Bisnauth v. Morton

• Decision Date: 09 August 2021
• Docket Number: 18-CV-4899(JFB)
• Parties: RUDOLPH BISNAUTH, Petitioner, v. ROBERT MORTON J.R, Superintendent of the Downstate Correctional Facility Respondent
• Court: U.S. District Court — Eastern District of New York

RUDOLPH BISNAUTH, Petitioner, v. ROBERT MORTON J.R, Superintendent of the Downstate Correctional Facility Respondent

No. 18-CV-4899(JFB)

United States District Court, E.D. New York

August 9, 2021

Petitioner is proceeding pro se.

Respondent is represented by Car en C. Manzello, Assistant District Attorney, for Timothy Sini, District Attorney of Suffolk County

MEMORANDUM AND ORDER

Joseph F. Bianco United States Circuit Judge

Joseph F, Bianco, Circuit Judge (sitting by designation):

Rudolph Bisnauth ("petitioner"), proceeding pro se, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York state court on four grounds. On January 21, 2011 following a jury trial, the jury convicted petitioner of murder in the second degree. See N.Y. Penal Law § 125.25(2). Petitioner was thereafter sentenced to a term of imprisonment of twenty-five years to life.

In his instant habeas petition, petitioner challenges his conviction as unconstitutional because: (1) the State of New York (the "State") wrongfully impeached its own witnesses in violation of N.Y. Crim. Proc. Law. § 60.35; (2) the state court wrongfully denied petitioner's motion for a missing witness charge; (3) his conviction was both legally insufficient and against the weight of the evidence; and (4) the State suppressed evidence in violation of Brady v Maryland, 373 U.S. 83 (1963). (ECF No. 1 at 5-10.)

For the reasons discussed below, petitioner's request for a writ of habeas corpus is denied in its entirety.

I. Background

On January 21, 2011, a jury in the New York State Supreme Court, Suffolk County, found petitioner guilty of second-degree murder in violation of N.Y. Penal Law § 125.25(2). Following his sentencing, petitioner unsuccessfully moved the state court to vacate the judgment of conviction and unsuccessfully pursued a direct appeal, as well as a motion under N.Y. Crim. Proc, Law §440.10(1)(h), through the New York state courts. His petition to this Court followed.

A. The Trial and Sentencing

Over the course of petitioner's trial, the State presented evidence implicating petitioner in the murder of Jerry Armstrong, including the testimony of over a dozen fact witnesses and multiple experts. The evidence established that, on the morning of June 1, 2009, a verbal dispute arose between Timothy Rich and his partner Keana Byrd, the daughter of the victim, Jerry Armstrong. Following the verbal altercation, the dispute escalated, with members of the Byrd/Armstrong family and the Rich family proposing a fistfight. Rather than a fistfight, however, the inter family argument ended that night in the shooting death of Jerry Armstrong by Timothy Rich's friends, Michael McKenzie and petitioner.^[1]

1. The Verbal Dispute

On the morning of June 1, 2009, Keana Byrd spotted Timothy Rich, the father of her daughter, driving his car with another woman in the front passenger seat. (A. 33-36.)^[2] After following Timothy Rich and noticing that this woman was seven-months' pregnant, Ms. Byrd called Timothy Rich and threatened to cancel the car's insurance, which was registered and insured by Ms. Byrd. (A. 36-37, 361-64.) According to Ms. Byrd, Timothy Rich then threatened her, stating that he and his sister would beat her up if she canceled the insurance. (A. 38, 363-64)

Following the call, Timothy Rich and his sister drove to Ms. Byrd's house around 5 p.m., and his sister "mushed" Ms. Byrd in the face. (A. 39-41, 363-65.) The altercation did not escalate further because Timothy Rich grabbed his sister and because Ms. Byrd left her own house to travel to her sister's house at 119 Irving Avenue in Wyandanch, New York. (A. 41-42, 364-65.) Timothy Rich and his sister left Ms. Byrd's house around that same time as well. (A. 365-66.)

At her sister's house, Ms. Byrd told her father, Jerry Armstrong, about the argument with Timothy Rich. (A. 43.) At her father's request, Ms. Byrd called Timothy Rich and the parties agreed that her father would retrieve the license plates for the car after the weekend and that Timothy Rich could continue to see his daughter. (A. 45-46, 367-69.) According to Timothy Rich, that phone call resolved the dispute. (A. 368.)

2. The Proposed Fistfight

Shortly after the phone call, however, several individuals who had learned about the dispute, including Ms. Byrd's brothers Jerry "Montreal" Byrd and Darryl Byrd, sought out and located Timothy Rich in front of his home and attempted to fight with him. (A. 90-91, 145, 369-70.) Timothy Rich, however, fled in his car to his sister's house at 29 Parkway Boulevard in Wyandanch, while Montreal Byrd and others returned to 119 Irving Avenue at around 9 p.m. (A. 90-91, 118, 146, 370-71.)

