Allah v. Cunningham
Filing
20
MEMORANDUM AND OPINION. For the reasons discussed in the annexed opinion, this petition for a writ of habeas corpus is dismissed in its entirety as time-barred. The Clerk of the Court is respectfully directed to enter judgment in favor of respondent , close this case, and serve a copy of this order on the pro se petitioner at his last known address. Pursuant to Fed. R. App. P. 22(b) and 28 U.S.C. § 2253(c)(2), a certificate of appealability will not issue because petitioner has not made a & quot;substantial showing" of a denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the United States Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253(c). Ordered by Judge Kiyo A. Matsumoto on 1/27/2016. (Jacobson, Jonathan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
INFINITE ALLAH,
NOT FOR PRINT OR
ELECTRONIC PUBLICATION
Petitioner,
MEMORANDUM & ORDER
13-CV-2805 (KAM) (LB)
-against-
ROBERT CUNNINGHAM,
Respondent.
-----------------------------------X
MATSUMOTO, UNITED STATES DISTRICT JUDGE:
Pro se petitioner Infinite Allah (“petitioner”) seeks a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
For the
reasons discussed below, the court concludes that the petition is
time-barred.
BACKGROUND
On September 27, 1993, 1 petitioner was convicted of
second-degree
murder
in
Kings
County
Supreme
sentenced to 20 years to life imprisonment.
Court
and
was
(ECF No. 1, Petition
for Writ of Habeas Corpus (“Pet.”) at ¶¶ 1, 3-5.)
On August 28,
1995, the Appellate Division affirmed petitioner’s conviction on
direct review.
People v. Allah, 631 N.Y.S.2d 248 (N.Y. App. Div.
1
Although petitioner states that he was convicted on September 27, 1992
(Pet. at ¶ 3), two reported appellate decisions confirm that he was
convicted a year later on September 27, 1993. See People v. Allah, 666
N.Y.S.2d 933 (N.Y. App. Div. 2d Dep’t 1998); People v. Allah, 631
N.Y.S.2d 248 (N.Y. App. Div. 2d Dep’t 1995).
1
2d Dep’t 1995).
On November 15, 1995, the New York Court of
Appeals denied petitioner’s request for leave to appeal.
v. Allah, 661 N.E.2d 1383 (N.Y. 1995).
People
Petitioner did not file a
petition for a writ of certiorari from the United States Supreme
Court.
(Pet. at ¶ 10.)
Petitioner
sought
occasions in state court.
post-conviction
relief
on
three
First, on May 18, 1995, with his direct
appeal still pending, petitioner filed a motion to vacate the
judgment pursuant to N.Y. Crim. Proc. Law § 440.10, which was
denied by the Kings County Supreme Court on September 12, 1995.
(Id. at ¶ 12.)
Second, on August 12, 1997, petitioner filed a
petition
writ
for
a
of
error
coram
nobis
(id.),
which
was
subsequently denied by the Appellate Division on January 12, 1998.
People v. Allah, 666 N.Y.S.2d 933 (N.Y. App. Div. 2d Dep’t 1998). 2
Third, petitioner filed a motion seeking forensic testing and
comparison of evidence pursuant to N.Y. Crim. Proc. Law § 440.10,
which was denied by the Kings County Supreme Court on June 21,
1999.
(Pet. at ¶ 12.)
2
This petition was lodged directly with the appellate court because
petitioner brought a claim of ineffective assistance of appellate
counsel. See Garcia v. Keane, 973 F. Supp. 364, 370 (S.D.N.Y. 1997)
(recognizing that “coram nobis review of ineffective assistance of
appellate counsel claims is in the appellate tribunal where the allegedly
deficient representation occurred” (internal quotation marks and
citation omitted)).
2
On May 9, 2013, petitioner filed the instant § 2254
habeas petition. 3
(Pet. at ¶ 1.)
In the petition, he challenges
his 1993 murder conviction and seeks release from custody on three
separate grounds: (1) ineffective assistance of trial counsel; (2)
the state court’s erroneous denial of forensic testing; and (3)
his
actual
innocence.
petitioner’s
claim
(See
was
id.
at
potentially
¶
13.)
barred
Recognizing
by
the
that
statute
of
limitations set forth in the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), the court ordered petitioner to
show cause why his petition should not be dismissed as time-barred.
