Hanzlik v. Joseph
Filing
23
OPINION AND ORDER STAYING HABEAS PETITION: For the reasons stated herein, the Court enters a stay and abeyance of the petition to allow petitioner to pursue her unexhausted claims in state court. The stay is conditioned on petitioner pursuing relie f in the state court within 30 days of the filing of this Order, and petitioner may move to renew the petition, if necessary, within 30 after the state court proceedings are exhausted, and as further set forth herein. (Case stayed.) (Signed by Judge Alvin K. Hellerstein on 5/18/2018) (ras)
:.>!',.
>
ir---·~-
USDC SDNY _
11 ·DOCUMENT
;
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------------- X
-~~ECTRONICALL\' FILED,
ro0r- ,,
,
. ·1,1_,.:J):_
6/lr/t,o_\1, / :\
·- ·-·- ---=====-=======-··=·:!!'
KIMBERLY HANZLIK,
Petitioner,
OPINION AND ORDER
STAYING HABEAS PETITION
-against17 Civ. 6577 (AKH)
JOSEPH JOSEPH, Superintendent Bedford Hills
Correctional Facility,
Respondent.
-------------------------------------------------------------- X
ALVIN K. HELLERSTEIN, U.S.D.J.:
Petitioner Kimberly Hanzlik ("Petitioner"), currently incarcerated at the Bedford
Hills Correctional Facility in New York, brings this counseled petition for a writ of habeas
corpus under 28 U.S.C. § 2254. In 2011, petitioner was convicted of second-degree murder in
New York state court and was sentenced to an indeterminate term of twenty years to life in
prison. After the petition was filed and came fully briefed, petitioner's counsel received new
evidence in the form of recently unsealed plea minutes from the prosecution's central
cooperating witness in the case against petitioner. See Letter from Irving Cohen, ECF 21. In
light of this new evidence, and for the reasons that follow, the Court enters a stay and abeyance
of the petition so that petitioner may pursue her claim based on this new evidence in state court.
Background
This petition concerns the 1999 murder of Joseph Brown, who was shot and killed
at Frenchy's Bar in the Bronx. After the case went cold for nearly a decade, Petitioner and her
alleged accomplice, Joseph Meldish ("Meldish"), were convicted by a jury of second-degree
murder in 2011. What follows is a briefrecitation of the facts relevant to the Court's disposition.
A.
Factual and Procedural Background
According to the government's theory of the case, Meldish set out on March 21,
1999 to murder Thomas Brown after the two had a dispute over a loan. On the mistaken belief
that Joseph Brown was actually his brother Thomas, Meldish entered Frenchy's Bar in the
Bronx, shot and killed Joseph in the crowded bar, and fled in a car driven by David Thiong, a
local drug dealer. In interviews conducted immediately after the crime, Thiong twice refused to
provide information on his role in the shooting. On a third occasion, Thiong apparently told
detectives that he drove Meldish to Frenchy's Bar on the night in question, but that petitioner
was not present at the time. 1
After sitting dormant for nearly a decade, the case was assigned to Detective
Tracey, a New York Police Department cold case detective. During his investigation, Tracey
turned up two key pieces of evidence that led to the convictions of petitioner and Meldish. First,
facing drug charges in Westchester County, Thiong agreed to testify against petitioner and
Meldish. Thiong testified at the trial that because Frenchy's Bar was crowded on the night in
question, petitioner entered first to scout the victim's location. According to Thiong, once
petitioner identified the victim, she returned to the car and relayed the information to Meldish,
who traced petitioner's path into the bar and carried out the shooting. It is undisputed that
Thiong's testimony was crucial to the government's case. Second, Joseph Brown's wife, who
was at Frenchy's Bar that night, identified petitioner as having been present at the bar
immediately prior to the shooting, corroborating Thiong's account. 2
meeting, which was memorialized in a DDS document drafted by the detective on the case, largely underpins
the original petition currently before the Court. Petitioner argues that her trial counsel was constitutionally
ineffective for failing to cross examine Thiong based on this document, and for relying instead on the two previous
meetings with police that exculpated both Meldish and petitioner. In light of the stay and abeyance entered in this
case, the Court expresses no views on the merits of the underlying petition as it was originally presented.
