Cosey v. Lilley

Decision Date19 May 2020
Docket Number18-cv-11260 (JGK)
Citation460 F.Supp.3d 346
Parties Archie COSEY, Petitioner, v. Lynn LILLEY, Superintendent of Woodbourne Correctional Facility, Respondent.
CourtU.S. District Court — Southern District of New York

David Bruce Rankin, Keith Michael Szczepanski, Beldock Levine & Hoffman LLP, New York, NY, for Petitioner.

Stephen Joseph Kress, New York County District Attorney Office, New York, NY, for Respondent.

OPINION AND ORDER

JOHN G. KOELTL, District Judge:

The petitioner, Archie Cosey, has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C § 2254. The petitioner seeks to vacate his conviction, pursuant to his guilty plea, to conspiracy in the first degree in violation of New York Penal Law § 105.17 and murder in the second degree in violation of New York Penal Law § 125.25. The petitioner was sentenced to concurrent terms of 25 years to life in prison. In this second petition for a writ of habeas corpus, the petitioner raises three claims: (1) that he was denied due process because the State violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ; (2) that he received ineffective assistance of counsel; and (3) that he is actually innocent. For the reasons discussed below, the petitioner's petition for relief is dismissed .

I. Background

The following facts are taken from the petition, sworn declarations, and exhibits submitted in connection with this motion and are undisputed unless otherwise noted.

A. The Petitioner's Plea

In 1997, the petitioner was charged with conspiracy in the first and second degrees for involvement in drug trafficking, second-degree murder, and second-degree kidnapping. Addendum to Pet. ¶ 14. On October 15, 1998, the petitioner pleaded guilty in the New York State Supreme Court, New York County, to one count of conspiracy in the first degree for the sale of narcotics and one count of murder in the second degree. Id. at ¶ 15. The murder concerned the death of James Williams on August 3, 1993 at 162 West 123rd Street in New York, New York. Kress Decl. Ex. A at 72. The trial judge, the Honorable Leslie Crocker Snyder, explained that while a conviction on both counts could lead to a penalty of 50 years to life, in exchange for his plea, the petitioner's ultimate sentence would be 25 years to life. Id. at 73-74. At the plea allocution, the petitioner told the court that "he might as well take [the plea]." Id. at 67. The trial court sought clarification, asking the petitioner if he wanted to "take the plea as opposed to going to trial," to which the petitioner replied "yes." Id. at 67-68. Although the petitioner initially said that he had not "spent a lot of time with [his] attorney discussing" the plea, he later stated that he talked to his attorney about it "at some length." Id. at 68-69. When asked about the facts surrounding the murder, the petitioner at first stated that the murder "supposedly" occurred on 123rd Street. Id. at 72. The petitioner later clarified that he was present at the scene, prevented Williams from leaving the hallway of 162 West 123rd Street, and knew that Williams was about to be killed on the orders of Carl Dushain. Id. at 73. The petitioner also stated that he was pleading guilty of his own free will and that no one threatened him or forced him in any way to plead guilty. Id. at 68.