(ECF
No.
3,
Order
to
Show
Cause
(“Show
Cause
Order”).)
Specifically, the court directed petitioner to provide (inter
alia): (1) a copy of a November 15, 2011 letter from trial counsel
(the “11/15/11 Letter”) purportedly containing new evidence that
serves as the factual predicate for his habeas petition; (2) an
3
Although the petition was received by the district court clerk on May
9, 2013, petitioner declared under penalty of perjury in the petition
itself that he delivered the document to prison authorities for mailing
on May 1, 2013. (Pet. at p. 6.) In the pro se habeas context, the date
the prisoner provides the document to prison officials for mailing —
rather than the date of receipt in a clerk’s office — is generally
considered the appropriate filing date.
See Adeline v. Stinson, 206
F.3d 249, 251 n.1 (2d Cir. 2000) (“When a prisoner is proceeding pro se,
as petitioner then was, federal courts generally consider his or her
petition for habeas corpus to have been filed as of the date it was
given to prison officials for forwarding to the court clerk.”); see also
Rule 3(d) of the Rules Governing § 2254 Cases in the United States
District Courts. Because nothing turns on the discrepancy in this case,
the court will consider the petition filed on the earlier of the two
dates, May 1, 2013.
3
explanation of how the letter provides a factual predicate for any
of his claims; and (3) a description of his efforts to discover
the facts underlying his claims.
(Id. at 8.)
The court also
directed petitioner to provide any facts or evidence indicating
whether statutory tolling applies to his claims.
(Id. at 6.)
Petitioner subsequently filed an affirmation in which he
discussed the 11/15/11 Letter and how it supported his claim of
actual innocence, though not how it supported his other two claims.
(ECF No. 7, Petitioner Affidavit (“Pet. Aff.”).)
The letter was
attached to the affirmation as an exhibit. (Id., Ex. B.)
The court
then ordered respondent to file a complete and entire answer or
other pleading in response to the petition within 60 days. (ECF
No. 8, Order to Show Cause.)
Respondent filed an affidavit and
memorandum of law in opposition to the petition arguing that it
was time-barred (ECF No. 10, Affidavit and Memorandum in Opposition
to Petition for Writ of Habeas Corpus (“Def. Aff.” And “Def.
Resp.”)), to which petitioner replied. 4
(ECF No. 13, Reply (“Pet.
Reply”).)
4
Although petitioner has apparently been released on parole (see ECF
No. 16, Notice of Change of Address; https://www.parole.ny.gov/ (New
York State Division of Parole site revealing that petitioner is on
“active” parole status)), he is still “in custody” for purposes of 28
U.S.C. § 2254. See Jones v. Cunningham, 371 U.S. 236, 243 (1963) (“While
petitioner’s parole releases him from immediate physical imprisonment,
it imposes conditions which significantly confine and restrain his
freedom; this is enough to keep him in the ‘custody’ of the members of
the Virginia Parole Board within the meaning of the habeas corpus
statute . . . .”); Eisemann v. Herbert, 401 F.3d 102, 105 (2d Cir. 2005)
(“The District Court and [petitioner’s] counsel indicated that
4
The court will address whether petitioner is entitled
to: (1) statutory tolling; (2) equitable tolling; or (3) relief
based on a showing of actual innocence.
DISCUSSION
I.
AEDPA’s Statute of Limitations
A petition for a writ of habeas corpus filed by a person
in state custody is governed by AEDPA, which imposes a one-year
statute of limitations for seeking federal habeas relief from a
state court judgment.
See 28 U.S.C. § 2244(d)(1).
Pursuant to
AEDPA, the limitation period runs from the latest of:
(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;
(C) the date on which the constitutional right
asserted was initially recognized by the Supreme
Court, if the right has been newly 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
or
claims
presented
could
have
been
discovered through the exercise of due diligence.
[petitioner] has either been released on parole or is soon to be
released.
Even if he has been released on parole, he would be ‘in
custody’ for purposes of 28 U.S.C. § 2254.”).
5
§
2244(d)(1).
Of
these
provisions,
only
§ 2244(d)(1)(D)
—
concerning new evidence — is at issue in this case.
