Diaz v. Bellnier

Filing 17

MEMORANDUM & ORDER: The 1 Petition for Habeas Corpus is denied as time-barred pursuant to 28 U.S.C. § 2244(d)(1) and the Court will not issue a Certificate of Appealability. Petitioner's 16 request for appointment of counsel i s denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. The Clerk of Court is directed to close the case. SO ORDERED by Judge Margo K. Brodie, on 9/24/2012. C/mailed to pro se Petitioner. (Forwarded for Judgment.) (Latka-Mucha, Wieslawa)

FILED

IN Ct.!RK'S OFFIC!
u.s. Clamlor COURT e.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------------------------}C
FREDERICK DIAZ,
Petitioner,

*

SEP'24 2012

*

BROOKLYN OFFICE

MEMORANDUM & ORDER
08 CV 4009 (MKB)

- againstJOSEPH L. BELLNIER,
Respondent.
------------------------------------------------------}C
MARGO K. BRODIE, United States District Judge:
Petitioner Frederick Diaz brings the above-captioned pro se petition pursuant to 28
U.S.c. § 2254, in which he alleges that he is being held in state custody in violation of his
federal constitutional rights. Petitioner's claims arise from a judgment of conviction after a jury
trial in New York Supreme Court, Kings County, for four counts of murder (two counts of
murder in the second degree and two counts of felony murder). Petitioner was sentenced to 50
years to life imprisonment. Petitioner appealed his conviction to the New York Appellate
Division, Second Department, claiming that: (1) he was denied due process when the trial court
failed to instruct the jury not to consider his co-defendant's confession as evidence of
Petitioner's guilt; (2) the prosecutor's summation was prejudicial; (3) the trial court's
instructions regarding the burglary charge were erroneous; and (4) the consecutive sentences
were e}Ccessive and harsh. The Appellate Division rejected Petitioner's claims and affirmed his
conviction. People v. Diaz, 544 N.Y.S.2d 500 (App. Div. 1989). On October 26, 1989, the New
York Court of Appeals denied leave to appeal. People v. Diaz, 74 N.Y.2d 895 (1989). In the
instant petition, Petitioner asserts (1) ineffective assistance of trial counsel; (2) prosecutorial
misconduct; (3) newly discovered evidence through DNA tests; and (4) actual innocence. For
the reasons set forth below, the petition is denied.

I.

Background
The evidence at trial established that on October 12, 1984, the victims - Zina Kogan and

her twelve-year-old son, Edward Kogan - were stabbed to death with two types of knives and
that Zina Kogan was also strangled. (Resp. Aff. Ex. Bl (Trial Transcript ("Tr.") 133-37).) On
the evening of the murders, Abraham Schwartman, Zina Kogan's father, had been in his
daughter's apartment visiting with her and left the apartment at approximately 6 p.m. (Tr.20.)
Shortly after Mr. Schwartzman left his daughter's apartment, neighbors below Zina Kogan's
apartment heard excessive noise and called Mr. Schwartzman, who returned within 10 minutes to
his daughter's apartment. (Id.) Because the door was locked, he entered his daughter's
apartment from the window of a vacant apartment next door. (Id) Mr. Schwartzman found Zina
Kogan lying on the floor. (Id) At around 6:15 p.m., Officer Cavallaro was called to the
apartment and found Zina Kogan's body face down and Edward Kogan's body in his room. (Tr.
23-24.)
Nearly a year later, on separate dates in early October 1985, Petitioner and his codefendant, David Diaz ("David") (no relation to Petitioner), both eighteen-years-old, were
questioned by Detectives Powell and Flaherty after police were contacted with information
implicating Petitioner and David in the Kogan murders. (Tr. 155-56, 172-75, 191-92,205.)
Both Petitioner and David were advised of their Miranda rights and initially denied any
involvement in the murders. (Tr. 39-40, 86-88, 100-01.)
Following a polygraph test and several hours of questioning, Petitioner agreed to make a
statement. (Tr. 103.) After notifying Petitioner of his Miranda rights, Assistant District
Attorney Pasquale D'Orsi questioned Petitioner about the murders on videotape. (See Tr. 140-

