Bumpus v. Superintendent of Clinton Correct. Fac.

• Decision Date: 06 September 2007
• Docket Number: No. 1:07-cv-1791-ENV.,1:07-cv-1791-ENV.
• Citation: 507 F.Supp.2d 246
• Parties: James BUMPUS, Petitioner, v. SUPERINTENDENT OF CLINTON CORRECTIONAL FACILITY, Respondent.
• Court: U.S. District Court — Eastern District of New York

507 F.Supp.2d 246

James BUMPUS, Petitioner, v. SUPERINTENDENT OF CLINTON CORRECTIONAL FACILITY, Respondent.

No. 1:07-cv-1791-ENV.

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

September 6, 2007.

COPYRIGHT MATERIAL OMITTED

Lawrence F. Ruggiero, Charles D. Lavine, for petitioner.

Amy M. Appelbaum, Office of U.S. Attorney, Kings County, for respondent.

MEMORANDUM AND ORDER

VITALIANO, District Judge.

Two young men were arrested for the robbery and murder of the same victim. The two were later indicted for the same crimes by the same grand jury in the same true bill. The two were then prosecuted in the same courtroom at the same time, confronting the same witnesses before the same trial judge and jury. Both were convicted at the same moment and each received the same sentence. Any trial error or infirmity in the evidence as to one was equally error and infirmity as to the other. Both appealed. When the appellate process concluded, the indistinguishable co-defendants met very different fates.

The root explanation for their variable fates lies in the fact that New York permits codefendants to pursue separate and independent appellate tracks. Initially, their attorneys separately raised the same issues on direct appeal. The Appellate Division affirmed the conviction of the first defendant and, four months later, affirmed the conviction of the second, citing the reasoning of the earlier decision. From this point, the co-defendants' paths diverged. The first defendant, proceeding pro se, sought leave to appeal to the New York Court of Appeals ("Court of Appeals"), presenting only one of the claims raised to the Appellate Division. His application was denied. The second defendant, represented by a law professor who had taken the case pro bono, presented all of the claims that had been raised to the Appellate Division, and he was granted leave to appeal. Ten months later, on the basis of evidence improperly admitted as to both defendants, the Court of Appeals reversed the conviction of the second defendant. The first defendant then sought reconsideration from each of the courts that had heard his case — the New York Supreme Court, Appellate Division, and Court of Appeals. Each of these appeals was met with a summary denial. He then turned to this Court, petitioning in 1997 for a writ of habeas corpus on the ground, among others, that his continued imprisonment on this conviction, in light of the reversal of his codefendant's conviction, was repugnant to the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

For the reasons set forth below, this' Court finds that all but one of petitioner's claims are procedurally barred from federal habeas review because they were not fairly presented to the Court of Appeals. The remaining claim, that the courtroom was improperly closed during trial, does not merit habeas relief. Accordingly, the writ is denied and the petition is dismissed.

BACKGROUND

I. Indictment and Trial

James Bumpus and co-defendant Rodney Russ were charged, under Kings County Indictment Number 3566/85, with robbing and fatally shooting Hector Rodriguez at the Fort Greene Housing Project in Brooklyn, New York on the evening of June 13, 1984. The indictment charged two counts of murder in the second degree (N.Y. Penal Law § 125.25(1), (3)), robbery in the first degree (N.Y. Penal Law § 160.15(4)), and criminal possession of a weapon in the second and third degree (N.Y. Penal Law §§ 265.02(4), 265.03).

The indictment was based principally upon the grand jury testimony of two teenaged eyewitnesses, Karen Lawrence and Leana Gonzalez, whose testimony before and during trial would waver under competing pressures. The two girls and their families lived in the same housing project as the co-defendants and their families. They did not come forth immediately with their testimony. Almost a year had passed when they happened to be visiting their local police precinct on an unrelated matter and a police officer familiar with the Rodriguez murder questioned them. Lawrence and Gonzalez conceded to the officer that they had seen Bumpus and Russ trying to rob the victim on the night of the murder. Before a grand jury, Lawrence testified that she had seen Bumpus and Russ hold down and search Rodriguez immediately before the fatal shot was fired. Gonzalez similarly testified to the grand jury that she had seen Bumpus holding a gun to Rodriguez's head, Russ searching Rodriguez's pockets, and that she had left when the fatal shot was fired.

