Bower v. Walsh

• Decision Date: 31 March 2010
• Docket Number: No. 06-CV-4851,06-CV-5515.,06-CV-4851
• Parties: Ronald J. BOWER, Petitioner,v.James J. WALSH, Superintendent of the Sullivan Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

703 F.Supp.2d 204

Ronald J. BOWER, Petitioner,v.James J. WALSH, Superintendent of the Sullivan Correctional Facility, Respondent.

Nos. 06-CV-4851, 06-CV-5515.

United States District Court,

E.D. New York.

March 31, 2010.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jeremy Leib Goldberg, Jeremy L. Goldberg, Esq., Hempstead, NY, for Petitioner.

New York State Attorney Generals Office, Douglas R. Noll, Andrew Fukuda, Nassau County District Attorney's Office, Mineola, NY, for Respondent.

MEMORANDUM & ORDER

TOWNES, District Judge:

INTRODUCTION

Petitioner Ronald Bower (“Bower”), who is represented by counsel in these proceedings, was convicted in state court for committing two sexual assaults, one in Nassau County and another in Queens County. He seeks a writ of habeas corpus for his Queens convictions (06-CV4851) and his Nassau convictions (06-CV-5515) pursuant to 28 U.S.C. § 2254. His principal argument is that the prosecution violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by failing to inform the defense that another individual, a police officer named Michael Perez, was arrested and prosecuted for committing two similar sexual attacks while Bower was incarcerated. The respondent has moved to dismiss the petitions as untimely under the one-year statute of limitations in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). For the reasons set forth below, the motions are granted, and the petitions are dismissed as untimely.

FACTS

A. Pattern # 1/91

In 1991, members of the Queens Sex Crimes Squad (“QSCS”) in the New York City Police Department (“NYPD”) noticed a pattern of similar sexual assaults, beginning with an attack that occurred in June 1990. It was believed that these attacks could have been committed by the same individual due to basic similarities in the witness accounts and physical descriptions. (Pet. Exh. A, Vol. 11(a), at 105-08.) Therefore, the attacks were investigated as a pattern, referred to by the NYPD as “Pattern # 1/91.” (Pet. Exh. C.) The QSCS learned that the Nassau County Police Department was also investigating attacks that appeared to fit the same pattern. (Pet. Exhs. C, M.) Bower was indicted for one such assault that occurred in Nassau County (“Incident A”) and two Pattern # 1/91 attacks in Queens (“Incident B” and “Incident C”). He was tried for Incident A in Nassau County and was convicted of all crimes stemming from this incident. He was tried in Queens for Incidents B & C, but his first trial ended with a hung jury. He was retried and convicted for perpetrating Incident C, but was acquitted for Incident B.

B. Incidents A-C

Incident A occurred on December 23, 1990 at approximately 2:00 a.m. in Nassau County, close to the Queens-Nassau border. The victim, E.E., had left a nightclub and ate breakfast at a diner located on Union Turnpike. (Pet. Exh. A, Vol. 19(c), at 303-04.) After she entered her car in the diner's parking lot and turned on an interior light, a man ran up to her, pointing a gun. ( Id. at 305.) When she screamed, he threatened to kill her if she did not stop. ( Id.) He forced his way into the car and began to drive away with the victim in the passenger scat. ( Id. at 306.) During the car ride, the victim offered to give him her wallet, but he declined to take it, and said, “Shut up or I'll kill you.” ( Id.) After entering a residential area, the perpetrator began to ask the woman personal questions about her name, age, and marital status. ( Id. at 307.)

The man then parked the car and kissed E.E. on her mouth. He pulled up her dress and bra and lowered her pantyhose and panties. ( Id. at 308.) He fondled her breast, touched her vagina with his fingers and mouth, and penetrated her vagina with his finger. ( Id. at 309.) He asked if she liked what he was doing and forced her to perform oral sex on him for approximately five minutes before ejaculating in her mouth. She spit the semen into a tissue and threw it out of the window. He then began driving back to the diner. ( Id. at 310.) He observed that E.E. was crying and said: “Why are you crying? I didn't hurt you. You didn't hurt me, why should I hurt you?” ( Id.) She asked him why he attacked her and he replied: “What's the matter, don't you think you're good enough for anyone?” ( Id.) When he reached a street in back of the diner's parking lot, he took the keys out of the ignition, wiped down the steering wheel with his sleeve, put the keys on the hood of the car, and left the scene. ( Id. at 311.)

In a police statement, E.E. described her attacker as a white male, who was between 25 to 30 years old, approximately 5'7? tall, and had a “heavy, stocky build.” (Pet. Exh. A, Vol. 15, at 62-63.) She said that the man had a full mustache and dark wavy hair. ( Id.) She described him as wearing a grey hooded sweatshirt and a dark leather jacket. ( Id. at 62.) At trial, she also said that the man was wearing chinos or jeans. (Pet. Exh. A, Vol. 19(c), at 312, 335). She described the gun as looking like a .38 caliber weapon that was “black or a gun metal grey, very dark.” ( Id. at 306.) She said that it had a small barrel, that she could see the chamber, and referred to it as a “Saturday night special.” ( Id. at 305-06.)

