Berger v. Stinson
| Decision Date | 01 May 2000 |
| Docket Number | No. 97-CV-6150L.,97-CV-6150L. |
| Citation | 97 F.Supp.2d 359 |
| Parties | Richard G. BERGER, Petitioner, v. James D. STINSON, Superintendent of Great Meadow Correctional Facility, Respondent, and Howard R. Relin, Intervenor-Respondent. |
| Court | U.S. District Court — Western District of New York |
Robert M. Simels, Robert M. Simels, P.C., New York City, for Richard G. Berger, petitioner.
Robert Mastrocola, Howard R. Relin, District Attorney of Monroe County, Rochester, NY, for Howard R. Relin, District, Attorney of Monroe County, intervenor-plaintiff.
Howard R. Relin, Monroe County District Attorney, Rochester, NY, for Howard Relin, intervenor-defendant.
DECISION AND ORDER
Petitioner, Richard Berger, while confined at Great Meadow Correctional Facility filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Berger was convicted on June 13, 1986, following a jury trial in Supreme Court, Monroe County, of Murder in the Second Degree. N.Y.Penal L. § 125.25(1). This charge arose out of the shooting death of James Siggelow in 1985. Berger was sentenced to a term of imprisonment of twenty-five years to life.
Berger appealed his conviction to the Appellate Division, Fourth Department, alleging ineffective assistance of counsel and an evidentiary error on the part of the trial court. The Appellate Division affirmed Berger's conviction. People v. Berger, 129 A.D.2d 971, 514 N.Y.S.2d 284 (1987). The New York Court of Appeals denied leave to appeal. People v. Berger, 70 N.Y.2d 642, 518 N.Y.S.2d 1034, 512 N.E.2d 560 (1987).
In June 1994, Berger filed a motion in the trial court to vacate his conviction under N.Y.C.P.L. § 440.10. The ground for relief asserted in that motion was that the prosecutor had failed to disclose to Berger the criminal record of James Ryan, who had given eyewitness testimony at Berger's trial. Berger alleged that he had just recently been made aware of Ryan's record, which included several convictions of various offenses as well as an outstanding warrant for his arrest in Florida, in the course of defending against a second murder prosecution involving a different victim, Patrick Vitarelli.1
In a letter dated October 6, 1994, several weeks after the trial court heard oral argument on petitioner's § 440.10 motion, Berger's attorney informed the court that during the course of the Vitarelli murder case, the prosecution had provided him with the statement of one Richard Lindsay. In that statement, which was dated September 23, 1986—over three months after Berger's conviction in the Siggelow case—Lindsay stated that during a conversation he had had with Ryan, Ryan told him that "Berger got a chance to see [Ryan] to a job, saying that he had shot James Siggelow."2 Berger's attorney stated in his letter that he would "utilize this further evidence to demonstrate at any hearing ordered by this Court, that [the prosecutor] with intent to violate Mr. Berger's constitutional, statutory, and prevailing principles of law [sic] in 1985, knew of exculpatory material beyond the criminal record of James Ryan which he purposefully did not disclose to the defense." Intervenor's Answer, Appendix ("App.") Y.
In a Decision and Order filed on October 18, 1994, Justice Raymond E. Cornelius denied Berger's motion. First, Justice Cornelius found that the New York Criminal Procedure Law imposed a duty upon a prosecutor, at the time of trial, to reveal a record of conviction of a witness, or the existence of pending criminal charges against a witness, only if that information was known to the prosecution. App. AA at 5. Justice Cornelius went on to find that there was no basis in the evidence on which to believe that the prosecutor had been aware of Ryan's criminal record at the time of Berger's trial.
Justice Cornelius next found that even if the prosecutor had been aware of Ryan's record at the time of the trial, Berger's motion should still be denied. After analyzing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and other Supreme Court and New York Court of Appeals cases addressing the duty of a prosecutor to disclose information favorable to the defense, Justice Cornelius ruled that Berger would be entitled to a new trial only if there were a "reasonable possibility" that disclosure of Ryan's criminal record would have led to a different result in Berger's trial. App. AA at 9. Under this standard, he stated, the undisclosed evidence would be considered material "only if it `create[d] a reasonable doubt that did not otherwise exist.'" Id. (quoting People v. Vilardi, 76 N.Y.2d 67, 73, 556 N.Y.S.2d 518, 555 N.E.2d 915 (1990)).
