Berry assumed that the victim fell because he was drunk. Id. at 263. Berry testified that she, Brown, and two other people went over to help the victim, but when they saw that he was bleeding, "everybody started screaming[,] [`]leave him there.[']" Id. at 262, 278. Berry claimed that she never saw Brown take anything from the victim, but she testified that she saw the police pull up and push through the crowd of five or six people — "may be more" — and arrest Brown. Id. at 273. Berry testified that she did not see Brown helping to pick up the victim's belongings. Id. at 278-83.
The jury received the case on May 14, 1998, and deliberated for approximately twelve hours. The following day, the trial judge received a note asking that a new jury foreman be appointed, but he denied that request, advising the jury not to get "too personally involved" in the deliberations. Id. at 383-84. The jury then requested clarification on the different robbery counts and returned to their deliberations. Approximately four hours later, the jury sent a note indicating that they were unable to reach a unanimous verdict on any of the counts. Id. at 388. At the prosecutor's request, and over defense counsel's objection, the trial judge gave an Allen charge. About an hour later, however, the jurors returned and stated that they were deadlocked. The trial judge then declared a mistrial. (Tr. 394).
Allen v. United States, 164 U.S. 492, 501-02 (1896) (finding no error in charge advising the dissenting jurors to consider the views of those in the majority and to consider whether their own views were reasonable under the circumstances); accord Lowenfield v. Phelps 484 U.S. 231, 237-38 (1988) (approving traditional Allen charge and favorably viewing it is an attempt to secure jury unanimity).
On May 28, 1998, Brown appeared with his attorney before the court and accepted the following plea agreement: in exchange for pleading guilty to the second count of the indictment, Robbery in the First Degree (New York Penal Law § 130.65(1)), the prosecution would dismiss the other two counts of the indictment and Brown would receive the minimum possible sentence of eight years' imprisonment. Brown also agreed to waive any right to appeal and to be sentenced as a second felony offender. See Plea Hearing Transcript ("Plea Tr.") at 2-3. In a colloquy with the court, Brown admitted that he had hit the victim over the head with a beer bottle and forcibly had taken his money. Id. at 9. Satisfied that the plea was knowing and voluntary, the trial judge accepted Brown's guilty plea. Id. at 10. Brown ultimately received the promised determinate sentence of eight years' imprisonment.
Brown appealed his conviction to the Appellate Division, Fourth Department, which unanimously affirmed the judgment against him on March 21, 2001. People v. Brown, 281 A.D.2d 962 (4th Dept. 2001). The New York Court of Appeals denied leave to appeal on July 2, 2001. People v. Brown, 96 N.Y.2d 899 (2001). Brown brought several motions to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10, but they are not pertinent to the disposition of the instant matter and will not be discussed in detail here. Brown filed the instant habeas petition on October 1, 2001.
Although these motions, as well as Brown's pro se supplemental brief on direct appeal, included some of the same issues raised herein, for the reasons discussed below, this Court finds that petitioner has waived his right to litigate the issues, other than the Brady claim, as a result of his guilty plea.
DISCUSSION
Brown raises the following grounds for habeas relief: (1) he "was denied equal protection of the law of due process, because procedures during [his] trial were done unethically and not according to the law"; (2) the prosecution failed to disclose Brady material in the form of forensic evidence concerning blood testing of Brown's clothes; (3) the identification procedure, utilized before the Grand Jury was impermissibly suggestive; (4) insufficient evidence was adduced at his trial; (5) the People unjustifiably failed to call witnesses; (6) the accusatory instrument was defective because the facts therein were based on Officer Regan's "information and belief" and thus were "generalized hearsay" because that officer did not arrive until after the incident occurred; and (7) there was a conflict of interest between the two prosecutors who worked on Brown's case. See Docket ## 1 and 7. For the reasons explained below, none of the claims raised by Brown entitles him to collateral relief.