Determining the date on which the factual predicate for
a habeas claim is first discoverable requires a “district court to
analyze the factual bases of each claim and to determine when the
facts underlying the claim were known, or could with due diligence
have been discovered.” Rivas v. Fischer, 687 F.3d 514, 534 (2d
Cir. 2012). A factual predicate consists only of the “vital facts”
underlying a claim.
Id. at 535.
The Second Circuit has explained
that facts vital to a habeas petition are “those without which the
claim would necessarily be dismissed under Rule 4 of the Rules
Governing § 2254 Cases in the United States District Courts” (which
requires a district court to dismiss a § 2254 petition if it
plainly appears a petitioner is not entitled to relief).
Id.
AEDPA also contains a tolling provision that tolls the
statute of limitations during the pendency of a properly-filed
state court post-conviction petition.
See id. § 2244(d)(2) (“The
time during which a properly filed application for State postconviction or other collateral review with respect to the pertinent
judgment or claim is pending shall not be counted toward any period
of limitation under this subsection.”).
II.
Statutory Tolling
The court will initially address whether petitioner is
entitled to statutory tolling.
First, the court will evaluate
6
whether the limitation period was tolled pursuant to § 2244(d)(2)
because of a properly filed and pending state court post-conviction
petition.
Second, the court will address whether petitioner is
entitled to statutory tolling due to new evidence pursuant to
§ 2244(d)(1)(D).
A.
Tolling under § 2244(d)(2)
Petitioner’s conviction became final on February 13,
1996, upon the expiration of the 90-day period for seeking review
by the United States Supreme Court of the New York Court of
Appeals’ denial of relief on November 15, 1995.
See Gonzalez v.
United States, 792 F.3d 232, 234 (2d Cir. 2015) (“Where a defendant
does not seek Supreme Court review, a conviction becomes final
when the time to seek such review expires, 90 days from the order
affirming
the
conviction.”).
Because
petitioner’s
conviction
became final before the effective date of AEDPA, he was entitled
to a one-year “grace period” from the effective date of AEDPA —
until April 24, 1997 — to file his habeas petition.
See Ross v.
Artuz, 150 F.3d 97, 103 (2d Cir. 1998) (“[W]e 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.”); see also Rivas, 687 F.3d at 534.
Petitioner, however, did not file the instant § 2254 petition until
May 1, 2013, some sixteen years after the one-year grace period
had expired on April 24, 1997.
7
The court must consider whether, at some point before
the expiration of the grace period, the statute of limitations was
tolled due to a pending state court collateral attack on the
conviction.
As noted above, AEDPA provides for tolling of the
one-year period while a petitioner has a pending application for
collateral review in state court with respect to the pertinent
claim.
See § 2244(d)(2); see also Lawrence v. Florida, 549 U.S.
327, 331 (2007); Sumpter v. Sears, No. 09–CV–689, 2011 WL 31188,
at *2 (E.D.N.Y. Jan. 5, 2011).
“[A] state-court petition is
‘pending’ from the time it is first filed until finally disposed
of and further appellate review is unavailable under the particular
state’s procedures.”
Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir.
1999).
Here,
petitioner’s
first
post-conviction
petition
—
filed before his direct appeals failed, and before AEDPA was even
enacted — was denied by the state trial court on September 12,
1995, and petitioner apparently did not appeal from that decision.
(Pet. at ¶ 12; Def. Aff. at ¶ 17.)
No other event that could
potentially trigger statutory tolling occurred until four months
after the April 24, 2007 expiration of the grace period (on August
12, 1997, when petitioner filed his pro se petition for a writ of
error coram nobis with the Appellate Division).
(Pet. at ¶ 12.)
Accordingly, § 2244(d)(2) did not operate in this case to toll the
statute of limitations for petitioner’s claim.
8
B.
Tolling under § 2244(d)(1)(D)
A
petitioner’s
more
claim
challenging
is
timely
question,
under
however,
is
§ 2244(d)(1)(D).
whether
Section
2244(d)(1)(D) states that AEDPA’s one-year statute of limitations
may run from “the date on which the factual predicate of the claim
or claims presented could have been discovered through the exercise
of due diligence.”
Petitioner claims that a letter from his trial
counsel — Michael C. Harrison — from November 15, 2011 contains
new evidence that would prove his innocence.
In the letter, which
Mr. Harrison wrote to the New York State Department of Parole to
advocate for petitioner’s release, Mr. Harrison states:
It is my recollection that on a police
officer’s memo book there was a description
given which was three (3) to four (4) inches
taller than Mr. Allah as well as a weight that
would have caused the body proportions not to
be that of Mr. Allah.
