Conley v. U.S.

• Decision Date: 18 September 2001
• Docket Number: No. 01-10853-REK.,01-10853-REK.
• Parties: Kenneth M. CONLEY, Petitioner v. UNITED STATES of America, Respondent
• Court: U.S. District Court — District of Massachusetts

164 F.Supp.2d 216

Kenneth M. CONLEY, Petitioner v. UNITED STATES of America, Respondent

No. 01-10853-REK.

United States District Court, D. Massachusetts.

September 18, 2001.

Willie J. Davis, Davis, Robinson & White, Boston, MA, for petitioner.

S. Theodore Merritt, United States Attorney's Office, Boston, MA, for respondent.

Memorandum and Order

KEETON, District Judge.

I. The Pending Matter

Under the terms of the ORDER of COURT of the Court of Appeals for the First Circuit in No. 00-2141, dated August 29, 2001 (filed in this case in this court as Docket No. 134) this court must order judgment one way or the other on the "Motion to Set Aside Conviction" filed pursuant to 28 U.S.C. § 2255. (Under regular practice of the Clerk of the United States District Court for the District of Massachusetts, the petitioner's "Motion to Set Aside Conviction" was treated as a civil action and designated as Civil Action No. 01-10853-REK.)

II. Nature of This Civil Case and Background Criminal Proceedings

As noted above, this Civil Action No. 01-10853-REK was initiated by the filing with the Clerk of this court of a document bearing the caption shown above and titled, "Motion to Set Aside Conviction" (Docket No. 1, filed May 18, 2001).

Petitioner Kenneth Conley, "pursuant to 28 U.S.C. 2255, moves that the conviction [in Criminal No. 97-10213-REK] be set aside upon the ground that there has been a denial or infringement of the constitutional rights of the Petitioner as to render the judgment vulnerable to collateral attack." Docket No. 1 at 1. The document alleges the following explanation of grounds for setting aside the conviction:

1. Petitioner, a Boston Police Officer, was charged in a three-count indictment with perjury and obstruction of justice. Pursuant to a grant of immunity the Petitioner appeared before the federal grand jury to give testimony during the investigation of an assault on Michael Cox, also a Boston Police Officer. Following his grand jury testimony, Petitioner was indicted in two counts for perjury and one count for obstruction of justice.

2. After trial by jury, Petitioner was convicted on Count One of the indictment, acquitted on Count Two, and convicted on the Count charging obstruction of justice. The judgment of conviction was affirmed. United States v. Conley, 186 F.3d 7 (1st Cir.1999), cert. denied, 529 U.S. 1017, 120 S.Ct. 1417, 146 L.Ed.2d 310 (2000).

3. Petitioner was given a thirty-four month committed sentence. He is presently waiting to commence serving the sentence that has, to this point, been stayed.

4. Following the denial of his petition for certiorari, Petitioner filed a motion for a new trial. The motion was granted. United States v. Conley, 103 F.Supp.2d 45 (D.Mass.2000). The government appealed. By Opinion and Order dated May 11, 2001, the Order of the District Court was reversed, and the sentence imposed ordered executed.

5. The Judgment of Conviction under which Petitioner is presently restrained was obtained in violation of the Due Process Clause of the Fifth Amendment to the Constitution of the United States in that exculpatory evidence was withheld from Petitioner during trial, which resulted in a verdict not worthy of confidence.

6. The pertinent facts showing the Constitutional violation are as follows:

a. Sometime after midnight, on January 25, 1995, a call for an officer down following a shooting was broadcast over the Boston Police Radio Frequency. The suspects involved in the shooting fled the scene in a gold Lexus. Police Officers from throughout the city became involved in the pursuit of the suspects.

b. The pursuit ended in a cul-desac in the Mattapan Section of the City of Boston. Four suspects alighted from the Lexus and attempted to flee. Three were apprehended immediately. The fourth, a man by the name of Robert Brown, was successful in hopping over a fence and making a temporary getaway.

c. Officer Michael Cox chased Brown to the fence. The Petitioner also chased him. Cox hesitated at the fence. The Petitioner did not. When Cox made a decision to try and get over the fence, he was struck from behind, presumably by a fellow officer.

d. Once over the fence, Petitioner chased Brown for several hundred yards before apprehending him.

e. While Petitioner was chasing Brown, other officers inflicted a severe beating upon Cox. He sustained great physical damage.