2

45; Resp. Aff. Ex. F (Videotaped Statement Transcript ("Video Tr.")); Resp. Aff. Exs. D & E
(videotaped statements transferred to digital video discs).)l
Petitioner stated that he and David planned to rob the Kogan apartment and that he was
armed with a pocket knife and that David had a dagger. (Video Tr. 1-4; Tr. 142-43.) Petitioner
and David had both worked for the husband and father of the murder victims, Alex Kogan, and
knew where the Kogans lived and that they kept money in their home. (Video Tr. 4; Tr. 38,44,
174, 189.) Petitioner stated that they knocked on the door and that David told Zina Kogan that
they were sent by her husband to do some repairs. (Video Tr. 6.) Zina Kogan let them in and
tried to contact her husband but could not reach him. (/d) Petitioner stated that he was surprised
when David then went behind Zina Kogan and stabbed her repeatedly. (/d at 8.) Petitioner then
stated that David went to the boy's room and stabbed him too. (Id at 9.)
Petitioner further stated that David did all the stabbing of the victims and only admitted
to choking Zina Kogan with a telephone cord because she was making noises and he was afraid
that she would identify them to the neighbors knocking on the door. (Video Tr.

lo.i

Petitioner stated that David found a gun but that they did not have time to take anything
else since neighbors had started knocking on the door. (Id at 9.) Petitioner and David left
Prior to Petitioner's trial, the court held a suppression hearing pursuant to People v.
Huntley, 15 N.Y.2d 72, 78 (1965) to determine the voluntariness of Petitioner's statement.
(Resp. Aff. Ex. Al (Huntley Tr. 1-62).) Petitioner argued that his confession should be
suppressed because it was given under duress based on the length of time he was in police
custody and the nature of the interrogations. (Huntley Tr. 66.) The trial court denied Petitioner's
motion to suppress. (Huntley Tr. 62.)
1

Alternatively, David stated that Petitioner also participated in the stabbing of the
victims. (See Video Tr. 4.) At trial, David testified that Detectives Powell and Flaherty
threatened to arrest his family and he made the statement to prevent their arrest. (Tr. 160-61.)
David also testified that he was fed information by the detectives and made up parts of the
statement. (Tr. 165-169.)
2

3

through the window and ran down the fire escape. (Id. at 10.) Once home, Petitioner took off
his clothes and threw them in the garbage along with the knife. (Id. at 11.) Petitioner stated that
David took the gun to his grandmother's home where it was later discarded by David's
stepfather. (Id.) The videotaped statements of Petitioner and his co-defendant were played for
the jury. (Tr. 143, 149.)
At trial, Petitioner took the stand and testified that he was taken into custody at 10 a.m.
on October 4, 1984, and that he denied any involvement in the Kogan murders for four hours.
(Tr. 175-76, 178.) Petitioner further testified that the detectives berated him, yelled at him and
threatened to hit him ifhe did not talk. (Tr. 177-78, 183.) Similar to David, Petitioner testified
that the detectives fed him information about the crime (Tr. 178-79, 184-187) and that neither
the statement he gave to police nor the videotaped statement to the Assistant District Attorney
was true. (Tr. 186-88.) Petitioner denied any involvement in the murders (Tr. 187-88) and
denied telling his friends that he had participated in the Kogan murders. (Tr. 192-95.) Petitioner
testified that he confessed only after being told that he had failed the polygraph test, that David
was implicating him, and that the detective administering the polygraph test, Detective Ponzi,
said that he would get "one to three" ifhe confessed and put all the blame on David. (Tr.200,
203-04.) The jury found Petitioner and David guilty of four counts of murder (two counts of
murder in the second degree and two counts of felony murder) and each received 50-years-to-life
sentences. (Tr. 327; Resp. Aff. Ex. C (Sentencing Transcript 7, 10).)
Petitioner appealed the conviction alleging that (1) he was denied due process when the
trial court failed to instruct the jury not to consider his co-defendant's confession as evidence of
Petitioner's guilt; (2) the prosecutor's summation was prejudicial; (3) the trial court's

