Buari v. Kirkpatrick

• Decision Date: 17 November 2010
• Docket Number: No. 09 Civ. 9516 (VM).,09 Civ. 9516 (VM).
• Citation: 753 F.Supp.2d 282
• Parties: Calvin BUARI, Petitioner,v.Robert KIRKPATRICK, Superintendent, Wende Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

753 F.Supp.2d 282

Calvin BUARI, Petitioner,

v.Robert KIRKPATRICK, Superintendent, Wende Correctional Facility, Respondent.

No. 09 Civ. 9516 (VM).

United States District Court, S.D. New York.

Nov. 17, 2010.

Robert J. Boyle, Law Office of Robert J. Boyle, New York, NY, for Petitioner.Rither Alabre, Bronx District Attorney Office, Bronx, NY, for Respondent.

DECISION AND ORDER

VICTOR MARRERO, District Judge.

Petitioner Calvin Buari (“Buari”), currently incarcerated at Wende Correctional Facility in New York (“Wende”), brings this petition (the “Petition”) seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 against Robert Kirkpatrick, the superintendent of Wende (“Respondent”). In 1995, Buari was convicted in New York Supreme Court, Bronx County (the “Trial Court”), of two counts of murder in the second degree, in violation of New York Penal Law (“NYPL”) § 125.25(1). Buari was sentenced to two consecutive indefinite prison terms of twenty-five years to life. In 2003, Buari moved pursuant to New York Criminal Procedure Law (“CPL”) § 440.10 to vacate the judgment. Following a hearing, the Supreme Court, Bronx County (the “Motion Court”) denied Buari's motion. On direct appeal, the Appellate Division, First Department (“Appellate Division”) (together with the Motion Court, the “State Courts”) unanimously affirmed the Motion Court's decision.

In his Petition, Buari asserts several federal constitutional claims as grounds for habeas relief. First, Buari argues that he was denied his right to a fair and impartial jury when, prior to sentencing, the sentencing court (“Sentencing Court”) unreasonably failed to permit an inquiry concerning whether a juror had concealed his familial relationship with the Petitioner in order to serve on the jury, and further that he was denied due process of law when the Motion Court declined to hold a post-judgment hearing on that issue over seven years later. Second, Buari contends that he was denied due process of law when the Motion Court refused to grant him a new trial based upon the post-judgment confession of one prosecution witness and the recantation of another. Third, Buari argues that the false testimony of a third prosecution witness, and the prosecution's failure to correct that witness's testimony, mandates that a new trial be ordered. Finally, Buari argues that the cumulative effect of the errors alleged above denied him a fair trial and due process of law.

For the reasons discussed below, the Court DENIES Buari's Petition.

I. BACKGROUND ¹

A. FACTS

Buari's conviction arises out of the murder of brothers Elijah and Salhaddin Harris (the “Harris Brothers”) on the evening of September 10, 1992. The Harris Brothers were shot and killed while they sat in their car parked near the intersection of East 213th Street and Bronxwood Avenue in the Bronx, New York. At or near the scene at the time of the shooting were Buari, as well as John Parris (“Parris”), Kintu Effort (“Effort”), Kenya Holder (“Holder”), Jerry Connor (“Connor”), Clarence Seabrook (“Seabrook”), Brian Johnson (“Johnson”), Dwight Robinson (“Robinson” or “Dwight Robinson”) and his brother Peter Robinson (“Peter Robinson”). All of these individuals knew each other, and Effort, Seabrook, Johnson and Dwight Robinson all sold drugs in the vicinity, with Dwight Robinson working for Buari. With the exception of Parris, all of these individuals witnessed the incident.

Buari was subsequently arrested in March 2003, charged with the murders based on an eyewitness account, and released on bail. After Buari's release, he telephoned Dwight Robinson and told him to tell Buari's attorney that, when the shooting occurred, Robinson and other witnesses observed a brown car circle the block while Buari merely sat nearby. This request was made to Effort, Connor, Seabrook and Peter Robinson, as well, and all five men complied. However, after a series of shootings in the vicinity in 1995, including ones in which Buari, Parris, Peter Robinson and Seabrook's brother were all victims, and in which Peter Robinson and Seabrook's brother were killed, Dwight Robinson informed the police that he, Connor, and Seabrook witnessed Buari shoot the Harris Brothers. At trial, Dwight Robinson, Effort, Connor, Seabrook, Johnson, and Holder all testified to witnessing Buari commit the murders.