f. Thereafter, a Boston Police Internal Affairs investigation was conducted. The investigation did not reveal the officers who were responsible for beating Cox. Likewise, an investigation conducted by the Suffolk County Grand Jury failed to reveal the responsible officer or officers.

g. At some point, a federal grand jury investigation was commenced. Petitioner, pursuant to a grant of immunity, appeared and gave testimony. In response to questions asked by the prosecutor, Petitioner testified that he did not see Cox chasing Brown. This answer led to Count I of the indictment charging perjury. Petitioner also testified that he did not see the assault upon Cox. This answer led to Count II of the indictment charging perjury. A third count was brought charging obstruction of justice.

h. Petitioner, in the beginning, was unaware of the state grand jury proceedings. When he became aware he realized that some of it could be exculpatory. Thereafter, he made a specific request of the court to require the prosecutor to provide him with all exculpatory testimony of witnesses. The prosecutor specifically represented that he had none in his possession.

i. In the meantime, Cox filed a civil suit in the district court against those officers he deemed to be responsible. Following the indictment of the Petitioner and shortly before trial, Cox brought a civil action against Petitioner claiming that Petitioner engaged in a cover-up and that he failed to provide medical assistance.

j. The criminal trial, which resulted in the judgment of conviction, concluded on June 10, 1998. In December of that year the civil trial commenced. The jury found that Petitioner was not liable; that he did not engage in a cover-up; nor did he fail to render assistance to Cox.

k. It was during the civil trial that Petitioner became aware of the possibility of some exculpatory evidence not being provided by the prosecution.

l. In December of 1999, Brown was indicted by the federal grand jury for two sales of a controlled substance and conspiracy. The first sale took place on May 13, 1997, one month after his federal grand jury testimony, and, the second on March 4, 1998, approximately two months before his trial testimony. The prosecution became aware of these offenses prior to the trial of the Petitioner.

m. Following denial of his petition for certiorari, Petitioner filed a motion for a new trial claiming newly-discovered evidence which was exculpatory. The newly-discovered evidence concerned Cox, Brown and Officer Richard Walker. It was the combination of the testimony of these three in which the First Circuit found that the evidence was sufficient to sustain the conviction n. The trial judge conducted a hearing on the motion for a new trial at which he directed the prosecutor to turn over to him all documents in possession of the government pertaining to the case and to delineate those which had not been provided to the Petitioner.

o. Following review of the documents provided, the trial judge found by a preponderance of the evidence that the prosecution had withheld information from the Petitioner; and, based upon the conflict in testimony at the criminal trial, the trial judge found that the withheld evidence impeded the Petitioner's ability to cross-examine particular witnesses at trial.

7. The Petitioner now asserts that the error alleged, i.e., withholding evidence favorable to Petitioner, is a fundamental defect which, if uncorrected, will result in a complete miscarriage of justice. David v. United States, 134 F.3d 470, 474 (1st Cir.1998), quoting Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962).

8. The Petitioner asserts that the undisclosed documents, which could have been used to impeach eyewitnesses, were favorable to the Petitioner for purposes of Brady. Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

9. The Petitioner further asserts that by withholding the documents, the prosecution deprived him of a fair trial, understood as a trial resulting in a verdict worthy of confidence. Strickler v. Greene, supra, citing Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).

Because of the foregoing, Petitioner is being restrained of his liberty in violation of the Constitution of the United States; and, he, therefore, prays that the motion be granted.

Id. at unnumbered pages 1-7.

The government responded (Docket No. 5, filed July 13, 2001) with a contention that this court, under the Mandate of the Court of Appeals for the First Circuit in Criminal No. 97-10213-REK, was and continues to be without authority to grant the relief requested by petitioner.

The timing of key events in the criminal proceeding is material. When the Mandate of the Court of Appeals in Criminal No. 97-10213-REK was filed in this court, the criminal proceeding was thus revived in this court. The Opinion of the Court of Appeals for the First Circuit affirming the Judgment of this court was dated July 23, 1999, a time long before Conley filed his motion for new trial. Thus, Conley's motion for new trial (Docket No. 106 in CR No. 97-10213-REK, filed March 24, 2000), on grounds of newly discovered evidence, had not been considered in that Opinion of the Court of Appeals. Also, Conley's motion for new trial was timely under Rule 33 of the Federal Rules of Criminal Procedure ("within three years after the verdict").

After hearings of record, this court granted the motion for new trial in its Opinion of June 27, 2000 (Docket No. 122). See United States v. Conley, 103...