4

instructions regarding the burglary charge were erroneous; and (4) the consecutive sentences
were excessive and harsh. The Appellate Division rejected Petitioner's claims regarding the jury
instructions and the summation as unpreserved, found that his sentence did not warrant a
reduction and affirmed his conviction. People v. Diaz, 544 N.Y.S.2d 500 (App. Div. 1989). On
October 26, 1989, the Court of Appeals denied leave to appeal. People v. Diaz, 74 N.Y.2d 895
(1989).
On February 28, 2006, Petitioner filed a post-conviction motion pursuant to N.Y.
Criminal Procedure Law § 440 ("440 motion") seeking an order directing DNA testing on
evidence from the crime scene and to vacate his sentence or to modify his sentence based on (l )
ineffective assistance of counsel; (2) prosecutorial misconduct; and (3) newly discovered
evidence. (Pet. 4; Resp. Aff. Ex. J (state court 440 motion).) In its opposition papers, the People
noted that many of Petitioner's claims were based on the trial record, and thus, they were
procedurally barred. (Resp. Aff. Ex. K (People's Memorandum of Law Opposing 440 motion 15).) In his reply papers, Petitioner claimed he was actually innocent in order to defeat the
procedural bar rule. (Pet. Ex. C (Aff. in Support of 440 motion 15-16).) On August 27,2007,
the trial court denied Petitioner;s 440 motion for DNA testing and to vacate or modify
Petitioner's conviction. (Resp. Aff. Ex. L (Judge Reichbach's Decision and Order).) The trial
court found that (1) the crime scene evidence was no longer available for testing, (2) the "vast
majority of [Petitioner's] claims [were] based on the record" and therefore barred from review,
(3) Petitioner failed to show ineffective assistance of counsel, and (4) the sentence imposed was
"not illegal or otherwise invalid." (/d) On December 24, 2007, the Appellate Division denied
leave to appeal (Pet. 6-7, Ex. C (Appellate Division Decision).) On February 21, 2008, May 19,

5

2008, and September 9,2008, the Appellate Division denied Petitioner's repeated motions for
reargument. (Pet. Ex. C (Appellate Division Decisions).) On September 23,2008, Petitioner
filed the instant petition.

II.

3

Discussion
a. Standard of Review
Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty

Act of 1996 ("AEDPA"), an application for a writ of habeas corpus by a person in custody
pursuant to a state court judgment may only be brought on the grounds that his or her custody is
"in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
A petitioner is required to show that the state court decision, having been adjudicated on the
merits, is either "contrary to, or involved an unreasonable application of, clearly established
Federal law" or "based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding." 28 U.S.C. § 2254(d); Lafler v. Cooper, 566 U.S.-,
- , 132 S. Ct. 1376, 1390 (2012).
For the purposes of federal habeas review, "clearly established law" is defined as "the
holdings, as opposed to dicta, of [the Supreme] Court's decisions as of the time of the relevant
state-court decision." Williams v. Taylor, 529 U.S. 362,412 (2000). A state court decision is
"contrary to," or an "unreasonable application of," clearly established law if the decision (1) is
contrary to Supreme Court precedent on a question of law; (2) arrives at a conclusion different
In 1994, Petitioner's co-defendant David Diaz filed a timely petition for a writ of habeas
corpus challenging his conviction. Diaz v. Senkowski, No. 94 CV 0392 (CPS) (E.D.N.Y. filed
Jan. 27, 1994). By order dated September 14, 1994, the Court denied David's habeas petition.
The United States Court of Appeals for the Second Circuit affirmed the Court's decision finding
that, inter alia, the state record supported that the confession was voluntary. Diaz v. Senkowski,
76 F.3d 61, 65 (2d Cir. 1996).
3

6

than that reached by the Supreme Court on "materially indistinguishable" facts; or (3) identifies
the correct governing legal rule, but unreasonably applies it to the facts of the petitioner's case.

