235 F.3d 804 (2nd Cir. 2000), 99-2586, Fama v Comm'r of Correctional Serv.

Docket Nº:Docket No. 99-2586
Citation:235 F.3d 804
Party Name:JOSEPH FAMA, Petitioner-Appellant, v. COMMISSIONER OF CORRECTIONAL SERVICES, Respondent-Appellee.
Case Date:December 21, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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235 F.3d 804 (2nd Cir. 2000)

JOSEPH FAMA, Petitioner-Appellant,



Docket No. 99-2586

United States Court of Appeals, Second Circuit

December 21, 2000

Argued: October 3, 2000

Appeal from a judgment of the United States District Court for the Eastern District of New York (Johnson, J.), dismissing a petition for a writ of habeas corpus and denying a motion to amend that petition.


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PERRY S. REICH, Schapiro & Reich, Lindenhurst, NY, for appellant.

LEONARD JOBLOVE, for Charles S. Hynes, District Attorney, Kings County, NY (Monique Ferrell, on the brief), for appellee.


CALABRESI, Circuit Judge:

Petitioner Jospeh Fama, a New York State prisoner convicted of, among other things, murder in the second degree, New York Penal Law § 125.25[2], and riot in the first degree, New York Penal Law § 240.06, sought habeas corpus pursuant to 28 U.S.C. § 2254. In his habeas petition, Fama alleged, inter alia, that the State had produced insufficient evidence upon which a rational factfinder could conclude that he committed second-degree murder evincing depraved indifference to human life and that he was denied a fair trial due to publicity and juror intimidation. The district court (Johnson, J.) denied the petition, ruling that the insufficiency of the evidence claim had not been exhausted and that both that claim and the fair trial claim were procedurally barred. In addition, it denied Fama's motion to amend his petition and his motion for a certificate of appealability.

We granted a certificate of appealability as to the following issues: (1) whether "the evidence of 'depraved indifference' murder was legally insufficient;" (2) whether Fama "was denied a fair trial due to publicity and juror intimidation;" (3) whether "the district court correctly denied appellant's motion to amend on the ground of untimeliness;" and (4) whether "the district court correctly ruled that the claims appellant raised on direct appeal are procedurally barred." Although we find that the district court erred in its determinations of non-exhaustion and procedural bar and that it incorrectly denied Fama's motion to amend his petition on the ground of untimeliness, upon consideration of the merits of petitioner's claims, we affirm the judgment of the district court.


Fama's convictions arise out of the part that he played in a racial incident in Brooklyn in 1989. The testimony at trial showed that on August 23, 1989, a rumor spread in the predominantly white neighborhood of Bensonhurst that a young white woman had invited African American and Latino men to her birthday party. The young men of the neighborhood gathered near her home looking for "trouble." Four young black men not from the area,

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including Yusuf Hawkins,1 by chance arrived at that very place on their way to see a used car that was for sale. They were accosted by the mob, separated from each other, and threatened. Hawkins was shot and subsequently died in the hospital during surgery.

The prosecution's case at trial placed Fama at the scene, described him as begging another member of the crowd to give him a gun so that he could "just . . . shoot one of them," and sought to show that he shot Hawkins. Two pieces of evidence are specifically relevant to this appeal. First, Robert Russo, a prisoner who was a frequent police informer, testified that Fama had confessed to him while in jail awaiting trial. Fama challenged, then and now, the veracity of Russo's testimony. And second, Franklin Tighe, a young man also from Bensonhurst, stated that he had seen Fama shoot Hawkins (this testimony was supported by another Bensonhurst local who testified to Tighe's excited utterance about Fama shooting Hawkins).

Much evidence was presented by both sides regarding Tighe's poor state of mental health, and in particular, his tenuous grasp on reality. In a post-trial motion (before the jury retired), Fama argued that after Tighe left the witness stand, he voluntarily appeared at defense counsel's office and recanted his entire testimony on videotape. The trial judge, nonetheless, denied Fama's motion to reopen the case and place Tighe back on the witness stand for further cross-examination.

