Opinion
No. 01 Civ. 3984 (DLC).
July 21, 2003
Budha Tor, Comstock, New York, pro se.
Peter A. Sell, Esq., Assistant District Attorney Bronx District Attorney's Office, Bronx, NY, for Respondent.
OPINION AND ORDER
On November 4, 2003, this Court denied Budha Tor's ("Tor") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See Tor v. Duncan, No. 01 Civ. 3984 (DLC), 2003 WL 22479250 (S.D.N.Y. Nov. 4, 2003) (the "November Opinion"). On November 18, Tor filed a handwritten motion for reconsideration of that decision. On November 20, Tor filed a notice of appeal to the Second Circuit and moved for a certificate of appealability on the same grounds argued in his November 18 motion. For the reasons that follow, the motion for reconsideration is denied.
In addition to these two motions, Tor submitted to the Court several other motions and supporting papers, none of which appear to have been served on the Respondent or filed with the Clerk of Court. On November 24, Tor supplied this Court with "Supporting Exhibits for the Previously Filed Request for Reconsideration Application Pursuant to Federal Rules of Civil Proceedings 60(b)(1) [sic]." On December 11, Tor moved for relief, pursuant to Rule 60(a), Fed.R.Civ.P., from this Court's denial of his habeas petition on the ground that a "clerical error" was made by the Court in overlooking Tor's arguments in his original petition. On January 20, Tor made "An Attempt to Clarify the Previously Hastily Filed Motions [sic]" in which he stated that his November 18 motion for reconsideration was timely filed, but that if it was deemed untimely filed, the Court convert it to Rule 60(b) motion. Tor also withdrew his previous motion filed under Rule 60(a), Fed.R.Civ.P.
While the filing of a notice of appeal ordinarily divests this Court of jurisdiction, a notice of appeal filed before the disposition of a motion to amend or alter the judgment under Rule 59(e), Fed.R.Civ.P., is not effective until the motion has been decided. See Rule 4(B)(i), Fed.R.App.P.; Lowrance v. Achtyl, 20 F.3d 529, 533 (2d Cir. 1994). A motion for reconsideration under this Court's local rules is the functional equivalent of a motion under Rule 59(e). This Court therefore has jurisdiction over Tor's motion.
Background
Tor is currently serving an indeterminate sentence of twenty-five years to life imprisonment for a 1993 conviction for murder in the second degree. Tor was convicted principally on the testimony of Derrick Ward ("Ward"), with whom he shared a cell during a period of incarceration unrelated to this petition. The murder occurred at 1910 Morris Avenue in the Bronx during the time when Tor lived in that building. Familiarity with the facts underlying Tor's conviction as described in the November Opinion is assumed. In his original petition, Tor argued that (1) the prosecution failed to disclose evidence favorable to him in violation of Brady v. Maryland, 373 U.S. 83 (1963); (2) that he received ineffective assistance of trial counsel based on his counsel's failure to use Rosario material to impeach the prosecution's witnesses; and (3) that the trial court delivered erroneous instructions to the jury regarding the elements of second degree murder.
Rosario requires that the state prosecutor make available its witnesses' prior statements in their entirety to a defendant for purposes of cross-examination. See People v. Rosario, 213 N.Y.S.2d 448 (1961).
Tor now argues that (1) his jury instruction claim was exhausted in state court; (2) the trial court's jury instructions impermissibly conflated the elements of second-degree murder; (3) the trial court erroneously instructed the jury on the concepts of intent, premeditation and deliberation; (3) his ineffective assistance of counsel claim should not have been judged under an "actual innocence" standard because his Rosario claim was cognizable on federal habeas corpus review; and (4) even if his ineffective assistance of counsel claim were judged on an actual innocence standard, evidence submitted with his original petition would support such a finding.
Discussion
A party moving for reconsideration must "set forth concisely the matters or controlling decisions which counsel believes the court has overlooked." U.S. Dist. Ct. Rules S. E.D.N.Y., Civil Rule 6.3 ("Local Rule 6.3"). Thus, to be successful on a motion for reconsideration, the movant must demonstrate that the court has overlooked controlling decisions or factual matters that were presented to it on the underlying motion. See Local Rule 6.3; Eisemann v. Greene, 204 F.3d 393, 395 n. 2 (2d Cir. 2000); Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). A Local Rule 6.3 motion "may not advance new facts, issues, or arguments not previously presented to the court." Bonnie Co. Fashions, Inc. v. Bankers Trust Co., 171 F.R.D. 79, 82 (S.D.N.Y. 1997).