Id. at 412-13; see also Harrington v. Richter, 562 U.S. - , - , 131 S. Ct. 770, 785 (2011)
(outlining the relevant factors). In order to establish that a state court decision is an unreasonable
application, the state court decision must be "more than incorrect or erroneous." Lockyer v.

Andrade, 538 U.S. 63, 75 (2003); see also Portalatin v. Graham, 624 F.3d 69, 79 (2d Cir. 2010)
("If none of these conditions is met, even if the federal court would have reached a different
conclusion on direct review, the petition must be denied."). The decision must be "objectively
unreasonable." Andrade, 538 U.S. at 75. In addition, factual determinations made by the state
court are presumed to be correct, and the petitioner bears the burden of rebutting the presumption
of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

b. Statute of Limitations
Before proceeding to the merits of the instant petition, the Court must consider whether
the petition was timely-filed. With the passage of the AEDPA on April 24, 1996, Congress set a
one-year statute of limitations for the filing of a petition for a writ of habeas corpus by a person
in custody pursuant to a state court conviction. 28 U.S.C. § 2244(d)(I). The one-year period
runs from the date on which one of the following four events occurs, whichever is latest:
(A) the date on which the judgment became final by the conclusion
of direct review or the expiration of the time for seeking such
review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or laws of
the United States is removed, if the applicant was prevented from
filing by such state action;

7

(C) the date on which the constitutional right asserte~ was initially
recognized by the Supreme Court and made retroactively
applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim?r claims
presented could have been discovered through the exerCise of due
diligence.
28 U.S.C. § 2244(d)(1)(A)-(D).4 Under subsection (A), the instant petition is untimely. A
conviction is final upon expiration of the 90-day period for seeking a writ of certiorari; thus,
Petitioner's conviction became final on January 24, 1990,90 days after October 26, 1989, the
date the Court of Appeals denied leave to appeal. Saunders v. Senkowski, 587 F.3d 543,548-49
(2d Cir. 2009) ("The AEDPA one-year statute of limitations begins to run ... on the date on
which [petitioner']s state conviction became final."); Williams v. Artuz, 237 F.3d 147, 150-51
(2d Cir. 2001) ('''[D]irect review,' as used in Section 2244(d)(I)(A), includes direct review by
the United States Supreme Court via writ of certiorari, and ... the limitations period for state

4 Petitioner does not argue - and a review of the record does not support - that
subsections (B)-(D) apply. To the extent Petitioner argues that he has newly discovered
evidence so that subsection (D) would apply, the Court finds no merit to that claim. Petitioner's
"new evidence" is not new, in that it was not newly discovered and was discoverable at his trial.
See Rivas v. Fischer, 687 F.3d 514, 535 (2d Cir. 2012) (The district court's function is to
"determine when the facts underlying the claim were known, or could with due diligence have
been discovered."). Nowhere does Petitioner argue that the prosecution failed to turn over these
police reports to his attorney in violation of Brady v. Maryland, 373 U.S. 83 (1963); instead,
Petitioner argues that his attorney did not use them in his defense. (See Pet'r Reply 10.)
Petitioner's argument that his defense attorney did not utilize information from the police reports
does not render these reports "new evidence." See Rivas, 687 F.3d at 535-38 (Information that
was discovered during trial was not newly discovered for the purposes of § 2244(d)(1)(D)); see
also Taylor v. Lantz, No. 07-CV-1915, 2008 WL 4793726, at *2-3 (D.Conn. Oct. 28,2008)
(Evidence in existence at the time of the petitioner's plea was not "new evidence"); Escobar v.
Miller, No. 04-CV-169, 2006 WL 2239080, at *4 (E.D.N.Y. Aug. 4,2006) ("[T]he evidence ...
was available to both petitioner and his former counsel in advance of trial, and thus, could not be
considered 'new' by this court.").
8