2
Eileen Brown, Joseph Brown's wife, did not mention seeing anyone suspicious before the shooting until she met
with Detective Tracey in 2007, approximately eight years after the shooting. The parties dispute whether her
testimony was reliable and consistent with Thiong's, but there is no question that her testimony was crucial to the
government's case against petitioner.
1 This
2
Largely based on this evidence, petitioner was convicted by the jury of seconddegree murder on February 16, 2011, and was sentenced by Justice Webber to an indeterminate
term of twenty years to life in prison. 3 The Appellate Division unanimously affirmed
petitioner's conviction on May 15, 2012, People v. Hanzlik, 945 N.Y.S.2d 229 (App. Div. 2012),
and the New York Court of Appeals denied her application for leave to appeal on August 20,
2012, People v. Hanzlik, 19 N.Y.3d 997 (2012).
On June 25, 2013, petitioner sought review of her conviction in New York state
habeas proceedings, pursuant to N.Y. Crim. Proc. § 440.10, principally arguing that her trial
counsel was ineffective for failing to cross examine Thiong with his third statement to police,
described above, which inculpated Meldish and exculpated petitioner. The New York Supreme
Court denied the motion on February 20, 2014, see SR 8-17,4 and the Appellate Division
unanimously affirmed the denial on April 9, 2015, People v. Hanzlik, 8 N.Y.S.3d 271 (App. Div.
2015), holding that petitioner did not receive constitutionally deficient assistance of counsel
during her trial. The New York Court of Appeals denied petitioner's application for leave to
appeal on June 19, 2015. People v. Hanzlik, 25 N.Y.3d 1164 (2015).
After retaining new counsel, Petitioner filed a second state habeas petition on
March 28, 2016. In addition to the ineffective assistance claim, the second§ 440 petition also
argued that the prosecutor withheld evidence in violation of Brady v. Maryland, 373 U.S. 83
( 1963 ), and that petitioner was actually innocent. 5 The Bronx Supreme Court denied the motion
on August 24, 2016, see SR 472-79, and this petition followed.
Meldish was convicted of second-degree murder and sentenced to an indeterminate term of25 years to life in
prison.
4
References to "SR" refer to the State Court Record submitted by respondent. See Response, ECF 14.
5
Unlike federal courts, which have not explicitly recognized a freestanding claim of actual innocence in federal
habeas proceedings, see McQuiggin v. Perkins, 569 U.S. 383, 392 (2013) ("We have not resolved whether a prisoner
may be entitled to habeas relief based on a freestanding claim of actual innocence."), such relief is available in New
York state habeas proceedings, see People v. Hamilton, 979 N.Y.S.2d 97, 108 (App. Div. 2014) ("Thus, we
conclude that a freestanding claim of actual innocence may be addressed pursuant to CPL 440.lO(l)(h), which
provides for vacating a judgment which was obtained in violation ofan accused's constitutional rights."). However,
3
3
B.
New Evidence
In a letter dated May 9, 2018, petitioner's counsel raised new evidence central to
petitioner's claim. See Letter from Irving Cohen, ECF 21. The letter states that on May 4, 2018,
petitioner's counsel received- for the first time-an unsealed transcript of a guilty plea entered
by Thiong in Westcheste r County on drug charges prior to petitioner's trial. According to a
separate letter submitted by respondent on May 14, 2018, both parties received the transcript
from the Bronx District Attorney's Office in early May 2018. See Letter from Lisa E.
Fleishmann , ECF 22, at 1. Apparently the Bronx District Attorney's Office recently received the
unsealed transcript as part of petitioner's post-judgm ent motions. Id. Because the transcript
surfaced recently, this evidence was not before the state court when it considered petitioner's
Brady claim in her second § 440 petition. Taken with records from the trial, the transcript of
Thiong's plea casts doubt on petitioner's state court proceeding s and requires the Court to enter a
stay and abeyance of this petition to allow petitioner to exhaust her new claims in state court.
1.
Backgroun d
A central issue at petitioner's trial was Thiong's credibility. He was the
prosecutio n's star cooperating witness, and his testimony placed petitioner right at the heart of
Joseph Brown's murder. According to Thiong, petitioner scouted Joseph Brown's location in the
crowded bar and reported that location to Meldish, who carried out the shooting. Together with
the testimony of Eileen Brown, the victim's wife, Thiong's testimony was crucial to the
prosecutio n's case.