I made an effort to
introduce this document showing the person who
left the murder scene was not Mr. Allah by way
of two evidentiary mechanisms. . . . The court
would not let the jury hear this evidence
which leaves one with the manifest problem of
denying admission of evidence that proves
innocence.
(Pet. Aff., Ex. B.)
Petitioner does not clarify whether this letter is the
“factual predicate” of his ineffective assistance claim, his claim
related to forensic testing, or his actual innocence claim.
It
appears to the court, however, that petitioner contends the letter
is the factual predicate of his actual innocence claim. Resolution
9
of that issue is unnecessary, however, because the information in
the letter does not constitute new evidence.
The issue of the suspect description in the Harrison
letter was litigated fully at trial.
Transcript (“Tr.) 147–63.)
(ECF No. 10, Exs. 1-3,
Mr. Harrison’s letter itself indicates
that he fought unsuccessfully to introduce the suspect description
through entries in a police officer’s memo book at trial, and the
trial transcript reveals an extended dialogue — taking place both
before the jury and during a sidebar — during which Mr. Harrison
and the prosecutor argued over whether the description could be
presented to the jury or employed to cross-examine one of the
investigating police officers.
Accordingly,
the
(Id.)
factual
predicate
underlying
petitioner’s habeas petition was known to petitioner at the time
of his trial, and thus cannot be used to toll the one-year statute
of limitations under § 2244(d)(1)(D).
See Rivas, 687 F.3d at 535–
37 (information that was discovered and part of the trial record
could not qualify as new evidence); Holden v. Griffin, No. 15–CV–
4548, 2015 WL 5793642, at *2–3 (E.D.N.Y. Sep. 30, 2015) (facts
underlying petitioner’s claim that had been previously raised
during direct appeal were not newly discovered evidence); see also
Wright v. Woodford, 32 F. App’x 953 (9th Cir. 2002) (“The district
court
properly
determined
that
§ 2244(d)(1)(D)
did
not
apply
because the record reflects that [petitioner] knew about the ‘new’
10
evidence at the time of trial.”); Davis v. Bradt, No. 10-CV-3587,
2013 WL 4647615, at *2 (E.D.N.Y. Aug. 28, 2013) (“[The] limitations
period begins to run from the date a petitioner is on notice of
the facts which would support a claim, not from the date on which
the petitioner has in his possession evidence to support his
claim.” (internal quotation marks and citation omitted)).
The fact that petitioner may not have understood the
legal significance of the suspect description until learning of
Mr.
Harrison’s
November
15,
2011
letter
is
irrelevant,
as
§ 2244(d)(1)(D) “deals only with the discovery of predicate facts,
not their legal significance.”
Patel v. Martuscello, No. 10–CV–
4804, 2011 WL 703943, at *3 (E.D.N.Y. Feb. 16, 2011); Adams v.
Greiner, 272 F. Supp. 2d 269, 274 (S.D.N.Y. 2003) (“Time begins
when the prisoner knows (or through diligence could discover) the
important facts, not when the prisoner recognizes their legal
significance.” (internal quotation marks and citation omitted));
see also Hasan v. Galaza, 254 F.3d 1150, 1154 n.3 (9th Cir. 2001)
(same); Flanagan v. Johnson, 154 F.3d 196, 199 (5th Cir. 1998)
(same).
Petitioner
also
appears
to
suggest
that
his
trial
attorney, Mr. Harrison, was threatened at the time of trial into
not presenting the witness description at issue.
6-8.)
(Pet. Reply at
Mr. Harrison’s November 15, 2011 letter never so much as
hints that he was threatened.
(Pet. Aff., Ex. B.)
11
Neither do the
other letters from Mr. Harrison that petitioner has attached to
his affirmation.
(Pet. Aff., Exs. A-C.)
Petitioner instead
supports his assertion about threats to Mr. Harrison with two
pieces of evidence.
The first is an affidavit from his wife,
Elizabeth Rodriguez, which provides: “Harrison stated he was told
not to present a police memo proving Mr. Allah’s innocence to the
jury, or there would be consequences.”
second
is
an
affirmation
from
his
(Pet. Aff., Ex. D.)
attorney
in
his
The
parole
proceedings who states that, in a conversation she had with Mr.
