Locurto v. United States of America

Filing 109

MEMORANDUM & ORDER re 61 Motion for Discovery. Because Petitioner has not shown "good cause" for his discovery request, the Discovery Motion 61 is DENIED. So Ordered by Judge Nicholas G. Garaufis on 11/30/2016. (Lee, Tiffeny)

o/^

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

STEPHEN LOCURTO,

Petitioner,

MEMORANDUM & ORDER

lO-CV-4589(NGG)

-againstUNITED STATES OF AMERICA,

Respondent.
-X

NICHOLAS G. GARAUFIS,United States District Judge.

On October 4,2010, Petitioner Stephen LoCurto filed a motion under 28 U.S.C. § 2255
to vacate, set aside or correct his sentence. (Mot. to Vacate, Set Aside or Correct Sent.("Pet.")

(Dkt. I).) Petitioner amended his petition on August 5,2014(the "Amended Petition"), to
include a claim that the Government suppressed impeachment information about witness Frank
Lino in violation of Bradv v. Maryland. 373 U.S. 83(1963), Gielio v. United States. 405 U.S.

150(1972), and Napue v. Illinois. 360 U.S. 264(1959). (Am. Mot. to Vacate, Set Aside or
Correct Sent.("Am. Pet.")(Dkt. 62);

Mem.in Support of Am.Pet.(Dkt. 63).) Petitioner

asserts that the Government failed to disclose information concerning Mr. Lino's involvement in
the murder of Wilfred "Willie Boy" Johnson("Wilfred Johnson") and heroin dealing, and argues
that there is a reasonable probability that had this information been disclosed to the defense, the

outcome of Petitioner's trial would have been different.^ (Am.Pet. ^ 43.) On August 5, 2014,
Petitioner moved for discovery ofthe following documents (the "Discovery Motion"):

[A]ll surveillance logs, tape recordings, transcripts, summaries,
affidavits, reports, FBI 302's, DEA investigative reports, ATF
investigative reports and all other documents, writings, memoranda
and reports containing information on the murder of Wilfred
'Willie Boy' Johnson on August 29,1988,for the period from 90

'
The court reserves decision as to whether Petitioner is procedurally barred from raising this claim.
1

days before the murder until 90 days after the murder, including all
such information on the involvement ofFrank Lino in the murder

and all surveillance logs, tape recordings, transcripts, summaries,
affidavits, reports, FBI 302's, DBA investigative reports, ATF
investigative reports and all other documents, writings, memoranda
and reports containing information on Frank Lino's involvement in
heroin dealing fi-om 1960 to June 2006...[and] records of all of
the information disclosed about Frank Lino from confidential

informants and detailed in the affidavits of George Webb and
Frank Hunt....

(Mot. for Discovery(Dkt. 61).) For the reasons set forth herein. Petitioner's Discovery Motion
is DENIED.
1.

Discussion

"A habeas petitioner, unlike the usual civil litigant in federal court, is not entitled to
discovery as a matter of ordinary course." Bracv v. Gramlev,520 U.S. 899,904(1997). For the
court to grant the Discovery Motion,Petitioner must first demonstrate "good cause" to request

the materials by making "specific allegations ...[showing] reason to believe that...[he] may,
ifthe facts are fully developed, be able to demonstrate that he is ... entitled to relief." Id.
at 908-09; see also Rules Governing Section 2255 Proceedings, Rule 6(a). The court determines
that Petitioner has failed to satisfy this burden with respect to his Bradv/Giglio and Napue
claims.

A. Bradv/Giglio Claim

To prevail on a Bradv/Giglio claim, a petitioner must demonstrate:(1)that the evidence
at issue is favorable to him,either because it is exculpatory or impeaching;(2)that the

government suppressed the evidence, either willfully or inadvertently; and(3)that the evidence
was material to the defense. Strickler v. Greene. 527 U.S. 263,281 (1999);s^ Giglio. 405 U.S.

at 154(holding that the rule stated in Bradv applies to evidence underniining witness credibility).
Even ifthe facts were fully developed and Petitioner could demonstrate that the first two

prongs ofthe Bradv/Giglio test were met. Petitioner will be unable able to establish the
2

materiality ofthe evidence at issue. Cf, United States v. Avellino. 136 F.Sd 249,256(2d
Cir. 1998)("Ifthe government has failed to disclose to the defendant evidence favorable to him,

reliefis warranted only ifthe evidence was 'material.'"(internal citations omitted)). "[EJvidence
is material only if there is a reasonable probability that, had the evidence been disclosed to the
defense, the result ofthe proceeding would have been different." United States v. Baglev. 473
U.S. 667,682(1985). The Second Circuit has repeatedly held that "[n]ew impeachment

evidence is not material, and thus a new trial is not required when the suppressed impeachment
evidence merely furnishes an additional basis on which to impeach a witness whose credibility
has already been shown to be questionable." United States v. Parkes.497 F.3d 220,233(2d
Cir. 2007)(internal quotation marks and citations omitted); see, e.g. United States v. Basciano.
384 F. App'x 28, 31 (2d Cir. 2010)(summary order); Avellino. 136 F.3d at 256-57.
Here, evidence concerning Mr. Lino's alleged heroin dealing and his involvement in the

murder of Wilfred Johnson would merely provide additional bases on which to impeach Mr.
Lino and to undermine his credibility, which was already attacked at Petitioner's trial. Mr. Lino

testified at trial that he had committed six murders and one attempted murder,among other
crimes.(Tr. of Trial Proceeding in United States v. Locurto. 03-CR-1382(NGG)
("Tr.") at
2036:15-2031:3, 2044:1-23.) Petitioner's trial counsel, Harry Batchelder, vigorously cross-

examined Mr. Lino about these murders as well as Mr. Lino's prior drug crimes and loansharking activities. (Id. at 2205:1-2231:11, 2352:24-2353:1, 2367:3-6.)

