Philips v. Brown

Filing 74

MEMORANDUM AND ORDER denying 60 Motion to Reconsider and Vacate. C/M by chambers. Ordered by Senior Judge Frederic Block on 1/23/12. (Chee, Alvin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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GEORGE PHILIPS,
Petitioner,
-againstWILLIAM BROWN,

MEMORANDUM AND ORDER
Case No. 08-CV-2625
Case No. 08-CV-2626

Respondent.
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Appearances:
For the Petitioner:
HERALD PRICE FAHRINGER, ESQ.
ERICA DUBNO, ESQ.
Fahringer & Dubno
120 East 56th Street, Suite 1150
New York, NY 10022
GEORGE PHILIPS, pro se
#00AA2299
Eastern Correctional Facility
P.O. Box 338
Napanoch, NY 12458-0338

For the Respondent:
RICHARD BROWN, ESQ.
Queens County District Attorney
125-01 Queens Boulevard
Kew Gardens, NY 11415
By:
JOHN CASTELLANO, ESQ.
KAREN WEISS, ESQ.
Assistant District Attorneys
KATHLEEN RICE, ESQ.
Nassau County District Attorney
262 Old Country Road
Mineola, New York 11501
By:
JASON WEINSTEIN, ESQ.
MARGARET MAINSUCH, ESQ.
Assistant District Attorneys

BLOCK, Senior District Judge:
Petitioner, George Philips, was convicted of several sex offenses by a Queens
County jury and pleaded guilty to similar charges in Nassau County. On May 23, 2011, the
Court issued a memorandum and order (“M&O”) denying his two petitions for writs of
habeas corpus under 28 U.S.C. § 2254. Now proceeding pro se, he moves to “reconsider and

vacate” the M&O pursuant to Federal Rules of Civil Procedure 59(e) and 60(b).1 For the
following reasons, the motions are denied.
I
Philips’s submission is a page-by-page critique of the Court’s M&O. The first
9 pages are devoted to perceived errors and omissions in Part I of the M&O. Rather than
address each individually, the Court need only point out that matters presented in that
section were background only and not part of the Court’s legal analysis. Since errors in
Part I—if any there were—did not affect the disposition of Philips’s claims, they are not
grounds for reconsideration. Accordingly, the Court proceeds to the challenges to the
substance of the M&O.
A. Fourth Amendment Challenges (Claims 1-3)
The Court held that Philips’s first three claims were barred by Stone v. Powell,
428 U.S. 465 (1976). See M&O at 13. Philips responds that the Queens County suppression
judge was biased because he “relied on the direct testimony of detectives instead of their

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Rule 59(e) authorizes a district court to alter or amend its judgment based on
matters it overlooked or misapprehended. See, e.g., Park South Tenants Corp. v. 200 Central
Park Assocs., 754 F. Supp. 352, 354 (S.D.N.Y. 1991). Rule 60(b) allows relief from a judgment
for, inter alia, a “mistake” of law or fact. See id. R. 60(b)(1).
On the same day he filed the present motions, Philips filed a notice of appeal. The
filing of a timely Rule 59(e) motion holds the notice of appeal in abeyance until the motion
is disposed of. See Fed. R. App. P. 4(a)(4)(B)(i). A Rule 60(b) motion does not toll the time
for taking an appeal, but “a district court may entertain and deny [such a] motion after an
appeal has been taken.” New York v. National Servs. Indus., Inc., 208 F.R.D. 38, 40 (E.D.N.Y.
2002) (citing Tolliver v. County of Sullivan, 957 F.2d 47 (2d Cir. 1992), and Ryan v. United
States Lines Co., 303 F.2d 430 (2d Cir. 1962)).
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testimony on cross-examination.” Mot. for Reconsideration at 10 (emphasis omitted). The
record reflects that the judge considered all of the testimony; that he chose to resolve
inconsistencies against Philips does not demonstrate bias. In any event, Philips does not
offer any evidence of bias in the appellate court that reviewed and upheld the denial of
Philips’s Fourth Amendment challenges.
B. DNA Evidence (Claim 4)
The Court held that Philips had not established that admission of DNA
evidence against him was contrary to, or an unreasonable application of, “clearly
established Federal law, as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). Philips argues, at length, that this claim was preserved. That is
irrelevant inasmuch as the Court resolved the claim on the merits. See M&O at 15 (“The
Court need not address Philips’s argument that it should disregard the procedural bar as
an ‘exorbitant’ application of New York’s preservation rules because his challenge to the
DNA evidence fails on the merits.”).
Philips next argues that the Court erred in considering “only” Melendez-Diaz
v. Massachusetts, 129 S. Ct. 2527 (2009), in connection with his challenge to the DNA
evidence. However, the only other case he offers as representing clearly established
Supreme Court law at the time his conviction became final is Crawford v. Washington, 541
U.S. 36 (2004). Although the Court did not cite Crawford, a necessary implication of its
holding that the applicability of the Confrontation Clause to lab test results was not clearly
established until Melendez-Diaz was decided in 2009 is that the principle was not clearly