In opposition to Tor's motion, the Respondent applies the standard set forth for Rule 60(b) motions. See Rule 60(b), Fed.R.Civ.P. Tor's November 18 motion for reconsideration does not state the rule pursuant to which he seeks relief. In his submissions made subsequent to the November 18 motion, Tor alternately refers to the November 18 motion as having been filed pursuant to Local Rule 6.3 and to Rule 60(b). Because Tor asks this Court to reconsider the arguments he presented in his original habeas petition, and his November 18 motion was timely filed, his motion for reconsideration is deemed filed pursuant to Local Rule 6.3. See Harris v. United States, 367 F.3d 74, 77 (2d Cir. 2004) ("relief under Rule 60(b) is available for a previous habeas proceeding only when the Rule 60(b) motion attacks the integrity of the previous habeas proceeding rather than the underlying criminal conviction").
A. Jury Instructions
The November Opinion denied on the merits Tor's claim that the trial court improperly conflated the elements of second-degree murder. In his original petition, Tor failed to show that the trial court's allegedly erroneous instructions deprived him of due process. See Tor v. Duncan, 2003 WL 22479250, at *3; see also Middleton v. McNeil, 124 S.Ct. 1830, 1832 (2004) (per curiam) ("[t]he question is whether the ailing instruction so infected the entire trial that the resulting conviction violates due process" (citation omitted)). With respect to this claim, Tor's motion for reconsideration does not present new arguments or facts not previously presented to and addressed by this Court in the November Opinion.
Although Tor appears to be correct that his jury instruction claim was procedurally exhausted, the Court did not rely on the exhaustion issue in denying his petition.
Tor correctly notes, however, that the November Opinion did not explicitly analyze the second half of his jury instruction claim. In his petition, Tor not only argued that the trial court had impermissibly conflated the elements of second degree murder, but also that it had erroneously instructed the jury that it did not have to find premeditation and deliberation in order to find intent. Because premeditation and deliberation have been removed from the New York murder statute, Tor maintained that the trial court's instructions effectively abrogated the intent requirement and "helped ease the people['s] burden." Tor also argued that the trial court's instruction that intent need not be present for any length of time prior to the killing "tells the jury that basically it need not be present at all."
"Under the Penal Law, the classical requirements of premeditation and deliberation were eliminated from the necessary elements for murder: the sole mens rea required is merely homicidal intent." N.Y. Penal Law § 125.25 (McKinney's 2004), Practice Commentaries.
Tor does not show that the trial court's instructions were erroneous. The trial court's instructions were almost identical to the model jury charge for second degree murder in New York, which states:
[P]remeditation is not a prerequisite in determining intent. Intent may be formed in seconds, actually in a brief instant before the commission of an act. However, it is necessary for the intent to be formed prior to or during the commission of the act or acts resulting in the commission of a crime. You may, but you need not, infer that a person intends that which is the natural and probable consequences of the act done by him (her). This permissible inference in no way, however, shifts the burden of proof beyond a reasonable doubt with respect to the element of intent from the shoulders of the prosecution.
2 Charges to Jury Requests to Charge in Crim. Case in N.Y. § 41:27 (2004) (emphasis supplied). See also People v. Townsley, 659 N.Y.S.2d 906, 909 (3d Dep't. 1997) (approving jury instructions on criminal intent stating that the prosecution need not establish that "the intent to kill was present in the mind of the Defendant for any period of time before" he committed the murder, but only that "such intent to kill was in the mind of the Defendant at the time that he did so").
Even if the trial judge's instructions on the elements of second degree murder could be deemed erroneous, it did not deprive Tor of due process.
"[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge. . . . If the charge as a whole is ambiguous, the question is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution."Middleton v. McNeil, 124 S.Ct. at 1832 (citation omitted). Tor has never argued that the remainder of the jury charge was deficient, or that the jury applied the challenged portion of the instruction in a way that violated his Constitutional rights.
B. Ineffective Assistance of Counsel and Actual Innocence
Tor challenges this Court's denial of his ineffective assistance of counsel claim, which was based on his trial attorney's failure to use certain Rosario material to impeach the prosecution's chief law enforcement witness, and to introduce into evidence lab reports and "other crime scene reports" that would have impeached the testimony of prosecution witnesses and revealed his actual innocence. This claim is principally an argument by Tor that his attorney should have cross-examined Detective Salvatore Lifrieri ("Lifrieri"), the lead police investigator in the case, more extensively about the quality of his investigation and whether there were other suspects that should have been identified and investigated. The November Opinion found that Tor's ineffective assistance of counsel claim was procedurally defaulted and therefore subject to an "actual innocence" standard. According to Tor, his claim was not procedurally defaulted, but even if it were, evidence submitted with his original petition shows his actual innocence.
