Brockington v. Marshal
Filing
26
DECISION AND ORDER dismissing the petition as untimely after consideration of the Second Circuit's instructions in the remand order (Docket #12). Signed by Hon. Michael A. Telesca on 9/21/11. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________
TODDRICK BROCKINGTON,
DECISION AND ORDER
No. 07-CV-0286T
Petitioner,
-vsLUIS MARSHAL,
Superintendent,
Respondent.
________________________________
I.
Introduction
Pro
se
Petitioner
Toddrick
Brockington
(“Petitioner”
or
“Brockington”) commenced the instant habeas corpus proceeding,
pursuant to 28 U.S.C. § 2254, on April 30, 2007.
Dkt. No. 1.
Petitioner challenges the constitutionality of his conviction,
following a jury trial in Monroe County Court, on charges of
Manslaughter in the Second Degree, Murder in the Second Degree, and
Robbery in the First Degree. Trial Transcript (“T.T.”) at 655-656.
The charges arose from a shooting incident that occurred on April
9, 1991, in the City of Rochester in which Petitioner shot and
killed
Timothy
McFarland
(“the
victim”)
during
a
robbery.
Petitioner is currently serving an aggregate sentence of twentyfive years to life.
In
the
following
habeas
grounds:
petition,
Petitioner
seeks
(1)
conviction
was
the
relief
obtained
on
by
the
an
unconstitutional failure of the prosecution to disclose evidence
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favorable
to
Petitioner;
(2)
ineffective
assistance
of
trial
counsel based on trial counsel’s failure to make a reasonable
investigation into property collected from victim as well as any
evidence the medical examiner collected from the victim; (3) the
prosecution
suppressed
medical
examiner’s
Case
Narrative
and
allowed false testimony to be presented to jury; and (4) the jury
charge on the robbery count was erroneous.
See Pet. ¶ 12 A-D (Dkt.
No. 1). Respondent argues that all of these grounds for relief are
subject to an unexcused procedural default and are, in any event,
entirely without merit. Resp’t Mem. at 10-11, 13 (Dkt. No. 22-1).
Respondent argues that the jury instruction claim is unexhausted
but procedurally defaulted and, moreover, without merit. Id. at 15.
On January 22, 2008, the Court (Skretny, D.J.) dismissed the
habeas petition on the basis that it was untimely.
Dkt. No. 8.
Petitioner sought and obtained a certificate of appealability from
the Second Circuit Court of Appeals. The Second Circuit held that
the district court had correctly concluded that Brockington’s 2007
petition was filed more than a decade after the “grace period” of
the
Antiterrorism
and
Effective
Death
Penalty
Act
of
1996
(“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214. Brockington v.
Marshal, 275 F.3d. Appx. 157, 158, 2010 WL 1740817, at **1 (2d Cir.
May 3, 2010) (citing Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998)
(allowing
defendants
convicted
before
AEDPA
to
file
habeas
petitions by April 24, 1997)). However, the Second Circuit found,
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the
district
court
erred
in
failing
to
determine
whether
Brockington was entitled to equitable tolling of the statute on the
basis of actual innocence.
In particular, the Second Circuit concluded that Brockington’s
pro se petition–albeit “barely so”– asserted a claim of actual
innocence by attaching copies of “two state court decisions denying
post-conviction
relief,
each
noting
his
claim
that
the
case
narrative supported his defense that the robbery never occurred and
that he was innocent.” Brockington, 2010 WL 1740817, at **1 (citing
People v. Brockington, No. 91-0321, slip op. at 3 (N.Y. Sup. Ct.
Feb. 27, 2006) (“[D]efendant contends that . . . he is innocent of
the crimes of which he stands convicted.”); People v. Brockington,
No. 91-0321, slip op. at 8 (N.Y.Sup.Ct. Dec. 22, 2003) (“[I]t is
defendant’s contention that the Case Narrative proves that no
robbery occurred. . . .”)).
Therefore, the Second Circuit remanded the matter “to permit
the district court to conduct the following sequential inquiry,”
2010 WL 1740817, at **2:
(1) Did [Petitioner] pursue his actual
innocence claim with reasonable diligence?