prisoners therefore begins to run only after the denial of certiorari or the expiration of time for
seeking certiorari.").
Because Petitioner's conviction became final prior to the effective date of the AEDPA, he
was entitled to a one-year grace period in which to file his habeas corpus petition, i.e., until April
24,1997. See Woodv. Milyard, 566 U.S. -,-,132 S.Ct. 1826, 1831 (2012) ("For a prisoner

whose judgment became final before AEDPA was enacted, the one-year limitations period runs
from the AEDPA's effective date: April 24, 1996."); Ross v. Artuz, 150 F.3d 97, 103 (2d Cir.
1998) ("We conclude that, in light of the importance of the subject matter of habeas petitions and
§ 2255 motions, the grace period should be clear; and in light of Congress's selection of one year
as the limitations period, we conclude that prisoners should have been accorded a period of one
year after the effective date of AEDPA in which to file a first § 2254 petition or a first § 2255
motion."). Instead, this petition dated September 23, 2008,5 was filed more than 11 years after
the grace period had already expired. Therefore, unless Petitioner can show that the one-year
grace period should be tolled, the petition is barred by 28 U.S.C. § 2244(d) as untimely.
c. Tolling

In calculating the one-year limitations period, "the time during which a properly filed
application for State post-conviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted." 28 U.S.C. § 2244(d)(2). The postconviction proceeding, however, does not start the one-year grace period to run anew. Section

5The Court applies the prison mailbox rule instead of the date the petition was received
by the Court. See Houston v. Lack, 487 U.S. 266, 276 (1988) (Prisoner's pro se papers were
filed at the "time petitioner delivered it to the prison authorities for forwarding to the court
clerk[.]"); Noble v. Kelly, 246 F.3d 93,97 (2d Cir. 2001) (applying prison mailbox rule to federal
habeas corpus petitions).
9

2244(d)(2) merely excludes the time a post-conviction motion is under submission from the
calculation ofthe one-year period oflimitation. Smith v. McGinnis, 208 F.3d 13, 16 (2d Cir.

2000) (per curiam). Because Petitioner filed his 440 motion on February 28,2006, well after the
one year grace period had expired on April 24, 1997, he cannot avail himself of statutory tolling.

See Doe v. Menefee, 391 F.3d 147, 154 (2d Cir. 2004) (A state collateral proceeding commenced
after the statute of limitations has run does not reset the limitations period); see also Parker v.

Hufford HIIF.C.I Schuylkill, No. 11-CV-3609, 2011 WL 3299073, at *1 (E.D.N.Y. July 29,
2011) ("Although a valid collateral attack on a conviction will toll time where a habeas petition
has already been filed, commencing such a proceeding does not restart the clock."); Moore v.

Cook, 09-CV-2381, 2010 WL 2680328, at *2 (E.D.N.Y. June 30, 2010) ("Petitioner's second
§ 440 motion, pending from July 11,2001 through May 8, 2008, similarly had no effect on the
timeliness of petitioner's motion. Although a valid collateral appeal will toll time where a habeas
petition has already been filed, commencing a collateral review proceeding does not "reset" the
clock."). Therefore, Petitioner's 440 motion filed on February 28,2006, almost nine years after
the grace period expired, does not render this petition timely-filed on September 23,2008.
The limitations period may also be equitably tolled, but only if petitioner "shows (1) that
he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in
his way and prevented timely filing." Holland v. Florida, 560 U.S. -,-, 130 S.Ct. 2549,2562
(2010) (internal quotation omitted); Rivas v. Fischer, 687 F.3d 514,538 (2d Cir. 2012) (quoting

Holland for the equitable tolling standard); Dillon v. Conway, 642 F.3d 358, 362 (2d Cir. 2011)
(same). Here, Petitioner does not seek equitable tolling; rather Petitioner relies on the actual
innocence exception to the statute of limitations. See Rivas, 687 F.3d at 539 (distinguishing