B. PROCEDURAL HISTORY1. The Trial and Sentencing

Buari was convicted by a jury on December 5, 1995 of two counts of murder in the second degree (NYPL § 125.25(1)). At trial, during defense counsel's cross-examination of Connor, Connor testified that he was once arrested for marijuana possession, which charge was later dismissed, and once received a ticket for drug possession. At the time of Connor's testimony, the prosecution was unable to locate Connor's state criminal case file, but it disclosed Connor's date of birth and Social Security number and informed Buari that Connor had no criminal convictions. The prosecution subsequently produced Connor's rap sheet, and Buari did not re-call Connor as a witness.

After Buari's conviction, but before sentencing, Buari's trial counsel, Kenneth Schreiber (“Schreiber”), requested an adjournment from the Sentencing Court, stating that he had been informed, post-verdict, by two of Buari's family members, that juror Thomas Jeffrey (“Jeffrey”) was related to Buari through Jeffrey's estranged wife. Schreiber requested additional time in order to determine whether a motion to set aside the verdict for juror bias under CPL § 330.30 (a “§ 330 Motion”) should be filed. In support of his request, Schreiber stated that Jeffrey had informed a defense investigator that he was unaware of his relationship with Buari until after trial.² Nevertheless, Schreiber sought additional time in order to determine whether Jeffrey, who was characterized as having a hostile relationship with his wife, had actually been aware of the relationship during the trial, dishonestly concealed it and harbored animus toward Buari.³ The Sentencing Court denied Buari's request for an adjournment, and noted that Buari had preserved his objection for purposes of a post-conviction motion. It then sentenced Buari to two consecutive indeterminate terms of imprisonment of twenty-five years to life.

2. The CPL § 440 Motion

On November 14, 2003, more than seven years after the Sentencing Court denied Buari's request for a pre-sentencing adjournment, Buari, through counsel, filed a motion pursuant to CPL § 440.10 (the “§ 440 Motion”) to vacate his conviction. Buari blamed the long delay on his inability to obtain appointed appellate counsel until 2002.

Buari asserted three claims in his § 440 Motion. First, he argued that the Sentencing Court erred in failing to conduct a hearing regarding whether Jeffrey deliberately concealed his familial relationship with Buari. As Jeffrey had passed away in 2001, Buari contended that the error could not be rectified, and that, therefore, the verdict must be vacated. In support of this claim, Buari submitted affidavits from: himself, stating that he was unaware of his relationship with Jeffrey until after trial; his mother and aunt, stating that their father is the brother of Jeffrey's estranged wife, that Buari lived in Jeffrey's home for a year from age four to five ( i.e., twenty-five years earlier), and that they noticed Jeffrey on the jury during the trial and informed Schreiber; Schreiber, whose testimony contradicted Buari's mother's and aunt's testimony, in that Schreiber stated that he was not informed of the relationship between Jeffrey and Buari until after the verdict, one week before sentencing; ⁴ and a defense investigator who interviewed Jeffrey after the verdict, and who stated that Jeffrey had informed the investigator that Jeffrey was unaware during the trial of his relationship with Buari.

Second, Buari argued in his § 440 Motion that the prosecution failed to disclose that Connor's marijuana “ticket” had been converted into a pending criminal charge, allowed Connor to perjure himself about the matter, and then knowingly relied on Connor's perjured testimony during summation when it stated to the jury that Connor had no criminal convictions or criminal record of any kind.

Finally, Buari argued that newly discovered evidence demonstrated that Dwight Robinson, rather than Buari, had murdered the Harris Brothers (the “New Evidence Claim”). The “new evidence” to which Buari pointed included Robinson's conviction for a murder committed in 1997 in a similar fashion and at the same location as the murders of the Harris Brothers, and supplemental affidavits from Robinson and Effort filed by Buari. In his affidavit, Robinson recanted his trial testimony incriminating Buari and swore that he, not Buari, had committed the murders for which Buari was convicted. Robinson also stated that he lied at trial because, at the time, he had been involved in a dispute with Buari over drug turf. Similarly, Effort also recanted his trial testimony, and swore that neither he nor Buari were involved in the murders. Effort blamed his false testimony at trial on his fear that, if he refused to testify against Buari, he himself might be charged with the murders.

3. The CPL § 440.10 Decision

The Motion Court rejected Buari's first and second claims outright, and held a series of hearings on Buari's New Evidence Claim. With regard to Buari's juror bias claim, the Motion Court found that (1) because neither Buari nor Jeffrey was aware of their relationship during trial, there was no factual basis for the claim of prejudice; (2) the Sentencing Court did not abuse its discretion in denying Buari's request for an adjournment, preserving the objection, and instructing Buari to file a CPL § 440.10 motion post-sentencing; and (3) because Buari failed to file his § 440 Motion in the six years post-verdict during which Jeffrey was alive, he was not entitled to a new trial.

With respect to Buari's second claim, involving Connor's...