Incident B took place on January 29, 1991 at about 11:00 p.m. in the Bellerose section of Queens. Two young women, M.R. and D.B., left a pool hall, stopped at a deli on Union Turnpike, and walked to their friend's house, which was nearby. (Pet. Exh. A, Vol. 10, at 72-73, 147-48.) They testified that as they approached the front door, a man walked up to them, pointed a gun at M.R., and threatened to shoot her if D.B. did not go with him. (Pet. Exh. A. Vol. 10, at 74-75, 154-58.) He walked them down a driveway and forced them up against a wall below a window. (Pet. Exh. A, Vol. 10, at 76, 154-55.)

M.R. said that they did not have any money, but offered the man the jackets the women were wearing, which he did not take. (Pet. Exh. A, Vol. 10, at 76, 156.) Then he walked them out into the street and down another nearby driveway behind a home. (Pet. Exh. A, Vol. 10, at 85-88, 156-62.) While they were up against a wall, he began to fondle D.B.'s breast. (Pet. Exh. A, Vol. 10, at 91-96, 165.) He waved the gun at them and told M.R. to shut up when she spoke. (Pet. Exh. A, Vol. 10, at 95-96, 164-66.) He then fumbled around with D.B.'s belt before he left, telling them not to tell anybody, that he knew what house they were going to, and to wait five minutes before leaving. (Pet. Exh. A, Vol. 10, at 96-97, 167-68.)

M.R. testified that she told the police that the man had brown hair, brown eyes, a “round face,” and a mustache. (Pet. Exh. A, Vol. 10, at 99-101.) She described him as “built” and said that he had a “bigger frame” and looked like he “worked out.” ( Id.) She said that he was about 5'6 to 5'8? tall and wore a “dark hooded sweatshirt and a light colored jacket.” (Pet. Exh. A, Vol. 10, at 77.) In a police form, D.B. is described as telling the police that the man had a mustache, brown eyes, and medium length brown hair and was white, between 28 to 36 years old, and 5'7? tall. (Pet. Exh. G.) At trial, she described him as 5'6? to 5'8? tall and said that he had a “round face,” a “heavy build,” and a brown mustache. ( Id.) She stated that he was wearing dark clothing, a baseball cap turned backward, and a hooded sweatshirt. (Pet. Exh. A, Vol. 10, at 171.) Both M.R. and D.B. described the gun used in the incident as “small and silver.” (Pet. Exh. A, Vol. 10, at 101, 171-72.)

Incident C occurred at approximately 3:00 a.m. on May 7, 1991, Bower's thirtieth birthday, in a Queens pedestrian tunnel at the intersection of Union Turnpike, Austin Street, and Interborough Parkway. Two young women, J.C. and J.S., testified that they had left a local cafe and were walking through the tunnel when a man ran up behind them, pointing a gun at them. (Pet. Exh. A, Vol. 11(a), at 9, 16-17, 22; Pet. Exh. A, Vol. 11(b), at 236, 244.)

He ordered the women not to scream and put them up against the wall. (Pet. Exh. A, Vol. 11(a), at 23; Pet. Exh. A, Vol. 11(b), at 244-45.) He asked for money or jewelry and J.S. offered to give the man some change she had in her pocket and her watch, but he did not accept the change or the watch. (Pet. Exh. A, Vol. 11(a), at 29; Pet. Exh. A, Vol. 11(b), at 246.) He then made them sit down on the exit stairwell and forced J.S. to perform oral sex on him. (Pet. Exh. A, Vol. 11(a), at 31-32; Pet. Exh. A, Vol. 11(b), at 247.) He told J.S. that he would kill J.C. if she did not comply. (Pet. Exh. A, Vol. 11(a), at 33; Pet. Exh. A, Vol. 11(b), at 247.) After a few minutes, J.C. saw his eyes roll back and he ejaculated, (Pet. Exh. A, Vol. 11(a), at 35-36; Pet. Exh. A, Vol. 11(b), at 248.) He ordered J.S. to “swallow it” and she started crying. (Pet. Exh. A, Vol. 11(b), at 248.) He told them to wait there five minutes and threatened to return to kill them if he heard any noise. (Pet. Exh. A, Vol. 11(a), at 37; Pet. Exh. A, Vol. 11(b), at 248.)

According to a police form prepared on the date of the incident, J.C. described her attacker as having a “wandering left eye.” (Pet. Exh. I.) She also said that he was between 24 to 25 years old, was 5'8? tall, weighed 150 pounds, and had a mustache, dark eyes, and wavy black hair. She described the gun as a small, silver handgun. ( Id.) At the first trial, J.C. testified that the man had “a lazy left eye.” (Pet. Exh. A, Vol. 4(d), at 303.) At the second trial, she described his build as “stocky.” (Pet. Exh. A, Vol. 11(a), at 39). She also said that he was wearing a black leather jacket, “acid dyed” jeans, sneakers, and gloves, which looked like “racing gloves” or “driving gloves.” ( Id. at 25-26, 39, 44.)

A police form states that J.S. described the man as 25 years old, 5'8? tall, and weighing 160 pounds. She said that he had “brown eyes (right eye crossed),” black hair, and a mustache. (Pet. Exh. J.) The form also...