10

between equitable tolling and actual innocence exception to AEDPA's statute oflimitations).
Therefore, the Court will address Petitioner's actual innocence claim.
d. Actual Innocence

Petitioner raises "actual innocence" as a reason for the Court to consider the merits of his
habeas petition, despite the fact that it is outside of the statute of limitations. See Rivas, 687 F .3d
at 539 ("[A] habeas petitioner 'may use his claim of actual innocence as a 'gateway,' or a means
of excusing his' ... untimely filing under AEDP A's limitation period[. ]" (citations omitted)).
Petitioner asserts that
I fall under the actual innocence exception to the procedural bar
rule pursuant to Schlup v. Delo, 513 U.S. 298 (1995) and House v.
Bell, 126 S.Ct. 2064 (2006). Since, in light of new evidence I
came across which was never presented at trial, it is more likely
than not that no reasonable juror would have found me guilty
beyond a reasonable doubt.
My constitutional claims are based on my contention that, due to
the utter ineffectiveness of my trial counsel and the prosecutor's
knowing use of false evidence to secure my conviction, I was
denied the full panoply of protections afforded to criminal
defendants by the Constitution.
Therefore since I meet the gateway standard of Schlup and House,
I am entitled to an evidentiary hearing so that I may argue the
merits of my claims and so that the court can conduct a miscarriage
of justice inquiry into my case.
(Pet. 14.) Specifically, Petitioner's new evidence consists of police reports and a pre-sentence
report. (Pet'r Af£ 19-21; Pet. Exs. A-C.) Petitioner alleges that he only discovered this
"information I never knew about and which had never been presented to the jury by my lawyer"
sometime in May 2005 upon receipt of his pre-sentence report. (Pet. Ex. C (Aff. in Support of
Appl. for a Certificate Granting Leave to Appeal).) Respondent argues that Petitioner is time11

barred and that he has failed to demonstrate that he is entitled to the benefit ofthe actual
innocence exception. (Resp. Aff. in Opp. 1-12.)
"[A] claim of actual innocence must be both 'credible' and 'compelling.'" Rivas, 687
F.3d at 541 (citing House v. Bell, 547 U.S. 518, 521, 538 (2006)); see also Schlup v. Delo, 513
U.S. 298, 324 (1995) (describing what makes a claim credible). A credible claim of actual
innocence consists of "new reliable evidence - whether it be exculpatory scientific evidence,
trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial."

Schlup, 513 U.S. at 324; see also House, 547 U.S. at 537 (citing the Schlup credibility standard);
Rivas, 687 F.3d at 541 (same). "For the claim to be 'compelling,' the petitioner must
demonstrate that 'more likely than not, in light of the new evidence, no reasonable juror would
find him guilty beyond a reasonable doubt - or to remove the double negative, that more likely
than not any reasonable juror would have reasonable doubt." Rivas, 687 F. 3d at 541 (quoting

House, 547 U.S. at 538). The district court must "'consider all the evidence, old and new,
incriminating and exculpatory,' and, viewing the record as a whole, ... 'make a probabilistic
determination about what reasonable, properly instructed jurors would do.'" Rivas, 687 F.3d at
542 (quoting House, 547 U.S. at 538).
In support of his actual innocence claim, Petitioner argues, inter alia, that his confession
was false and coerced by police, there was no physical evidence connecting him to the murders,
that prosecutors committed misconduct by, inter alia, using false evidence and information, and
his defense attorney was ineffective by, inter alia, failing to cross-examine witnesses, failing to
present witnesses on his behalf and failing to use information from police reports at trial. (See