Harrison, he explained that “he felt threatened and was not able
to present pertinent evidence regarding the description of the
offender to the jury.”
(Id.)
Petitioner’s argument that the purported threats against
Mr. Harrison constitute new evidence is unavailing. First, nothing
in the trial record supports the assertion that threats were made.
The trial transcript suggests that the judge heard out the parties
and issued a ruling based on New York evidentiary law.
There is
no indication in the transcript of malice toward Mr. Harrison as
the parties discussed the suspect description.
(Tr. 147–63.)
Indeed, the judge appeared receptive to defense counsel’s proposed
potential avenues that might have permitted the introduction of
the contents of the suspect description.
At one point, the judge
directly
cross-examined
confronted
the
officer
being
Harrison about the suspect description.
12
by
Mr.
(Tr. 155-56 (“THE COURT:
Just a minute.
Look at the report.
Read it to yourself.
The
next question I think that counsel wishes to ask is whether it
refreshes your recollection as to whether or not you received a
description of the perpetrator.
Look at it and tell us if it does
refresh your recollection.”).) 5
Second, as noted above, Mr. Harrison himself — in the
three letters attached to the petition — does not once mention any
threats.
(See Pet. Aff., Exs. A–C.)
Third, petitioner nowhere
asserts that he lacked knowledge about the purported threats to
Mr. Harrison at the time of trial.
Relatedly, petitioner’s wife’s
affidavit indicates that her conversations with Mr. Harrison —
during which she purportedly learned about the threats — prompted
Mr. Harrison to write letters to the parole board.
Ex. D.)
(See Pet. Aff.,
Mr. Harrison’s letters were all written in 2011.
Pet. Aff., Exs. A-C.)
(See
Both petitioner and his wife were “cc’d” on
two of these letters, including the November 15, 2011 letter. (See
5
Petitioner appears to argue that there was a distinct off-the-record
discussion about the suspect description that occurred in the judge’s
chambers. (Pet. Reply at 5.) But the transcript indicates that the
parties’ entire discussion about the suspect description occurred on the
record. The parties do not suggest at any time during the discussion
about the suspect description that it had been broached at any earlier
time. Additionally, once the officer came off the stand and the jury
had been dismissed for the day, Mr. Harrison — who initially sought to
retain the right to recall the officer — dropped that request. (Tr. 163
(“MR. HARRISON: Your Honor, as a matter of fact, I do have one thing,
if I may. I am not going to hold the officer that was just on the stand,
McMullen, for the defense case.
I don’t want to – I’m withdrawing
that.”).) It is therefore unlikely that further discussions about the
letter occurred off the record.
13
Pet. Aff., Ex. B.)
Petitioner, then, apparently possessed the
letters over one year before he brought the instant petition in
May 2013.
Section 2244(d)(1)(D) provides, as relevant here, that
the one-year statute of limitations begins on the date that the
factual predicate of the claim could have been discovered with due
diligence.
Consequently, even granting petitioner the benefit of
every doubt about when he discovered the threat and assuming there
is
sufficient
evidence
to
indicate
that
a
threat
was
made,
petitioner’s wife’s letter and the timing of Mr. Harrison’s letters
provide strong evidence that the petition would still be untimely.
III. Equitable Tolling
The one-year limitation period may also be tolled for
equitable reasons, in situations where strict adherence to the
statutory requirements would result in injustice.
See Holland v.
Florida, 560 U.S. 631, 645 (2010) (holding that the one-year
limitation period is “subject to equitable tolling in appropriate
cases”); see also Rodriguez v. Bennett, 303 F.3d 435, 438 (2d Cir.
2002) (same). “To be entitled to equitable tolling, [a petitioner]
must show (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way and
prevented timely filing.”
Lawrence, 549 U.S. at 336 (internal
quotation marks and citation omitted).
Petitioner has the burden to establish that he exercised
reasonable diligence in discovering the factual predicate of his
14
habeas claims.
See Shabazz v. Filion, No. 02-CV-0939, 2006 WL
2792741,
(N.D.N.Y.
at
Petitioner
*5
similarly
must
Sep.