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established at the time Crawford was decided in 2004. Therefore, the admission of the DNA
evidence was not contrary to, or an unreasonable application of, Crawford.
Finally, Philips challenges that Court’s conclusion, mentioned above, that
Melendez-Diaz announced a new rule of law that does not apply to convictions—like
Philips’s—that became final before 2009. However, he does not present any overlooked
facts or intervening law that alters the Court’s conclusion to follow the weight of authority
on that issue in the absence of any Supreme Court or Second Circuit authority. See M&O
at 14 (citing Likely v. Ruane, 642 F.3d 99 (1st Cir. 1999), Watson v. Artus, 2010 WL 5060861
(S.D.N.Y. July 22, 2010), and Vega v. Walsh, 2010 WL 2265043 (E.D.N.Y. May 28, 2010).
C. Prosecutorial Misconduct (Claim 5)
With respect to Philips’s challenges to the Queens prosecutor’s closing
summation, the Court held that they were procedurally barred and, in the alternative, that
they did not demonstrate that the Appellate Division’s affirmance was contrary to, or an
unreasonable application of, Supreme Court precedent. See M&O at 15-16 & n.8. Philips
challenges both holdings in his motion for reconsideration, but the Court need only
address the latter. Philips focuses on the Queens prosecutor’s conceded “lies” during
summations, but there is no evidence that the jury ignored its duty to determine the facts
based on the evidence, and not on alleged misstatements of the record by counsel.
With respect to Philips’s Brady claims, he accuses the court of limiting his
claims to the 911 call by Gerald Lavin. Regardless of the number of Brady violations Philips
intended to assert, they were all waived (with respect to the Nassau County case) by his

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guilty plea. See M&O at 16. In reaching that conclusion, the Appellate Division applied
state waiver law, and Philips has not persuaded the Court that the Constitution compels
a different result.
Philips argues that the Brady violations were also relevant to the Queens case.
Be that as it may, the Court is at a loss to find those claims asserted to either an appellate
brief or § 440.10 motion addressed to the Queens convictions. Therefore, there were not
exhausted in that case, and are now procedurally barred.
Finally, Philips faults the Court for not addressing other claims of
prosecutorial misconduct; the only such claim he identifies is a claim “concerning false
statements in support of search warrants and court orders.” Mot. for Reconsideration at
14. He does not provide any reason why those claims would not be barred by Stone v.
Powell, as his other Fourth Amendment claims are.
D. Evidentiary Challenges (Claim 6)
The Court held that the DNA evidence and inculpatory statements by Philips
were sufficient to satisfy Jackson v. Virginia, 443 U.S. 307 (1979), as to the sufficiency of the
evidence. See M&O at 17. Philips lists four problems with the DNA evidence: the inability
to cross-examine the actual tester, chain of custody, disavowal of the testing protocols by
the prosecution’s DNA expert, and possible false testimony by that same expert regarding
the reliability of test results. The first of those problems was considered and rejected in
connection with Philips’s Confrontation Clause claim. See supra Part I.B. The remaining
three were considered and rejected because they go to the weight to be given the DNA