Justice Cornelius (who presided over Berger's trial) then found that there was "no reasonable possibility that disclosure and use of the criminal record of Mr. Ryan would have created a reasonable doubt, and therefore, resulted in a different outcome." Id. at 10. Justice Cornelius recounted the "overwhelming" evidence of Berger's guilt, and also noted that in Berger's trial in the Vitarelli murder case, Berger's counsel "fully utilized the criminal record of Mr. Ryan for purposes of impeachment, but nonetheless, a jury ... found the Defendant guilty of that crime." Id. at 11.
As for Lindsay's statements, a cover letter addressed to counsel from Justice Cornelius's law clerk stated that Berger's attorney's October 6, 1994 letter to the court had not been "considered by the Court in reaching its decision." Id. The letter did not state why.
On February 23, 1995, the Appellate Division denied permission to appeal from Justice Cornelius's decision. The Court of Appeals dismissed Berger's application to appeal on March 28, 1995. People v. Berger, 85 N.Y.2d 906, 627 N.Y.S.2d 329, 650 N.E.2d 1331.
Berger then filed his habeas petition in this court. His single claim for relief is based upon the prosecutor's alleged Brady violation, although there are three aspects to this claim. The first relates to Ryan's criminal record, and the second to Lindsay's statements. The third, which is asserted here for the first time in any court, state or federal, is that the prosecution also failed to disclose a statement made to police officers by another person, David Leecy. In that statement, the copy of which submitted by petitioner is neither dated3 nor signed, Leecy stated that on May 16, 1985, Ryan told him that Ryan, Berger and Lindsay had gone out for coffee the night before. Leecy continued that
Jim [Ryan] said that heard Rick [Berger] and Rick [Lindsay] whispering about trying to get somebody to make a phone call to get him out of the house. Jim then got into his car with the two Ricks and the two Ricks were saying how Rick Lindsay was to fire bomb Ziggys car and that Rick Berger would shoot him. Jim said the phone call to get the person out of the house was Ziggy. Jim didn't say any more after that. I never told anybody what Jim Ryan had told me, because I knew that Rick Berger wouldn't like that. Rick Berger had pointed a gun at me while we were in Florida [in September 1994] and said that if I fucked him over he would kill me.
Affidavit of Robert M. Simels, Esq. (Docket Item 3) Ex. B.
Berger's attorney states that he obtained Leecy's statement "[d]uring the course of another litigation involving the petitioner and the same prosecution office...." Simels Aff. ¶ 4. He states that Ryan's alleged statements to Leecy that Ryan had been with Berger and Lindsay on the night of May 15, and that Lindsay had planned to "fire bomb" the victim's car, were inconsistent with Ryan's testimony. In his trial testimony, Ryan did not mention Lindsay's presence that night. He testified only that he was with Berger when Berger killed Siggelow.4
As a general rule, a federal court may not consider the merits of a state prisoner's habeas petition until the petitioner has exhausted the state remedies available to him. 28 U.S.C. § 2254(b). In Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982), the Supreme Court adopted a "total exhaustion" rule, holding that a petition containing both exhausted and unexhausted claims (a "mixed petition") should be dismissed in its entirety, "leaving the prisoner with the choice of returning to state court to exhaust his claims or of amending or resubmitting the habeas petition to present only exhausted claims to the district court." In accordance with that holding, the Second Circuit has stated that "[p]assing on the merits of claims in a habeas petition containing unexhausted claims runs counter to Rose v. Lundy...." Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 125 (2d Cir.1995), cert. denied, 520 U.S. 1106, 117 S.Ct. 1112, 137 L.Ed.2d 313 (1997).
In 1996, however, Congress enacted the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, which amended the habeas corpus statutes in a number of ways, two of which are particularly relevant in the instant case. First, as amended by AEDPA, 28 U.S.C. § 2244(d) provides that
A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run 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...
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