As trial approached, the two young women attempted to recant their grand jury testimony by giving a defense investigator written statements denying that they had seen who had shot Rodriguez. Shortly before trial, however, Gonzalez expressed her intention to stick with her earlier grand jury testimony when she told the Assistant District Attorney ("ADA") assigned to the case that the testimony was, in fact, true.

At trial, the prosecution first called Lawrence, who testified that she had not seen the murder and had not even seen Bumpus or Russ at all on the night of the murder. This testimony being unquestionably inconsistent with Lawrence's grand jury testimony, the court held a sidebar conference, at which the prosecutor stated:

This witness, for a year approximately after the homicide, never came forward to speak to the police. The first time I met her, in June of 1985 at the Grand Jury, she indicated to me that she was deathly afraid of members of the families of both defendants. Indeed, she indicated that before testifying in a trial in this case she would like no longer to be living in the area, and asked me to assure her that her name would never be made known to the defendants or their family until commencement of the trial and until they had been moved, her family.

The courtroom is packed with people who I know to be relatives of both defendants. This witness, five minutes before entering the courtroom, affirmed the veracity of her Grand Jury testimony, indicated she was afraid to testify in front of members of their families, but that these two defendants shot and killed Hector Rodriguez.

I think what very clearly has occurred, the witness has taken the stand, looked in the audience, seen many people who she knows, and is now afraid to truthfully testify.

(Tr. 43:11-44:18.)¹ Russ's attorney responded, "[i]t's been my information that no member or any one of my client's family has threatened or coerced her to make her change her story. On the contrary, I heard that the District Attorney and the investigators and the detectives on the case have been at these witnesses for the last two weeks, or something like that. They've been threatened with perjury, they've been threatened to go to jail for five years." (Tr. 45:22-46:6.) Following the sidebar conference, the prosecutor impeached Lawrence, without objection from defense counsel, by reading her inconsistent grand jury testimony to the jury. Before allowing any further questioning, the court adjourned the proceedings for the day and assigned counsel to Lawrence.

On the following day of trial, the court held a hearing outside the presence of the jury to address whether Lawrence would assert her Fifth Amendment privilege against self-incrimination. The prosecutor requested that the courtroom be closed for the hearing, pointing out that, just five minutes before testifying, Lawrence had made statements inconsistent with her trial testimony. The prosecutor added that "it's my personal belief that this witness, as a result of being confronted with many people in the courtroom who she knows, that that fact has effected [sic] the willingness of the witness to testify truthfully." (Tr. 108:24-109:5.) The prosecutor also asserted that the defendants' family members were, in fact, present in the courtroom. Over objection from counsel for both defendants, the court ruled: "I have every reason to believe that the witness is being terrorized by the presence of these spectators, and during the hearing, I will order that all spectators leave the courtroom." (Tr. 110:25-111:5.) The trial court allowed Lawrence's father to remain in the courtroom.

Outside the presence of the jury, Lawrence asserted her Fifth Amendment privilege Against self-incrimination in response to questions about her prior statements. The prosecutor contended that Lawrence could not assert her Fifth Amendment privilege because she had already let the cat out of the bag: "She has testified in a particular way, and the only thing she can do through additional testimony is to either leave her position as it was, or to improve it. I don't believe that the ... assertion of any Fifth Amendment privilege at this time would be a benefit to this witness. She's made her bed." (Tr. 117:6-12.) The court disagreed, deciding that Lawrence could properly invoke the privilege. (Tr. 118:22-24.) The prosecutor then requested and received a ten minute recess to speak with his supervisors about whether he could grant Lawrence immunity as to prior instances of perjury. (Tr. 119.) At the conclusion of the recess, the following exchange ensued:

The Court: Let the record indicate that all counsel and both defendants are again present.

What do you wish to do?

Mr. Cohen: Judge, I'm about to learn from Miss Lawrence what she's going to do in a second. If she's still interested in invoking the Fifth Amendment, I will ask you to grant us a continuance until tomorrow morning when I believe I'll have an application.

The Court: All right. Do you mind advising the Court of your position?

Mr. Cohen: Judge, the witness is speaking with her attorney and her father. I have asked her what she's going to do when she gets on the witness stand. She still hasn't told me. I'm going to ask her one more time, and then I'm going to ask for a continuance until tomorrow morning at which point we will reevaluate our position, if necessary.

The Court: Why do you need all these...