generally Pet'r Aff. 1-34.)
12

Petitioner fails to set forth a claim of actual innocence that is either credible or
compelling. Despite his argument to the contrary, Petitioner has not asserted a credible actual
innocence claim because he has not presented new reliable evidence. The "new evidence"
Petitioner relies on are police reports and a pre-sentence report which stated that there were
rumors that Zina Kogan's husband owed money to the Russian Mafia and had remarried and
moved away shortly after the murders occurred. (See Pet'r Aff. 2-3.) Petitioner does not rely on
or present any "exculpatory scientific evidence, [6] trustworthy eyewitness accounts, or critical
physical evidence," that was not presented at trial. Schlup, 513 U.S. at 324; see also Rivas, 687
F.3d at 546--47 (finding that the petitioner had "a close case" that only passed the Schlup
standard because the petitioner was able to present reliable scientific expert testimony not
presented to the jury and the Second Circuit "would not expect a lesser showing of actual
innocence to satisfy the Schlup standard"); Menefee, 391 F.3d at 161 (There is a "limited ...
type of evidence on which an actual innocence claim may be based" "in order to take advantage
of the gateway[,]" which includes "exculpatory scientific evidence, trustworthy eyewitness
accounts, or critical physical evidence-that was not presented at trial." (citing Schlup, 513 U.S. at
324) (internal quotation marks omitted)).
Assuming, arguendo, that the police reports could be considered new evidence,
Petitioner's claim of actual innocence is not compelling as he fails to show that it is "more likely
than not that no reasonable juror would have convicted him." Schlup, 513 U.S. at 327. The

6 As

to Petitioner's request for DNA testing, the state court denied this request finding
that Petitioner failed to make a timely request and that the evidence was no longer available
because it had either been lost or destroyed. (Resp. Aff. Ex. L (Judge Reichbach's Decision and
Order).) Moreover, the prosecution did not introduce any physical evidence at trial which would
require DNA testing or would result in "exculpatory scientific evidence."
l3

Court has reviewed the police report excerpts submitted by Petitioner, along with the trial record
and the transcribed video confessions of Petitioner and his co-defendant, and does not fmd the
police report to present any reliable evidence of Petitioner's innocence. The one allegation in the
police report that Petitioner relies on is references to "rumors" that the victims' husband/father
may have owed money to the Russian Mafia. (Pet. Ex. B.) The police report also states that
police followed up on all leads on the case. (Id) The police reports cannot be said to be wholly
inconsistent with the confessions as to discredit the confessions.
Petitioner's claim that perhaps Alex Kogan was the intended victim because police
received information about his purported debts to the Russian Mafia, or in the alternative, that
Alex Kogan paid others to kill his wife and child so that he could remarry is merely conjecture
and not proof of Petitioner's innocence. (Pet'r Aff.) Pure conjecture alone is not sufficient to
meet the actual innocence standard. See, e.g., Rivas, 687 F.3d at 546 (Police failure to pursue
other leads in the investigation did "not compellingly point to Rivas's innocence[.]"); Bower v.

Walsh, 703 F. Supp. 2d 204,228 (E.D.N.Y. 2010) ("The fatal flaw in [the petitioner's] argument
is that he offers no direct evidence pointing to any other person's involvement in the crimes for
which he was convicted .... Speculation that another person committed crimes for which a
petitioner was convicted is insufficient to establish innocence, especially in light of evidence to
the contrary.").
A review of the record demonstrates that the trial centered on Petitioner's videotaped
confession and that of his co-defendant both admitting to involvement in the Kogan murders.
Both confessions were played for the jury and both defendants testified at trial. Although
Petitioner testified that this statement was false and a product of coercion by police (Tr. 182-