(2) If [he] did not pursue the claim with
reasonable diligence, must an actual innocence
claim be pursued with reasonable diligence in
order to raise an issue of whether the United
States
Constitution
requires
an
‘actual
innocence’ exception to the AEDPA statute of
limitations?
-3-
(3) If [he] did pursue the claim with
reasonable
diligence
or
if
reasonable
diligence is unnecessary, does [he] make a
credible claim of actual innocence?
(4) If [he] does make a credible claim of
actual innocence, does the United States
Constitution require an ‘actual innoence’
exception to the AEDPA statute of limitations
on federal habeas petitions?
Id. (citing Whitley v. Senkowski, 317 F.3d at 225-26).
Courts in this Circuit determining whether a petitioner is
entitled to equitable tolling based on a claim of actual innocence
have found no need to address the first, second, and fourth factors
of the above-described analysis if the petitioner fails to “make
a credible claim of actual innocence.” E.g., Bower v. Walsh, 703 F.
Supp.2d 204 (E.D.N.Y. 2010) (“In light of this determination [that
petitioner has not set forth a credible claim of actual innocence],
the
Court
need
not
address
the
issue
of
whether
reasonable
diligence is required in order to pass through the actual innocence
‘gateway.’”)(citing Doe, 391 F.3d at 161)(“In adherence to our
repeated statements that we will decide whether equitable tolling
is available on the basis of actual innocence only in a case in
which the petitioner has made a credible claim of actual innocence,
therefore,
we
do
not
reach
Doe’s
arguments
that
various
constitutional provisions require that AEDPA’s limitations period
be tolled for actual innocence.”) (emphasis supplied); id. at 17374; Whitley v. Senkowski, 317 F.3d at 225-26; Lucidore v. New York
State Div. of Parole, 209 F.3d 107, 114 (2d Cir. 2000)).
-4-
Given the Second Circuit’s stated preference for refraining
from
deciding
innocence”
whether
exception
the
to
Constitution
the
statute
of
requires
an
limitations
“actual
unless
a
petitioner presents a credible claim of factual innocence, the
Court confines its analysis to the third aspect of Whitley–that is,
whether Petitioner’s claim of actual innocence is credible. As
discussed further below, Petitioner has clearly failed to make a
“credible claim of actual innocence” under the pertinent standards
articulated by the Supreme Court and the Second Circuit. Therefore,
equitable tolling is unavailable and the petition must be dismissed
as untimely.
II.
Discussion
The Second Circuit has assumed that if actual innocence does
provide a basis for tolling the limitations period, the Supreme
Court’s
“delineation
of
the
evidentiary
showing
necessary
to
demonstrate actual innocence [in Schlup v. Delo, 513 U.S. 298, 324
(1995)] would apply in evaluating whether the petitioner had made
a credible showing of actual innocence.” Doe, 391 F.3d at 161
(citing Lucidore, 209 F.3d at 114 (applying the Schlup standard and
holding that petitioner had not demonstrated actual innocence)).
The Schlup court “carefully limited the type of evidence on which
an actual innocence claim may be based and crafted a demanding
standard that petitioners must meet in order to take advantage of
the
gateway[,]”
Doe,
391
F.3d
-5-
at
161,
explaining
that
the
petitioner
must
support
his
claim
“with
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.
In addition, the petitioner must prove it is “more likely than
not that no reasonable juror would have found [him] guilty beyond
a reasonable doubt.”
Whitley, 317 F.3d at 225 (alteration in
original) (quoting Lucidore, 209 F.3d at 114).
The “new reliable
evidence” standard requires the court to evaluate the evidence both
“on its own merits” and “in light of the pre-existing evidence in
the record,” if appropriate.
Doe, 391 F.3d at 161 (citing Schlup,
513 U.S. at 327-28). Even if a petitioner can prove his evidence is
reliable, the court must then determine whether a reasonable juror
would have nonetheless convicted petitioner.
The court must
“determine whether new evidence truly throws the petitioner’s
conviction into doubt,” or whether such evidence “is insufficient
to raise a question as to a petitioner’s factual innocence.”