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evidence, not its legal sufficiency. See M&O at 17 (“As for Philips’s claim that the verdict
was against the weight of the evidence, that is not a constitutional claim.”).
With respect to the inculpatory statements, Philips argues that the
prosecution conceded that the jury does not rely on that evidence. While it might be true
that the jury did not convict based solely on the inculpatory statements, see M&O at 13
(“The DNA evidence was clearly important: Philips was convicted of charges supported
by DNA evidence, and acquitted of all others.”), it does not follow that the jury ignored it
when corroborated by the DNA evidence.
E. Nassau County Grand Jury (Claim 7)
The Court held that Philips’s claims of irregularities in the Nassau County
grand jury proceedings—including planted and fabricated inculpatory evidence and
withheld exculpatory evidence—were not cognizable on habeas. See M&O at 18 (citing
Lopez v. Riley, 865 F.2d 30 (2d Cir. 1989)). Citing Wainwright v. Goode, 464 U.S. 78 (1983),
Philips responds that implementation of grand jury procedures may not violate the
Constitution. That is no answer to Riley’s holding that errors like those claimed by Philips
are cured by conviction by a petit jury. See 865 F.3d at 33 (“The particular claims of
impropriety before the grand jury in this case concern the sufficiency of the evidence, a
failure to develop exculpatory evidence by the prosecutor, the presentation of prejudicial
evidence and error in explaining the law. Each of these alleged improprieties was cured
in the trial before the petit jury, which convicted. Under [United States v. Mechanik, 475 U.S.
66 (1986)], therefore, error before the grand jury, if any, was harmless.”) While Philips’s

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Nassau County conviction was secured by an Alford plea instead of a jury trial, the
principle remains the same. Even if Philips was not required to admit factual guilt, his plea
relieved the government of its burden of proving it. Absent any negotiated right to pursue
the issue on appeal, Philips cannot claim that grand jury errors call his the validity of his
ultimate conviction into question.
F. § 440.10 Motions (Claim 8)
The Court held that the denial of leave to appeal the denial of Philips’s
Queens County § 440.10 motion was not reviewable on habeas. See M&O at 18-19. Philips
notes that a habeas court can review a claimed constitutional violation that occurred in a
§ 440.10 proceeding, but the Court cannot fathom how the denial of leave to appeal could
rise to the level of a due-process violation, as Philips claimed.
Philips argues that the Court ignored claims raised in his Nassau County
§ 440.10 motion. As far as the Court can glean, however, the allegedly overlooked claims
involve the Brady issue addressed above. As noted, the Appellate Division’s conclusion
that Philips’s Alford plea waived that issue was not contrary to, or an unreasonable
application of any Supreme Court precedent. See supra Part I.C.
G. Other Confrontation Claims (Claim 9)
The Court held that Philips had not exhausted his claim that his inability to
call “Officer White” as a witness violated the Confrontation Clause, and that he was now
procedurally barred from doing so. See M&O at 19-20. Philips argues that the Appellate
Division did not find his claim “vague,” that the prosecutor did not respond to the claim,

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and that the Court misapprehended the full range of reasons why he wanted to call Officer
White. None of those arguments changes the fact that the Appellate Division was not
given a fair opportunity to address the claim, and that it would not do so now. Moreover,
the Court noted that the trial court’s basis for not allowing Officer White to testify was
based on a independent and adequate state evidentiary rule. See M&O at 20 n.10 (“[T]he
trial judge rejected Philips’s request to admit White’s testimony on account of Philips’s
failure to confront Corr with the allegedly inconsistent statement to which White would
have hypothetically testified.”). Philips nowhere explains how application of that rule rose
to the level of a federal constitutional violation.
Philips further argues that the Court overlooked a claim that he was not
allowed to “confront” police reports, including a recording of the 911 call. This claim was
similarly described to the Appellate Division, see Decl. of Harold Fahringer, Ex. K at 121
(“[T]he judge [precluded] police reports at trial and pretrial[.]”), and is, therefore, similarly
unpreserved but procedurally barred.
H. Evidence of Uncharged Crimes (Claim 10)
The Court held that the admission of evidence of an uncharged crime did not
rise to the level of a due-process violation, and that the Appellate Division’s decision that
the evidence was properly admitted was not contrary to, or an unreasonable application
of, Supreme Court precedent. See M&O at 20. Phillips simply repeats his arguments to the
contrary, which is not a valid basis for reconsideration. See Sequa Corp. v. GBJ Corp., 156
F.3d 136, 144 (2d Cir. 1998) (“It is well-settled that Rule 59 is not a vehicle for relitigating

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old issues, presenting the case under new theories, securing a rehearing on the merits, or
otherwise taking a ‘second bite at the apple[.]’”).
II
For the foregoing reasons, Philips’s motions are denied.
SO ORDERED.

s/ Judge Frederic Block
___________________________________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
January 23, 2012

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