14

188) - and his attorney questioned the police as to their tactics in obtaining the statement (Tr.
100--04, 223-25) - the jury found Petitioner and his co-defendant guilty of the murders.
While Petitioner makes a compelling argument that his attorney failed to utilize
information from the police reports and catalogues a litany of purported errors - inconsistencies
and failures on the part of his attorney and the prosecution - the district court is not permitted to
make an independent judgment of whether reasonable doubt exists, "but instead requires a
probabilistic determination about what reasonable, properly instructed jurors would do." House,
547 U.S. at 538. The jury had the opportunity to consider the various inconsistencies between
the statements provided by Petitioner, his co-defendant, and the police officers, and they also had
the opportunity to weigh Petitioner's credibility and the credibility of the police officers;
nevertheless, they rendered a guilty verdict. See, e.g., Madison v. Hulihan, No. 09-CV-337,
2012 WL 1004780, at *6-7 (E.D.N.Y. Mar. 23, 2012) (finding that jury was aware of
inconsistent testimony but still found petitioner guilty); Brockington v. Marshal, No. 07-CV0286,2011 WL 4424429, at *5 (W.D.N.Y. Sept. 21, 2011) (on remand, district court found that
petitioner's new evidence - consisting of the medical examiner's case narrative - failed to
demonstrate that it was more likely than not that a reasonable juror would have found him guilty
beyond a reasonable doubt); Rosario v. Ercole, 582 F. Supp. 2d 541,559 (S.D.N.Y. 2008)
(Where the trial is "a credibility contest" between the parties' dueling evidence, the Court could
not "conclude that no reasonable juror would have been persuaded by the prosecution's case[.]").
Given that the jury was cognizant of the discrepancies in the confessions of Petitioner and his codefendant and their trial testimony, and they could weigh their demeanor and credibility as they

15

both testified at trial, Petitioner has not shown that a reasonable juror would not have convicted
him of the murders based on his purported new evidence.
Petitioner's reliailce on Schlup v. Delo, 513 U.S. 298 (1995) and House v. Bell, 547 U.S.
518 (2006) to support his actual innocence claim based on new evidence is misplaced. Petitioner
argues that he "fall [s] under the actual innocence exception to the procedural bar rule pursuant to

Schlup . .. and House. . .. Since, in light of new evidence I came across which was never
presented at trial, it is more likely than not that no reasonable juror would have found me guilty
beyond a reasonable doubt." (Pet. 14.) In Schlup, a black inmate was stabbed to death by a
white inmate and Schlup was found guilty of the inmate's murder. Schlup, 513 U.S. at 302-13.
The Supreme Court found that eyewitness statements that Schlup was not involved in the crime
and statements from corrections staffthat cast doubt on Schlup's guilt were sufficient to allow
his habeas petition to be considered on the merits. Id. at 331. In House, a woman was murdered
and left in an embankment and House, an acquaintance of the victim, was found guilty of the
murder. House, 547 U.S. at 52l. There were problems in the evidence presented and trial and
new evidence that implicated the victim's husband: specifically that blood found on Petitioner's
pants and presented at trial as belonging to someone other than Petitioner (possibly to the victim)
had been contaminated in the police lab and the semen found on the victim's clothing matched
the victim's husband and not Petitioner. Id. at 540-53. Thus, the Supreme Court found that
scientific evidence and other evidence directly implicating the victim's husband was sufficient to
allow House's habeas petition to proceed on the merits. Id. As discussed above, contrary to
Petitioner's repeated assertions, he does not present any new reliable evidence which would
support his claim that his case falls into the actual innocence exception and allow this Court to
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consider the merits of his claims challenging his judgment of conviction. Accordingly, the
petition must be dismissed as time-barred as Petitioner has failed to show a credible and
compelling claim of actual innocence.

III.

Conclusion
For the foregoing reasons, the petition for habeas corpus is denied as time-barred

pursuant to 28 U.S.C. § 2244(d)(1) and the Court will not issue a certificate of appealability. See
28 U.S.C. § 2253(c)(2). Petitioner's request for appointment of counsel is denied. The Court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order
would not be taken in good faith and therefore in forma pauperis status is denied for the purpose
of an appeal. Coppedge v. United States, 369 U.S. 438, 444--45 (1962). The Clerk of Court is
directed to close the case.

SO ORDERED.
Dated: September 24,2012
Brooklyn, New York

S/Judge Brodie
.----~-r~--~~--------

MA

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RODlE