One of petitioner's central defense strategies was to impeach Thiong's credibility
by arguing that his testimony was tainted by the grant of immunity on the Bronx murder charge.
the Supreme Court has recognized that "a credible showing of actual innocence may allow prisoner to pursue his
constitutional claims (here, ineffective assistance of counsel) on the merits notwithstanding the existence of a
procedural bar to relief." Id.
4
But petitioner also attempted to connect Thiong's cooperation in the murder case to his plea to
misdemeanor drug charges in Westchester County. During the trial, petitioner's trial counsel
sought discovery of any materials related to Thiong's plea deal with the Westchester County
District Attol'I\ey's Office. See Letter from Irving Cohen, ECF 21, Ex. 4, at 493. During a
colloquy with the Court, Assistant District Attorney Scaccia represented that the Westchester
plea deal, in which Thiong pled down to a misdemeanor drug charge, was "not any deal I made
with him, that's what Westchester gave him on this case." Id. The Court then asked more
directly: "So, the question Ms. Scaccia to you is, whether the deal included ... the time served
and a misdemeanor in Westchester or not." Id. at 494. Ms. Scaccia responded: "That was their
deal with him." Id. (emphasis added). In short, the prosecutor represented to the Court that
Thiong's plea deal on drug charges in Westchester County was unrelated to his cooperation in
the murder trial.
2.
Thiong's Plea Transcript
Thiong's plea minutes, which were recently unsealed and delivered to petitioner's
counsel only weeks ago, demonstrate that this was not accurate. During Thiong's plea hearing in
Westchester County, the judge described the plea agreement as follows:
The understanding between all parties, which would include the
Bronx District Attorney's Office, is as follows: This defendant is
to give full and complete cooperation to the Bronx District
Attorney's Office in an ongoing homicide investigation. This shall
include but is not necessarily limited to his truthful, full, truthful
and full testimony before the Bronx County Grand Jury in the near
future. And of course if necessary trial testimony. If his
cooperation is completed, we will be, we will, based on a
representation of the Bronx District Attorney's Office that that was
so, allow him to withdraw his previously entered plea to criminal
possession of controlled substance in the fifth degree, have him
withdraw that and just proceed to sentence on the posses·sion
seventh.
5
See Letter from Irving Cohen, ECF 21, Ex. 1, at 5. During the plea, Thiong's counsel stated that
"one of the reasons he's pleading today is with the understanding that he's going to receive full
immunity on the Bronx case." Id. at 7. It was also agreed that "once [Thiong] testifie[d] before
the grand jury" in petitioner's case, he would be released on bail in the Westchester County drug
case. Id. at 8. The deal also included a condition that "if things [fell] apart in the Bronx case ...
Mr. Thiong would have the right to withdraw his plea" in Westchester. Id. at 9. Finally, during
his allocution, Thiong was asked whether he understood what his "expectations [were] with
regard to the Bronx District Attorney's Office and what your sentencing commitments would
be," and he responded in the affirmative. Id. at 17.
These portions of Thiong's plea transcript indicate that, contrary to the
prosecutor's representations to the New York Supreme Court, Thiong's cooperation was secured
through a global plea agreement that covered the Westchester County drug charges and the
Bronx murder case against petitioner. But these materials, which clearly bear on Thiong's
credibility, were not disclosed to petitioner before trial, and were apparently not revealed until
years after petitioner's conviction and multiple rounds of appellate review.
Discussion
Petitioner urges the Court to consider this new evidence in evaluating her petition,
both as "a separate ground for granting the writ," and as evidence reinforcing her claim that she
is actually innocent. 6 See Letter from Irving Cohen, ECF 21, at 4. But in federal habeas
proceedings of this kind, I am not permitted to consider materials that have not yet been
reviewed by the state court that adjudicated petitioner's claim. As the Supreme Court explained
In a letter dated May 14, 2018, respondent argues that the newly discovered plea transcript simply "evidences that
Thiong's cooperation agreement was more generous than the prosecutor had represented at trial. But proof that
Thiong had a greater incentive to testify is not affirmative proof of petitioner's innocence." Letter from Lisa E.
Fleischmann, ECF 22, at 2. Although the Court has reservations about this position, as explained herein, my review
is limited to the evidence that was before the state court that adjudicated petitioner's claim.