The state court charged the jury, in the alternative, on two counts of murder in the second degree -- intentional murder and depraved indifference murder. See New York Penal Code §125.25. The jury returned a verdict acquitting Fama of the former but convicting him of the latter. It also convicted him on a variety of other counts that are not directly related to this appeal.2

Fama appealed to the Appellate Division, Second Department. That court unanimously affirmed the conviction. See People v. Fama, 622 N.Y.S.2d 732 (2d Dep't 1995). Fama then applied for leave to appeal to the New York Court of Appeals, and Judge Ciparick denied his application without prejudice to renewal upon substitution of counsel. People v. Fama, 655 N.E.2d 712 (N.Y. 1995). Fama acquired new counsel, resubmitted his application, and, on December 11, 1995, Judge Ciparick denied leave to appeal. People v. Fama, 663 N.E.2d 1260 (N.Y. 1995).


On October 3, 1996, Fama petitioned for a writ of habeas corpus in the United States District Court for the Eastern District of New York. While that petition was pending, Fama's counsel requested, and the district court granted, an application to suspend the case in order to avoid, by a motion for a writ of error coram nobis in the Appellate Division, any defenses based on possible non-exhaustion of claims. The Appellate Division denied the writ on July 28, 1997. People v. Fama, 663 N.Y.S.2d 992 (2d Dep't 1997).

In addition, acting pro se, Fama wrote to the district court requesting that his habeas proceeding remain on the suspense calendar while he moved in state court to vacate the judgment of his conviction. Defense counsel did not adopt the letter, and the district court made no response to it. Fama nonetheless formally moved in state court to vacate the judgment, alleging, among other things, newly discovered evidence

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regarding the unreliability of the testimony of both Tighe and Russo. This motion was denied as was leave to appeal to the Appellate Division. Subsequently, on July 12, 1999, Fama moved to amend his habeas petition in the district court to add the claims that he had raised in his motion to vacate. He also requested an evidentiary hearing. The district court denied the hearing, denied leave to amend the petition, and, finally, denied the petition itself. See Fama v. Commissioner of Corr. Servs., 69 F.Supp.2d 388 (E.D.N.Y. 1999).

In denying, as untimely, Fama's motion for leave to amend the petition, the district court relied on the one-year statute of limitations for habeas petitions established by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244. The court held that one year should be the "relevant guideline in determining whether petitioner has exercised due diligence in pursuing the additional claims." Id. at 393; see 28 U.S.C. § 2244(d)(1)(D) (imposing one-year statute of limitations on filing of petitions from latest of several dates, including "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence"). Finding that the evidence of the unreliability of both Tighe's and Russo's testimony had been known for several years prior to the motion to amend, the court concluded that the application was untimely.3

In denying the petition for habeas corpus, the district court found that most of Fama's claims, including his claim regarding the sufficiency of the evidence on depraved indifference, were not exhausted. It also held that both the sufficiency of the evidence claim and the fair trial claim were procedurally barred. The court reached the merits on two claims that are not before us on this appeal and found them to be without substance. See Fama, 69 F.Supp.2d at 396-97.

As stated above, this court then granted Fama's motion for a certificate of appealability to determine whether: (1) the evidence of depraved indifference murder was legally sufficient; (2) Fama was denied a fair trial because of publicity and juror intimidation; (3) the district court erred when it rejected, on the ground of untimeliness, appellant's motion to amend; and (4) the district court correctly ruled that the claims appellant raised on direct appeal are procedurally barred.


We review the district court's denial of the petition de novo. See Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997). We review the denial of leave to amend for abuse of discretion, see Peterson v. Insurance Co. of North America, 40 F.3d 26, 31 (2d Cir. 1994), but "[i]f that denial was based on a legal interpretation . . . we review the decision de novo." Malesko v. Correctional Servs. Corp., 229 F.3d 374, 383 (2d Cir. 2000).

A. Exhaustion of the Insufficiency of the Evidence Claim

Prior to bringing a petition for habeas corpus pursuant to 28 U.S.C. § 2254, petitioner must exhaust the remedies available in state court or demonstrate that "there is an absence of available State corrective process [or] [that] circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). To have exhausted claims in state court, petitioner must have "fairly presented" each federal claim to the highest state court. Picard v.

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Connor, 404 U.S. 270, 275 (1971).

The district court in the...

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