Basagoitia v. Smith

Filing 21

MEMORANDUM AND ORDER denying 15 Motion to Stay: Petitioner's motion for a stay is denied to the extent that he seeks to pursue a claim for prosecutorial misconduct due to the prosecution's alleged knowing use of false testimony despite petitioner's own contradictory statements prior to trial. Ordered by Chief Judge Carol Bagley Amon on 9/28/2011. c/m to pro se petitioner. (Fernandez, Erica)

F~lEO
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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JUAN BASGOITIA,
Bi"tOOI'(LYN

OFFICE.

Petitioner,
-againstNOT FOR PUBLICATION
MEMORANDUM & ORDER
09-CV-01768 (CBA)
JOSEPH T. SMITH,
Superintendent, Shawangunk
Correctional Facility,
Respondent.

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AMON, United States District Judge:
Petitioner Juan Basgoitia filed a pro se petition for a federal writ of habeas corpus on April
24, 2009. On October 8, 2009, petitioner filed a prose motion for a stay of his federal habeas
proceeding, stating his intention to file a motion in state court challenging his judgment of
conviction pursuant to New York Criminal Procedure Law§ 440.10. In that request, petitioner
stated that he had "received an affidavit from a co-defendant[,] David Robles" after filing the
instant habeas petition, and that "[t]hc substance of this affidavit refutes the trial testimony of the
Prosecution's key witness[,] Daniel Machuca." On September 14,2010, the Court issued a
Memorandum and Order denying petitioner's motion without prejudice because it failed to specify
the nature of the claim petitioner wished to pursue in state court. However, the Court also afforded
petitioner an additional opportunity to file any request. The Court directed the petitioner, should he
choose to re-file the request, to: (I) describe in detail the nature of the claim or claims he wishes to

pursue in state court; (2) shmv good cause for his failure to exhaust these claims prior to filing this
habeas action; and (3) explain why the new claims are not plainly meritless.
In a September 24, 201 0 letter, petitioner purports to respond to the Court's Order. The
letter explains that petitioner seeks to pursue a claim of prosecutorial misconduct. Specifically,
petitioner states that he, "'anticipates[] raising [a claim] that the [p]rosecution kn[e]w, or should
have known, that Daniel Machua's testimony was false because petitioner's oral and videotaped
statements conflicted about whether he thought that Robles and Machuca were going to 'beat up'
the Lavery brother[ s], and because petitioner did not admit to participating in an attempted murder
conspiracy or in any substantive crime pertaining to such a conspiracy." Petitioner further contends
that, "the [p]rosecution should have known, because of petitioner's oral and videotaped statements,
that Machuca's testimony that Robles subsequently told him that 'it' was 'up graded,' that
petitioner wanted to 'get rid of' the brothers by 'any means necessary,' and that they were now
going to kill the brothers, was false testimony."
In Rhines v. Weber, 544 U.S. 269, 277 (2005), the Supreme Court held that a district court
should only grant a petitioner's request to stay a federal habeas petition in "limited circumstances."
The Court noted that "[s]tay and abeyance, if employed too frequently, has the potential to
undermine [the] twin purposes" of the Anti-Terrorism and Effective Death Penalty Act of 1996
("AEDPA"), namely, the objectives of'·encouraging finality" and "streamlining federal habeas
proceedings." Id. Because "granting a stay effectively excuses a petitioner's failure to present his
claims first to the state courts," the Supreme Court held that a stay and abeyance of a mixed petition
is only appropriate where there is "good cause for the petitioner's failure to exhaust his claims first

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in state court," the uncxhausted claims are not "plainly meritless," and the prisoner has not engaged
in "abusive litigation tactics or intentional delay.,. Id. at 277-78.
Respondent argues that petitioner has not shown good cause for his failure to exhaust his
proposed claim prior to tiling the instant petition. The Court agrees. Petitioner argues that he had
good cause for failing to pursue the above described claim prior to filing the instant petition because
he did not receive the Robles affidavit until the end of September 2009. However, it is not clear
how such an at1idavit is relevant to petitioner's allegations ofprosecutorial misconduct. The claim
petitioner states that he now seeks to raise relates not to the Robles affidavit but to the prosecution's
alleged misconduct in failing to credit statements made by the petitioner prior to his trial.
Specifically, petitioner argues that the prosecution should have known that Machuca's testimony
was false due to petitioner's conflicting statements to the police and his refusal to incriminate
himself. Petitioner was aware of those statements and his refusal to incriminate himself at the time
of his trial and well before he filed the instant petition on April 24, 2009. Accordingly, the Court
finds that petitioner did not have good cause for failing to pursue his allegations of prosecutorial
misconduct prior to filing the instant petition.
Even if petitioner could show good cause, the proposed claim is plainly meritless. Where a
conviction is achieved with the aid of testimony that the prosecution knew or should have known to
be false, it "must be set aside if there is any reasonable likelihood that the false testimony could
have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976). A
successful challenge to a conviction based on the grounds of prosecutorial misconduct, therefore,
requires the defendant to show that"( I) there was false testimony, (2) the Government knew or
should have known that the testimony was false, and (3) there was 'any reasonable likelihood that

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the false testimony could have affected the judgment of the jury."' United States v. Helms ley, 985
F.2d 1202, 1205-06 (2d Cir. 1993) (quoting Agurs, 427 U.S. at 103). The government could not
have known that a witness's testimony was false based solely on the fact that such testimony
differed from petitioner's own statements to the police about his culpability. Likewise, petitioner's
inconsistent statements about his knowledge would not lead a prosecutor to doubt the veracity of an
accomplice witness. To the extent petitioner argues that the Robles affidavit proves that the
prosecution knew Machuca's testimony was false, such an affidavit cannot be used to demonstrate
the prosecution's knowledge. As petitioner states, the affidavit was not notarized until September
12, 2009, long after petitioner's trial and conviction.
Accordingly, petitioner's motion for a stay is denied to the extent that he seeks to pursue a
claim for prosecutorial misconduct due to the prosecution's alleged knowing use of false testimony
despite petitioner's ovm contradictory statements prior to trial.
SO ORDERED.
s/CBA

cARoL sAod:v AMBN

f

Chief United States District. udge
Dated: September 28,2011
Brooklyn, New York

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