The first prosecutor assigned to his case, Lynn Wessel ("Wessel"), asked to be removed from the case because she knew Brown when he was a maintenance worker at her office building and she was favorably disposed toward him. Justice D'Amico granted her request, and Michael Keane, Wessel's husband, was assigned to prosecute the case in her stead. Brown claims that Wessel continued to be involved in the prosecution of his case even after her recusal. When he presented this claim of prosecutorial misconduct to the state court, Justice D'Amico denied it, finding that Brown's allegations were made without any independent evidentiary support. The court concluded that, having failed to make the prima facie showing required by New York Criminal Procedure Law § 440.30(4)(d), Brown could not obtain relief on his conflict of interest claim. See 2/22/00 Memorandum and Order, attached as part of Exhibit C to Respondent's Appendix of Exhibits submitted in connection with this petition.
1. Brown's non- Brady Claims
It is well-settled that when a defendant pleads guilty to state criminal charges, he may not seek federal habeas corpus relief on the basis of constitutional claims antecedent to and independent of the guilty plea. E.g., Tollett v. Henderson, 411 U.S. 258, 267 (1973) ("[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process"); Blackledge v. Perry, 417 U.S. 21, 29-30 (1974). "Rather, a person complaining of such `antecedent constitutional violations' is limited in a federal habeas corpus proceeding to attacks on the voluntary and intelligent nature of the guilty plea, through proof that the advice received from counsel was not `within the range of competence demanded of attorneys in criminal cases.'" Blackledge, 417 U.S. at 30 (internal citations omitted) (citing McMann v. Richardson, 397 U.S. 759, 771 (1970)); see also Ellis v. Dyson, 421 U.S. 426, 442 (1975) (Powell, J., dissenting) (When a defendant pleads guilty to state criminal charges, "his conviction no longer can be said to rest on an alleged denial of a constitutional right," but rather "rests solely on the defendant's refusal to litigate the asserted right").
Judged under this authority, Brown is precluded from seeking habeas relief based on any alleged constitutional errors that occurred at the first trial which resulted in a hung jury. Thus, all of the claims except Brown's Brady claim are dismissed because any collateral attack based upon them is foreclosed by Brown's knowing, voluntary and intelligent guilty plea.
Respondent notes that as of January 18, 2002, the date on which it filed its Memorandum of Law (Docket # 9) in opposition to the petition, Brown's Brady claim was pending in state court through a motion to vacate the judgment. However, at that time — which was seven months after the motion was filed — respondent still had not submitted a response. See Docket # 9 at 11-12. In view of these facts, respondent took the position in this proceeding that "[i]n fairness to petitioner, respondent waives consideration of the exhaustion requirement." Id. at 12. The Court finds that, in light of respondent's express waiver, exhaustion is not a procedural bar to petitioner's Brady claim. See 28 U.S.C. § 2254(b)(3); Banks v. Dretke, 124 S. Ct. 1256, 1280 (2004). This Court notes as well that the record in this matter does not reflect whether the motion to vacate has been decided.
Furthermore, Brown misapprehends the nature and purpose of federal habeas relief. The writ of habeas corpus may issue with respect to " a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis supplied). In his petition, Brown overlooks the fact that the first trial did not result in a judgment of conviction against him. Brown is currently confined not because of any errors which allegedly occurred at the previous trial, but because he pleaded guilty to a felony offense. 2. Brown's Brady Claim
"To the extent that the prosecutor knows of material evidence favorable to the defendant in a criminal prosecution, the government has a due process obligation to disclose that evidence to the defendant." United States v. Avellino, 136 F.3d 249, 255 (2d Cir. 1998) (citing Kyles v. Whitley, 514 U.S. 419, 431 (1995); Brady v. Maryland, 373 U.S. 83, 87 (1963) (suppression by the prosecution of evidence favorable to the accused "violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution")). The state's obligation to disclose potentially exculpatory material exists whether a defendant is preparing for trial or is considering whether to plead guilty. See Avellino, 136 F.3d at 255 (defendant entitled to make determination concerning guilty plea with full awareness of favorable material evidence known to the government); Tate v. Wood, 963 F.2d 20, 24 (2d Cir. 1992). The Second Circuit has observed:
[A]lthough a guilty plea is generally considered valid so long as the plea was intelligent and voluntary, see, e.g., Brady v. United States, 397 U.S. 742, 748 (1970); Boykin v. Alabama, 395 U.S. 238, 242 (1969), the validity of the plea must be reassessed if it resulted from "impermissible conduct by state agents," Brady v. United States, 397 U.S. at 757. Impermissible conduct includes Brady violations.Avellino, 136 F.3d at 255. See, e.g., Miller v. Angliker, 848 F.2d 1312, 1320-23 (2d Cir.) (holding that Brady violation invalidated agreement to plead not guilty by reason of insanity), cert. denied, 488 U.S. 890 (1988).