At 29 Parkway Boulevard, Timothy Rich explained to his friends about the altercations with the Byrd/Armstrong family earlier that day. (A. 238-40, 300-01, 371-72.) Among those present were petitioner, his cousin Shawn Bisnauth, McKenzie, Dajaun Pottur, and Anthony Rich. (A. 237-38, 298-300, 370-72.) Timothy Rich thereafter called Ms. Byrd and said he would fight her brother, Montreal. (A. 48-49.) However, after driving to 119 Irving Avenue and realizing that his daughter was present, Timothy Rich returned to 29 Parkway Boulevard and phoned Ms. Byrd, calling off the fight. (A. 93-94, 376-77.) Montreal Byrd joined the call and accused Timothy Rich of being afraid to fight. (A. 93-94, 377.) Both men then challenged each other to fight at the other's location. (A. 377.)

3. The Shooting and Aftermath

After Montreal Byrd left the call, Timothy Rich warned Ms. Byrd that his friends were "going to come shoot the house up" and to get the kids out of the house. (A. 378; see also A. 53-54.) Petitioner, his cousin Shawn Bisnauth, McKenzie, Pottur, and Anthony Rich then drove to 119 Irving Avenue at around 11:30 p.m. to "shoot. . . up" the house. (A. 169, 241-42, 301-02, 378-79.) Once at 119 Irving Avenue, petitioner, McKenzie, and Anthony Rich exited the car and approached the residence, with McKenzie carrying a handgun. (A. 242-45, 303-05.) Shawn Bisnauth and Pottur remained in the car. (A. 264.) According to Anthony Rich, as they walked into the front yard, McKenzie yelled "what's popping?" and started shooting at a small crowd of people standing in front of the house. (A. 305, 308.)

One of the bullets hit and ultimately killed Jerry Armstrong-Ms. Byrd's father. (A. 59-61, 97-99, 121-22, 150.)

Both Anthony Rich and Pottur testified that there were two sets of gunshots. (A. 267, 308-09.) An off-duty police officer who lived nearby also testified that she heard two sets of gunshots. (A. 169-70.) Specifically, the officer heard three shots and a pause, followed by seven or eight additional shots. (A. 169-70.) Several Byrd/Armstrong family members and friends also reported two sets of gunshots. (A. 55, 59, 97-99, 119-22.)

According to Anthony Rich, there were two sets of gunshots because the gun jammed-and McKenzie in fact said, "[S]h*t the gun jammed." (A. 309.) Anthony Rich further testified that he witnessed petitioner and McKenzie tussle with the gun-"pulling the gun back and forth"-until the gun unjammed. (A. 309-10.) Pottur similarly testified that, after the first round of gunfire, he heard petitioner and McKenzie arguing and "assumed" that the gun had jammed. (A. 245, 267, 281-85.)

Although Anthony Rich saw McKenzie take the gun after it was unjammed, he was unclear as to who fired the second set of gunshots, (A. 266, 309-12.) When petitioner and McKenzie returned to the car, however, McKenzie carried the gun and announced that he had "had" the victim. (A. 245, 275.)

After the shooting, the men returned to an abandoned house at 18 Parkway Boulevard and recounted the event. (A. 257-58, 277-78.) According to Timothy Rich, McKenzie said that he shot the gun, and petitioner said that he unjammed the gun, that a shot fired in the process, and that he fired off another shot before McKenzie "snatched the gun" back. (A. 382-83.)

The follow day, according to Timothy Rich's girlfriend (Kimberly Daniels), petitioner again stated that he took the gun from McKenzie and unjammed it before McKenzie fired again, (A. 348.) In addition, Wilfred Stevens, who had a relationship with petitioner's mother, testified that petitioner said that he was "involved in a shooting" where he "sprayed up [a] house" and asked Stevens, "[H]ow long does it take for gun powder to come off your hand?" (A. 430-31.) Stevens also testified that petitioner said he cleaned and disposed of the gun. (A. 431.)

4. The Police Investigation

Following the shooting, police recovered ten shell casings and one unfired cartridge from near the property at 119 Irving Avenue. (A. 479-83, 597-98.) A bullet was also recovered from Jerry Armstrong's body. (A. 231, 577.)

According to the State's forensics expert, all of the bullets and casings were ejected from the same gun which, based on a distinctive firing pin mark, made it likely that the gun was a nine-millimeter, semi-automatic pistol known as a Glock. (A. 598-602, 605.) He further testified that an unfired cartridge, like the one recovered on the property, could be ejected from the gun in order to clear a jam. (A. 625.)

During their testimony, Anthony Rich and Pottur explained that McKenzie had permanently "disabled" his right hand in a childhood car accident. (A. 242-43, 314.) A police detective corroborated this evidence, similarly testifying that, following McKenzie's arrest, McKenzie's right hand could not be scanned for fingerprints because it could not lie flat. (A. 551-54.) According to the State's forensics expert, it would be "virtually impossible" to clear a jam with one hand. (A. 625-26.)

5. The Defense Case

In response to the State's case, pe...