6
6
in Cullen v. Pinholster, 563 U.S. 170, 181 (2011), "review under§ 2254(d)(l) is limited to the
record that was before the state court that adjudicated the claim on the merits." The Supreme
Court reached this conclusion based on the text of§ 2254(d)(l) and "the broader context of the
statute as a whole, which demonstrates Congress' intent to channel petitioners' claims first to the
state courts." Id. at 181-82 (internal quotation marks omitted) (quoting Robinson v. Shell Oil
Co., 519 U.S. 337, 341 (1997)). I am bound by this precedent.
Thus, the proper course is to stay and abey these habeas proceedings to allow
petitioner "to present to the state court [her] Brady claim," including the new materials contained
in Thiong's plea transcript. Gonzalez v. Wong, 667 F.3d 965, 980 (9th Cir. 2011). This is
similar to the path followed by the Ninth Circuit in Gonzalez v. Wong, see id., and advanced by
Justice Breyer in his concurring opinion in Pinholster, in which he wrote that a petitioner "can
always return to state court presenting new evidence not previously presented," Pinholster, 563
U.S. at 206 (Breyer, J., concurring in part and dissenting in part). Similar to the situation the
Ninth Circuit faced in Gonzalez, petitioner "raised and the state court explicitly rejected a Brady
claim," and "the suggestion that [petitioner] has presented a 'new claim' inherently invites
questions regarding exhaustion." Gonzalez, 667 F.3d at 979.
With the inclusion of this new evidence, petitioner has a colorable-and
potentially meritorious-claim under Brady v. Maryland, 373 U.S. at 87, which requires a
prosecutor to turn over potentially exculpatory evidence to the defense before trial, and Giglio v.
United States, 405 U.S. 150, 153-54 (1972), which extended the Brady rule to impeachment
evidence. Of course, petitioner will ultimately have to demonstrate that, taken cumulatively with
the remainder of the evidence, there is a "reasonable probability" that the result of her case
7
would have been different. Kyles v. Whitley, 514 U.S. 419, 434-35 (1995). But whether
7
petitioner can do so must be resolved in the first instance by the state court.
Finally, the stay and abey process adopted here is the same one that the Supreme
Court recognized in Rhines v. Weber, which considered a habeas petition with unexhauste d
claims. 8 544 U.S. 269,278 (2005). In Rhines, the Supreme Court held that "if the petitioner had
good cause for his failure to exhaust, his unexhausted claims are potentially meritorious, and
there is no indication that the petitioner engaged in intentionally dilatory litigation tactics[,] ...
the district court should stay, rather than dismiss," the petition. Id. Because petitioner was
unaware ofThiong' s plea transcript, which was only recently unsealed and turned over to
petitioner's counsel, and because petitioner has a potentially meritorious claim, the stay and abey
process is the appropriate course. Doing so reflects "petitioner 's interest in obtaining federal
review of his claims," id., and preserves the state's role as the initial arbiter of habeas claims, see
Pinholster, 563 U.S. at 181-82.
Finally, as the Supreme Court explained in Rhines, I retain discretion to structure
the stay in a manner that reflects the "timeliness concerns" of the federal habeas statute. Rhines,
544 U.S. at 277-78. Accordingly, the stay is conditioned on petitioner filing her Brady claim in
state court within 30 days of the filing of this Order. If petitioner wishes to renew this petition
following the completion of the state court's review, she must do so within 30 days after the state
court proceedings are exhausted.
The § 440 court may also wish to consider whether sanctions or other relief is appropriate based on the serious
allegation of prosecutorial misconduct.
8
Petitioner's claim is not, strictly speaking, an unexhausted claim covered by Rhines v. Weber, for as the Ninth
Circuit implicitly recognized in Gonzalez, petitioner's claim also rests on recently discovered new evidence
presented for the first time to the federal habeas court. Gonzalez, 667 F.3d at 980.
7
8
Conclusion
the petition
For the reasons stated herein, the Court enters a stay and abeyance of
The stay is conditioned on
to allow petitioner to pursue her unexhausted claims in state court.
of this Order, and
petitioner pursuing relief in the state court within 3 0 days of the filing
the state court
petitioner may move to renew the petition, if necessary, within 30 after
proceedings are exhausted.
SO ORDERED.
Dated:
MaY,J/1, 2018
NeJY~rk, New York
~-~~
United States District Judge
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?