As part of his pre-trial discovery demands, Brown requested the reports of any scientific tests performed by individuals whom the People intended to call as witnesses at trial. The prosecutor handling the case responded that no Brady material existed and that there were no such scientific reports. Following his guilty plea, Brown made a Freedom of Information Law request to the Erie County Department of Central Police Services and obtained a report concluding that the sweatshirt and jeans worn by Brown at the time of his arrest had tested negative for the presence of blood. See Docket # 9 at 11; Docket # 7 at 7. According to respondent, the District Attorney's office turned over a copy of the lab request form to defense counsel prior to trial. See Docket # 7, Ex. D-11. Nothing in the record establishes, however, that the prosecution provided a copy of the actual report to defense counsel.
The handwritten notes on the laboratory report appear to reflect that the examiner had initially believed that the sweatshirt contained blood stains, only later to discover through testing that the stains were not in fact blood stains. Docket # 1, Ex. E-7.
Neither the original prosecutor on the case, Lynn Wessel, nor the prosecutor who tried the case, Michael Keane, apparently remembers receiving or providing to the defense a copy of the report. See Docket # 7, Ex. D-11. The laboratory records, however, reflect that the report was mailed to Wessel on April 1, 1998. Docket # 1, Ex. E-7, Keane evidently took over the prosecution on March 24, 1998, prior to the report's mailing. Docket # 7, Ex. D-11.
Accepting that the prosecution failed to disclose the laboratory report, I nonetheless conclude that Brown has failed to demonstrate that the lab report was favorable and material to his defense. Where the validity of a guilty plea is challenged, evidence is considered material where "there is a reasonable probability that but for the failure to produce such information the defendant would not have entered the plea but instead would have insisted on going to trial." United States v. Avellino, 136 F.3d at 256 (citing Tate v. Wood, 936 F.2d at 24)). "[T]he test is an objective one, depending largely on the likely persuasiveness of the withheld information." Miller v. Angliker, 848 F.2d at 1322.
Brown does not explain how the absence of blood on his clothing is anything more than a neutral piece of evidence, considering that he and the victim were not engaged in a close struggle and that there was no evidence that the victim's blood spattered when he was struck. Tr. at 70 (bleeding from victim was "[t]hick, coagulated and spreading" on the sidewalk). Even if the lab report could be considered exculpatory, a proposition which seems dubious to this Court, it is not material. According to Brown, the lab report would have changed the outcome of the trial because "[i]f 11 jurors voted to convict, it was surely in favor of the tactics used by the respondents to keep the lab report concealed[.]" Docket # 7 at 8. This argument is belied by the fact that Officer Stambach admitted on cross-examination that Brown had no blood whatsoever on his person. See Tr. at 79-80. Thus, the lab report which simply stated that there was no blood found on the tested clothing items would have been cumulative. Viewed in this context, I cannot conclude that it is reasonably probable that Brown would not have pleaded guilty had the report been disclosed.
CONCLUSION
For the reasons stated above, Reggie Brown's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied, and the petition is dismissed. Because Brown has failed to make a substantial showing of a denial of a constitutional right, I decline to issue a certificate of appealability. See 28 U.S.C. § 2253. Further, I certify that any appeal from this order would not be taken in good faith. See 28 U.S.C. § 1915(a); Coppedge v. United States, 369 U.S. 438, 444 (1962).