Tor appears to misapprehend the nature of an ineffective assistance of counsel claim premised on a Rosario violation. Such claim typically centers on trial counsel's failure to pursue a Rosario claim against the government for not turning over evidence in its possession that the trial counsel could have used to impeach the prosecution's witnesses. Here, Tor does not allege that his counsel failed to preserve a Rosario objection, but rather that his counsel simply did not use Rosario material turned over by the government to impeach Lifrieri or to present to the jury alternative theories as to who committed the murder.
The November Opinion adopted the Magistrate Judge's finding in his Report and Recommendation ("Report") that Tor's ineffective assistance of counsel claim was procedurally defaulted, and that Tor had not shown cause for his default or any prejudice arising therefrom (i.e., that he was actually innocent). See Tor v. Duncan, 2003 WL 22479250, at *4 (citing Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001)). In his objection to the Report, Tor relied on Massaro v. United States, 123 S.Ct. 1690 (2003), in arguing that his ineffective assistance claim was not procedurally defaulted because it was raised with respect to aRosario claim, and thus was not subject to an "actual innocence" standard. The November Opinion foundMassaro inapposite because it concerned habeas petitions forfederal prisoners filed pursuant to 28 U.S.C § 2255, not petitions for state prisoners such as Tor filed pursuant to 28 U.S.C. § 2254.
In Massaro, the Supreme Court held that an ineffective assistance of counsel claim may be brought for the first time in a Section 2255 habeas petition, "whether or not the petitioner could have raised the claim on direct appeal." Id. at 1694.
Tor now relies on Flores v. Demskie, 215 F.3d 293 (2d Cir. 2000), in support of the same exhaustion argument previously rejected by this Court. In Flores, which concerned a habeas petition brought pursuant to 28 U.S.C. § 2254, the prosecution lost a memo book that contained a police officer's notes of her interview with the victim's mother. Defense counsel in Flores waived his client's right to present the prosecution's Rosario violation to the jury. The Second Circuit found that the defendant was entitled to a new trial because his attorney "waived a strong Rosario claim without reason, without consulting [the defendant], and despite the trial judge's warning to the prosecution that it risked an order setting aside the verdict for failure to turn [the potential Rosario material] over to the defense." Id. at 305.
As an initial matter, it is not clear why Tor relies onFlores for the proposition that a claim for ineffective assistance of counsel based on a Rosario violation need not be exhausted in state court. There was no discussion in Flores regarding this purported rule. Moreover, the facts of Flores are distinguishable from the present case. Unlike in Flores, Tor's claim for ineffective assistance of counsel is not premised on his counsel's waiver of a Rosario claim. As Tor presents it, the issue in his case is his counsel's decision not to use certain materials to impeach witnesses, not his counsel's failure to accuse the prosecutor of a Rosario violation.
Tor contends that, even if his ineffective assistance of counsel claim were subject to an "actual innocence" standard, evidence submitted with his original petition establishes his actual innocence. Tor points to several police reports of interviews taken on the day the victim's body was found, and a serology report from the police laboratory. While the Court considered and rejected Tor's claim that his actual innocence was supported by trial counsel's failure "to make use of `other crime scene reports,' which showed inconsistencies in the testimony of prosecution witnesses," Tor v. Duncan, 2003 WL 22479250, at *4, Tor correctly notes that the November Opinion did not separately address each piece of evidence. Each of the law enforcement reports will be discussed below.
It should be noted that Tor was also interviewed during that same time by the police in connection with its investigation of the murder.
The police reports were attached as exhibits to Tor's Traverse Brief. A Traverse Brief is the reply brief submitted in response to the Government's opposition to a habeas petition. The serology report was attached as an exhibit to Tor's memorandum of law in support of his petition. Tor's objections to the Report identified the police reports but not the serology report.
1. Interview of Medical Examiner
According to a report summarizing an interview with the medical examiner who performed the initial autopsy on the victim, "the wounds and injuries sustained [by the victim] were not consistant [sic] with a fall from a roof." At trial, another medical examiner testified that the injuries to the victim's body were consistent with the body having been dumped from the third floor window of the apartment building in which Tor resided. Tor argues that his trial counsel made no attempt to introduce the police report during his cross-examination of the medical examiner.
Read as a whole, the report does not support a finding of actual innocence. The medical examiner simply stated that, after performing an autopsy on the victim, he believed that her injuries were consistent with foul play, rather than an accidental "fall" from the roof, and that the investigation should therefore remain open. Nothing in the report undermines the prosecution's contention that there had been a murder or points to Tor's innocence.