26,
2006)
“demonstrate
(collecting
a
causal
cases).
relationship
between the extraordinary circumstances . . . and the lateness of
his filing, a demonstration that cannot be made if the petitioner,
acting
with
reasonable
notwithstanding.”
diligence,
could
have
filed
on
time
Bolarinwa v. Williams, 593 F.3d 226, 231 (2d
Cir. 2010) (internal quotation marks, alteration and citations
omitted).
“The
uniqueness
of
term
the
‘extraordinary’
petitioner’s
does
not
circumstances,
refer
but
to
the
rather
how
severe an obstacle it is for the prisoner endeavoring to comply
with
AEDPA’s
limitations
period.”
quotation marks and citation omitted).
Id.
at
231-32
(internal
Moreover, mere ignorance
of the law by a pro se inmate does not constitute an extraordinary
circumstance for the purposes of satisfying AEDPA.
See Sanzone v.
Goode, No. 10-CV-4431, 2011 WL 3625544, at *3 (E.D.N.Y. Aug. 12,
2011) (“Ignorance of the law by a pro se petitioner does not
constitute an extraordinary circumstance that warrants equitable
tolling.”).
This court found no basis to equitably toll the one-year
limitation period prescribed by AEDPA when it first considered the
instant petition and ordered petitioner to inform the court of any
good faith basis for doing so.
(See Show Cause Order).
Petitioner
alleges that the November 15, 2011 trial counsel letter containing
15
evidence of his actual innocence was not made known to him until
shortly before he filed his habeas petition, so the one-year
limitation period should not have begun running until that date.
As discussed above, however, the letter only recites information
that was part of the public record for more than 20 years.
if
the
letter
did
include
some
new
information
that
Even
could
potentially aid petitioner, neither the letter nor petitioner’s
affirmation filed alongside it contain any information that would
tend to support the assertion that petitioner has faced the sort
of extraordinary obstacles to timely filing that are necessary to
equitably toll AEDPA’s statute of limitations.
Petitioner is
therefore not entitled to equitable tolling.
IV.
Actual Innocence
Finally,
petitioner
argues
that
his
habeas
petition
should be granted because the November 15, 2011 letter proves he
is actually innocent of the crime for which he was convicted.
(Pet. at ¶ 14.)
Actual innocence, “if proved, serves as a gateway
through which a petitioner may pass whether the impediment is a
procedural bar . . . , or, as in this case, expiration of the
statute of limitations.”
1928 (2013).
McQuiggin v. Perkins, 133 S. Ct. 1924,
The requisite showing of actual innocence will take
16
the habeas petition out of the statute of limitations, regardless
of how much time has passed since the conviction. 6
However, “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 (2006)).
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.’”
Id. (emphasis added) (quoting Schlup v. Delo, 513 U.S. 298, 324
(1995)).
“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.’”
Id. (quoting House, 547 U.S. at 538). This criteria for presenting
a claim of actual innocence is often referred to as the Schlup
standard.
Petitioner submits that the witness description at issue
— whose source was never firmly established at trial (Tr. 147-63)
6
In light of the resolution the court reaches in this petition, there
is no need to resolve the extraordinarily fraught issue of whether
petitioner could pursue a freestanding actual innocence claim.
See
McQuiggin v. Perkins, 133 S. Ct. 1924, 1931 (2013) (“We have not resolved
whether a prisoner may be entitled to habeas relief based on a
freestanding claim of actual innocence.”); DiMattina v. United States,
949 F. Supp. 2d 387, 418 (E.D.N.Y. 2013) (providing thorough discussion
of the conflict in the courts over whether collateral relief “can be
granted based on [a]n independent claim of innocence”).
17
— demonstrates his innocence.
A witness purportedly described the
perpetrator as three to four inches taller than petitioner and
with a different body type.
(See Pet. Aff, Ex. B.)
Petitioner’s
assertion of actual innocence is supported only by a description
provided by this witness, which — as discussed earlier — was
already part of the trial record more than 20 years ago.
The
witness description is not “new reliable evidence” within the
meaning of Schlup.
See 513 U.S. at 324.
Indeed, there is nothing
“new” about the evidence at all.
The Supreme Court recently stated that “[t]he gateway
should open only when a petition presents ‘evidence of innocence
so strong that a court cannot have confidence in the outcome of
the trial. . . .’” McQuiggin, 133 S.Ct. at 1936 (quoting Schlup,
513 U.S. at 316). 7
Here, petitioner has failed to provide any new
evidence of his actual innocence, let alone the strong evidence
required
by
the
Supreme
Court
in
these
circumstances.