Doe,
391 F.3d at 162.
In this case, the “new” evidence upon which Petitioner relies
is the medical examiner’s “case narrative” which he obtained in
1996 as the result of a Freedom of Information Law (“FOIL”)
request. There is a question as to whether the evidence is actually
new, since Respondent “does not concede that the People possessed
the ‘case narrative’ and/or that it was not given to petitioner
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during discovery.” Respondent’s Memorandum of Law at 6 n.1. Indeed,
the “case narrative” in question appears to be the type of document
that would have been turned over to the defense as a matter of
routine prior to trial.
Even assuming, arguendo, that the “case
narrative” qualifies as “new” evidence, it is not reliable evidence
of actual innocence.
Petitioner argues that the “case narrative”, which shows that
the victim was still in possession of money and drugs at the time
he was murdered,1 proves that no robbery occurred. Therefore,
Petitioner reasons, he cannot be criminally liable for felony
murder and robbery.
See Pet’r Mem. of Law at 8-10, 14.
At most, Petitioner is asserting a claim that the evidence was
legally insufficient to prove beyond a reasonable doubt a necessary
element
of
the
robbery
underlying
the
felony
murder
charge.2
1
Petitioner points to a notation regarding the “Personal Effects” found on
the victim’s body. In the left front pants’ pocket, the coroner found “numerous
small blue colored packets . . . [that] appear to contain a white, powdery
substance”, some of which were labeled “Midnight Run.” The coroner observed that
these packets possibly contained a controlled substance. Also found in the pocket
with the money and blue packets were “$58.00 in bills and $.52 in change.” In the
rear pockets were “2 gold colored keys” and “$239.00 in bills.” See Case
Narrative at 2, Exhibit C to Petitioner’s Reply Memorandum of Law (Dkt. No. 243).
2
See, e.g., People v. Simon, 119 A.D.2d 602, 603-04 (App. Div. 2d Dept.
1986) (“It is beyond dispute that the essential elements of the underlying felony
must be proven beyond a reasonable doubt in order for a conviction of felony
murder to be justified. We find that the evidence in this case was insufficient
to establish the forcible stealing of property, an essential element of the
underlying felony of robbery. The People alleged that the defendant or his
cohorts stole money and a radio from the victim. However, there was no evidence,
either direct or circumstantial, that any money had been taken from Charles
Miller. Indeed, the only mention of money within the evidence was that $20 in
change was recovered from the victim at the hospital.”).
-7-
However, “‘actual innocence’ means factual innocence, not mere
legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623
(1998) (quoting Sawyer v. Whitley, 505 U.S. 333, 339 (1992)).
To be convicted of felony murder, Petitioner must have killed
the victim in the course of committing or attempting to commit, and
in furtherance of, a felony–including robbery. N.Y. PENAL LAW §
125.25(3). Under New York law, a “robbery” has been committed when
“in the course of committing a larceny [a person] uses or threatens
the immediate use of physical force upon another person . . . .”
N.Y. PENAL LAW § 160.00; see also id. § 155.05 (“A person steals
property and commits a larceny when, with intent to deprive another
of property or to appropriate the same to himself or to a third
person, he wrongfully takes, obtains or withholds such property
from an owner thereof.”).
The medical examiner’s “case narrative” does not undermine the
prosecution’s proof that the victim was forced by Petitioner, at
gunpoint, to hand over money from his (the victim’s) sock. The
prosecution presented proof that Petitioner demanded, “Give me what
you got,” and as the victim was in the process of retrieving
additional items from his pockets, Petitioner fatally shot him in
the head and fled the scene.
Resp’t Mem. at 12 (citing T.T. at
308, 327, 368, 388, 409, 612). In other words, the “case narrative”
does not negate the proof that Petitioner, while threatening the
victim with the immediate use of physical force, wrongfully took
-8-
money
from
him
and,
in
fact,
used
deadly
force
during
the
commission of the wrongful taking. See People v. Banks, 55 A.D.2d
795, 795, 389 N.Y.S.2d 664, 665-66 (App. Div. 3d Dept. 1976) (“A
robbery is . . . a larceny which has been committed with the use of
or the immediate threat of the use of physical force.”).