Petitioner argues that the murder of Wilfired Johnson was"much more significant than
the other murders that Lino admitted to [in] his testimony in the LoCurto trial" because Wilfired
Johnson "was an FBI informant at the time he was killed." (Pet'r's Reply Mem.in Supp. of
Discovery Mots.("Reply Br.")(Dkt. 108)at 26.) Petitioner maintains that"ifthe jury had

known that Lino was involved in the intentional killing of an important FBI informant, this
3

would have seriously damaged his credibility as a witness," and asserts that "[t]his is not a
situation where 'just another murder' is attributed to the witness." (Id. at 27, 30.) The court
finds this argument unconvincing. There is no basis to conclude that the jury would have

considered the murder of an FBI informant to be substantively different than the killing of any
other individual—or,indeed, of six other individuals. Mr. Lino's credibility was seriously

attacked during Petitioner's trial. His involvement in multiple murders was front and center for
the jury's consideration. The court, therefore, determines that the new impeachment evidence is
cumulative and cannot be considered "material" under controlling Second Circuit case law. See,
e.g., Basciano. 384 F. App'x at 31: Parkes. 497 F.3d at 233; Avellino. 136 F.3d at 256-57.
B. Napue Claim

A conviction must be set aside if:(1)it was obtained using perjured testimony;(2)the

prosecution knew, or should have known, ofthe peijury; and(3)"there is any reasonable
likelihood that the false testimony could have affected the judgment ofthe jury." United States
V. Agurs.427 U.S. 97,103(1976)(citing Napue). Petitioner argues that Mr. Lino testified
falsely by failing to disclose his involvement in the murder of Wilfred Johnson and that the
Government"must have known about his involvement" in the murder, yet intentionally

suppressed this information. (See Reply Br. at 27.) Even assuming arguendo that these
allegations are true, the court is unpersuaded that there is a "reasonable likelihood that the false
testimony could have affected the judgment ofthe jury." Agurs,427 U.S. at 103.
The allegedly false testimony at issue concerns a collateral issue (i.e. Mr. Lino's criminal
history) and "d[oes] not refute any of[Mr. Lino's] testimony against" Petitioner. United States
V. Reves,49 F.3d 63,68(2d Cir. 1995). There is therefore no reason to think that "knowledge of
th[e]... impeaching [facts], in addition to the numerous others used on cross-examination,
would persuade a fact-finder to disbelieve [Mr. Lino's] testimony against [Petitioner]." Ostrer v.
4

United States. 577 F.2d 782,787(2d Cir. 1978);

United States v. White. 972 F.2d 16, 22(2d

Cir. 1992)(holding that newly discovered evidence that witness may have lied about his drug use

"would have been merely the sort ofcumulative impeachment material that is routinely held
insufficient to warrant a new trial").

Moreover, even ifthe jurors had known that Mr. Lino omitted reference in his testimony
to one of his many prior crimes,the court finds it improbable that this would have created
sufficient doubt in the jurors' minds to affect the result ofPetitioner's trial. As the Second
Circuit has explained:
pSTjew impeachment evidence may satisfy the 'reasonable
likelihood' standard where a conviction depends on the testimony
of a single government witness, or on a witness whose credibility
was not attacked on cross-examination ....But where

independent evidence supports a defendant's conviction,the
subsequent discovery that a witness's testimony at trial was
pequred will not warrant a new trial.
United States v. Wong.78 F.3d 73,82(2d Cir. 1996)(internal citation omitted). Here, there is

ample evidence supporting Petitioner's conviction ofracketeering conspiracy, separate and apart
from Mr. Lino's testimony. In response to special interrogatories, the jury found that the
Government proved all three racketeering acts alleged against Petitioner:(1)the murder of
Joseph Platia;(2)the marijuana distribution conspiracy; and(3)the ecstasy distribution
conspiracy. (See Jury Verdict(Dkt. 914), United States v. Locurto.03-CV-1382(NGG).)
Several cooperating witnesses connected Petitioner to the killmg of Joseph Platia. (See, e.g, Tr.
at 346-47, 915-16.) Moreover,there was testimony thatjust after the murder occurred, police

officers stopped Petitioner near the murder scene and recovered a hot .38 caliber revolver from
his jacket pocket. (See id. at 736:9-738:12, 3178:6-11). Ballistics analysis showed that the gun
Petitioner possessed was the weapon used to kill Mr. Platia. (See id at 851:5-13). As for his
narcotics trafficking, Petitioner pleaded guilty to conspiring to distribute marijuana(id
5

at 1192:18-1194:11)and ecstasy Qd at 2487:22-2490:13). In light ofthis powerful evidence of
guilt, the court finds that there is not a reasonable likelihood that Mr. Lino's alleged perjury on a
collateral issue would have affected the outcome ofPetitioner's trial. The court therefore holds

that Petitioner has not provided "specific allegations ...[showing] reason to believe that...[he]
may,ifthe facts are fully developed, be able to demonstrate that he is ... entitled to relief[under
NapueL" as is required for the court to grant the Discovery Motion.

Bracv. 520 U.S.

at 908-09.
II.

Conclusion

Because Petitioner has not shown "good cause" for his discovery request,
^Bracv,520
U.S. at 908-09, the Discovery Motion(Dkt. 61)is DENIED.
SO ORDERED.

s/Nicholas G. Garaufis
Dated: Brooklyn, New York
November 3o,2016

NICHOLAS G. GARAUFIS

United States District Judge