The
description at issue — even if it accurately reflects an unnamed
witness’s description provided to law enforcement personnel —
simply does not carry enough weight to cause the court to lose
confidence in the outcome of petitioner’s trial.
As discussed
further below, there was sufficient evidence at trial by the
7 In McQuiggin, the Court rejected the actual innocence claim of a
petitioner also relying on “new evidence” constituting information
“substantially available to [petitioner] at trial.” 133 S.Ct. at 1936
(internal quotation marks and citation omitted).
18
victim’s neighbors describing an individual matching petitioner’s
physical characteristics.
To
the
extent
(Tr. 47-48, 239-40, 415, 421-23.)
that
a
purported
threat
made
to
Mr.
Harrison can be considered new evidence, such evidence also falls
far short of the Schlup standard.
Even if Mr. Harrison was
threatened — which, as the court noted earlier, is far from clear,
see supra Part II.B — the threat only appears to be related to the
witness description.
(See Pet. Aff., Ex. B.)
Because the court
has already concluded that this witness description — which itself
is not new evidence — does not cast serious doubt on the outcome
of petitioner’s trial, neither can the purported threat.
The purportedly new evidence at issue here is also
especially unconvincing in light of the considerable evidence
against petitioner, which the appellate court on his direct appeal
characterized as “overwhelming.”
cite
just
a
few
limited
Allah, 631 N.Y.S.2d at 248.
examples
of
the
government’s
To
trial
evidence, there was testimony that petitioner had left a party
only hours before the murder with the victim.
(Tr. 326-27.)
A
neighbor of the victim and her fiancé — Zaida Torres and Ramon
German — testified that, on the morning of the murder for which
petitioner was convicted, they heard loud noises and a scuffle
coming from an adjacent apartment.
and
German
subsequently
went
into
(Tr. 34, 234.)
the
hallway
Both Torres
and
observed
petitioner nervously leave the victim’s apartment with a towel
19
covering his hand and what appeared to be an object.
238, 243, 245-46.)
(Tr. 38–40,
Petitioner then walked directly by Torres, who
observed his body and face from approximately a foot and a half
away.
(Tr. 41.)
German viewed petitioner from approximately 14
feet away. (Tr. 242.)
Torres asked petitioner if her neighbor —
the victim — was in his apartment.
(Tr. 38, 240-41.)
Petitioner
responded that he was (Tr. 38, 240-41), and then walked quickly or
ran toward an exit.
(Tr. 39, 244.)
Torres immediately entered
the victim’s apartment and discovered the victim — who died soon
thereafter — bleeding from multiple stab wounds. (Tr. 44-45, 120.)
Both
Torres
and
German
independently
and
separately
picked
petitioner out of a lineup that was conducted the morning following
the murder.
(Tr. 48-49, 252-55.)
The
witness
description
from
Mr.
Harrison’s
letter,
which was available at the time of trial, is not new evidence.
See Rivas, 687 F.3d at 541 (recognizing that 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” (emphasis added) (internal quotation marks and citation
omitted)).
In addition, neither the witness description nor the
purported evidence of threats to Mr. Harrison is “so strong that
a court cannot have confidence in the outcome of the trial . . . .”
20
McQuiggin, 133 S.Ct. at 1936 (internal quotation marks and citation
omitted).
CONCLUSION
For the foregoing reasons, this petition for a writ of
habeas corpus is dismissed in its entirety as time-barred.
The
Clerk of the Court is respectfully directed to enter judgment in
favor of respondent, close this case, and serve a copy of this
order on the pro se petitioner at his last known address.
Pursuant
§ 2253(c)(2),
a
to
Fed.
certificate
R.
of
App.
P.
22(b)
appealability
and
will
28
not
U.S.C.
issue
because petitioner has not made a “substantial showing” of a denial
of a constitutional right.
322, 336 (2003).
See Miller-El v. Cockrell, 537 U.S.
Petitioner has a right to seek a certificate of
appealability from the United States Court of Appeals for the
Second Circuit.
See 28 U.S.C. § 2253(c).
SO ORDERED.
Dated: Brooklyn, New York
January 27, 2016
_______
/s/
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
21
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