Thus, even assuming that the proffered evidence is new and
reliable, the “case narrative” is plainly insufficient to raise a
question as to Petitioner’s legal innocence, much less his factual
innocence. See Doe, 391 F.3d at 162 (“As Schlup makes clear, the
issue before such a court is not legal innocence but factual
innocence.”). Any additional items of value (e.g., the cash and the
packets of what presumably was a controlled substance) remaining in
the victim’s pockets did not foreclose the jury from finding that
Petitioner shot and killed the victim during a robbery.
Respondent also has construed Petitioner’s allegations as
asserting that he is actually innocent because a robbery was never
completed. However, as Respondent argues, such a contention is
based upon a misapprehension of the statutory language regarding
the offense of felony murder. Felony murder may be committed during
an attempted robbery. See N.Y. Penal Law § 125.25(3) (stating that
a person is guilty of felony murder when, “[a]cting either alone or
with one or more other persons, he commits or attempts to commit
robbery . . . and, in the course of and in furtherance of such
crime or of immediate flight therefrom, he, or another participant,
-9-
if there be any, causes the death of a person other than one of the
participants”) (McKinney’s 2006). “A person is guilty of an attempt
to commit a crime when, with intent to commit a crime, he engages
in conduct which tends to effect the commission of such crime.”
N.Y. PENAL LAW § 110.00.
The statutory language is clear that Petitioner could still be
guilty of felony murder even if the victim never forfeited any or
all items to Petitioner in response to Petitioner’s demands issued
to him at gunpoint. Cf. People v. Dixon, 221 A.D.2d 952, 952 (App.
Div. 4th Dept. 1995) (“Although defendant was acquitted of robbery
in the first degree, County Court properly instructed the jury that
it could consider attempted robbery as a predicate felony for
felony murder. There was a reasonable view of the evidence to
support the conclusion that defendant and his accomplice attempted
to, but did not, commit robbery, and thus that offense was properly
submitted to the jury as a predicate felony even though the
indictment
did
not
charge
defendant
with
that
offense[.]”)
(citations omitted).
Considering the “case narrative” in light of all the evidence,
Petitioner has failed to demonstrate that it is more likely than
not that no reasonable juror would have found him guilty beyond a
reasonable doubt of felony murder. Therefore, the Court concludes
that Petitioner has not made out a credible claim of actual
innocence under Schlup, 513 U.S. at 298, 318-21. Absent a credible
-10-
claim of actual innocence, there is no need to determine whether
equitable
tolling
for
actual
innocence
is
constitutionally
required. Doe, 391 F.3d at 161.
V.
Conclusion
As
determined
by
Judge
Skretny
in
his
original
order
dismissing the petition, and as confirmed by the Second Circuit in
its remand order, Petitioner’s petition for a writ of habeas corpus
(Dkt. No. 1) is untimely.
Pursuant to the Second Circuit’s remand
order, the Court has considered Petitioner’s claim of actual
innocence and finds that he has failed to demonstrate that it is
more likely than not that no reasonable juror would have found him
guilty beyond a reasonable doubt had the “case narrative” been
presented at trial. As Petitioner has failed to set forth a
credible claim of actual innocence, there is no need to determine
whether equitable tolling of the statute of limitations for actual
innocence
is
constitutionally
required.
The
Court
therefore
dismisses the petition as untimely.
Because Petitioner has failed to make “a substantial showing
of a denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
Court declines to issue a certificate of appealability. See, e.g.,
Lucidore, 209 F.3d at 111-113.
The Court also hereby certifies,
pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this
judgment would not be taken in good faith and therefore denies
-11-
leave to appeal as a poor person.
Coppedge v. United States, 369
U.S. 438 (1962).
Petitioner must file any notice of appeal with the Clerk’s
Office, United States District Court, Western District of New York,
within thirty (30) days of the date of judgment in this action.
Requests to proceed on appeal as a poor person must be filed with
United States Court of Appeals for the Second Circuit in accordance
with the requirements of Rule 24 of the Federal Rules of Appellate
Procedure.
IT IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
DATED:
September 21, 2011
Rochester, New York
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