2. Interview with Sex Crimes Unit Detective
The second police report identified by Tor summarizes an interview conducted with a detective in the sex crimes unit. The detective stated that, during the week of the victim's murder, a woman was raped in the same precinct. According to the report, the rapist told his victim that "he had killed a girl and would kill again." The rape occurred in a different building located on a different street than the murder for which Tor was convicted. According to Tor, the act of placing the police report in the file "long before" he was a suspect signifies that the police "had to have felt that their [sic] was a possible connection with the murder at hand" Tor argues that his trial counsel "made no attempt to locate and or question said rape victim, find out details of her assailant's confession or his identity, nor introduce said police report" at trial.
The prosecution's theory at trial was that Tor had lured the victim back to his apartment with a promise of drugs for sex, and had subsequently killed her during intercourse. Nothing in the police report states that the rape resembled the circumstances surrounding the death of Tor's victim. Moreover, the fact that a rapist told his victim that he had killed before and would kill again is easily understood as an attempt to intimidate the rape victim, rather than as an admission by the rapist that he committed the crime for which Tor was convicted. The existence of this report in the murder file is insufficient to indicate Tor's innocence, a belief by the police that he was innocent, or his counsel's failure properly to represent him.
3. Interviews with Neighbors
Tor points to three police reports that briefly summarize interviews conducted by the police with Tor's neighbors on the day the victim's body was found. In the first report, a man named Jessy Stanton ("Stanton") told the police that he had not seen the victim in the area or in the building. He also informed the police that he rented out his room to "local ladies for 20 minutes at a time." In the second report, a man named Jimmy Hawkins ("Hawkins") told the police that his friend woke him up early that morning and told him to look out the window, whereupon he saw the victim's body. His friend informed him that somebody had already called the police, and Hawkins watched as the police arrived. In the third report, a woman named Stephanie Spencer ("Spencer") told the police that Jimmy had told her that the victim had been in Jessy's apartment "with a male named Julio" and that Julio did not live in the apartment building. Spencer further stated that she had not been home that weekend. According to Tor, these three reports taken together show that Stanton lied about having seen the victim over the weekend, and that the victim, who was "supposedly a prostitute," had been in Stanton's apartment with a john named "Julio". Tor asserts that his trial counsel made "no real attempt to present any of this [evidence] to the jury."
At the time of these interviews, Tor was not a suspect in the murder.
Jimmy and Jessy presumably refer to Hawkins and Stanton, respectively.
The three police reports do not require a hearing to determine why Tor's counsel chose not to use them during his cross-examination of Lifrieri. The reports do not identify a murderer or detail any first-hand observations of the murder. These reports and others summarize interviews of several residents of 1910 Morris Avenue, including Tor, conducted by the police in the initial stages of their investigation and are not evidence of Tor's innocence.
4. Serology Report
Finally, Tor points to laboratory tests conducted on the victim a few days after the discovery of her body. The tests showed that no semen was found on the victim's genitalia. According to Tor, his trial counsel failed to introduce the serology report to "either establish innocence or raise a basic doubt" with respect to the prosecution's theory of the case, that is, that he had killed the victim during intercourse.
The serology report does not rule out the possibility that Tor had intercourse with and killed the victim. For example, the report does not state that another man's semen was found on the victim, or that she had not had intercourse prior to her murder.
Even taken together, the failure by Tor's counsel to introduce into evidence the police and laboratory reports does not support his ineffective assistance of counsel claim. The police and laboratory reports were not material to the issue of Tor's innocence or guilt.
At its core, Tor's claim is not about having received ineffective assistance of counsel; rather, Tor's claim is that he is actually innocent. Tor points to the police and laboratory reports not to raise doubt about the competence of his counsel, but to do so with respect to his conviction as a whole. As to his actual innocence, however, Tor faces an insurmountable obstacle.
Tor has no way to explain how Ward would have learned of the murder except through Tor's own admissions. As much as testimony from inmate witnesses — known colloquially as "jailhouse snitches" — should be viewed with great caution, the circumstances here point inexorably to Tor's guilt. This is not a case in which publicity, or a request for help from the police, or any pending charges against Tor, or Ward's own connection with the building at 1910 Morris Avenue, can explain how Ward learned of the murder. The only plausible source of information about the murder was Tor himself. Beyond that, in his letter to the District Attorney, Ward accused a man who the police were able to confirm had actually lived at the time of the murder in the building where the victim was murdered. This critical fact is powerful corroboration of Ward's testimony.
Conclusion
For the reasons stated above, the motion for reconsideration is denied. I further decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). In addition, I find, pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962).
SO ORDERED.