On November 10, 1998, the date fixed for his sentencing, the petitioner, acting pro se, moved the trial court to withdraw his guilty plea, asserting that he was innocent and had an alibi witness, that he was coerced into pleading guilty by threats to his family and statements by his codefendants’ lawyers, and that his lawyer rendered ineffective assistance in handling his criminal case. Addendum to Pet. ¶ 16; Kress Decl. Ex. B at 80-84. Justice Snyder denied the petitioner's motion to withdraw his plea without holding an evidentiary hearing. Addendum to Pet. ¶ 16. She noted that the petitioner had affirmed his guilt in the plea allocution and that he knew of his alibi before he pleaded, that he had knowledge of threats to his family but did not convey them to his lawyer, who would have conveyed them to the district attorney, and that the petitioner was attempting to withdraw his plea as a tactical move in order to be tried separately from his codefendants, Dushain and Danny Green. Kress Decl. Ex. B at 84-85, 89-90.1 Justice Snyder considered the application to be "spurious" and "deliberately misleading." Id. at 87. Justice Snyder also noted that the evidence against the petitioner "both in the Grand Jury minutes and other sources [was] overwhelming." Id. at 89. Justice Snyder then sentenced the petitioner to concurrent terms of 25 years to life on the charges of conspiracy and murder. Id. at 91. On September 27, 2001, the Appellate Division, First Department, of the New York State Supreme Court affirmed the petitioner's conviction, and found that Justice Snyder properly exercised her discretion in denying the petitioner's application to withdraw his guilty plea. People v. Cosey, 286 A.D.2d 647, 730 N.Y.S.2d 434 (2001) (mem.). On November 8, 2001, Judge Smith denied the petitioner leave to appeal to the Court of Appeals. See People v. Cosey, 97 N.Y.2d 655, 737 N.Y.S.2d 56, 762 N.E.2d 934 (2001).

B. The Grand Jury Testimony

Assistant District Attorney Luke Rettler initially presented the State's case to the grand jury. Two grand jury witnesses placed the petitioner at the scene of the Williams murder. The first was Edward Walker, who sold drugs as part of the drug organization headed by Dushain, and who testified at the grand jury with immunity. Kress Decl. Ex. U at 1444-45. Walker testified that he was present at the murder of Williams, that Dushain had ordered Green to kill Williams, and that Chris Ortiz and the petitioner beat and kicked Williams and prevented him from escaping the building so that Green could kill him. Id.; Szczepanski Decl. Ex. 8. The second was Janet Hutchens, who was also involved in the drug organization. Hutchens testified that she was present in the building at 162 West 123rd Street on August 3, 1993 and that she saw Ortiz and the petitioner prevent Williams from leaving the building. Hutchens testified that Dushain ordered Green to get the gun, and that Green got the gun and then shot Williams. Szczepanski Decl. Ex. 22 at 671-72. Hutchens also testified to the grand jury that she saw Walker, whom she referred to as Melo, standing by the door, on the steps. Id. at 671.

In October, 1997, Rettler learned that Walker had been incarcerated on August 3, 1993 and thus could not have witnessed Williams's murder. Kress Decl. Ex. U at 1597; Szczepanski Decl. Ex. 8. Walker was subsequently indicted for perjury. Kress Decl. Ex. U at 1599. On June 8, 1998, before the petitioner pleaded guilty, Rettler submitted an ex parte letter to the trial court, in which he disclosed that the State had discovered that Walker was incarcerated on the date of Williams's murder, but Rettler argued that the perjured testimony was not material enough to warrant dismissal of the indictment against the defendants. Szczepanski Decl. Ex. 8. Rettler argued that Hutchens's testimony established every element of the murder charge against the petitioner, Dushain, and Green, and that Walker was able to testify about what happened that night, even though he was not there, because the petitioner had related that information to Walker. Id.; Kress Decl. Ex. U at 1662. In the letter, Rettler acknowledged that Walker's grand jury testimony had placed the petitioner at the scene of the crime. Szczepanski Decl. Ex. 8. However, Rettler did not note to the trial court that Hutchens had also testified in front of the grand jury that Walker was present at the murder. Id.; Kress Decl. Ex. U at 1700. Rettler was concerned that disclosure of Walker's perjury would endanger Walker's safety because in a prior case in which Dushain was sentenced to prison, members of Dushain's organization had attempted to kill the complaining witness prior to Dushain's trial. Szczepanski Decl. Ex. 8. Rettler feared that disclosure could endanger Walker's life. Kress Decl. Ex. U at 1612-13. Rettler also argued that no disclosure to the defendants should be required. While Rettler believed that Walker's perjury was Brady or Rosario 2 material, Rettler represented to Justice Snyder that the prosecution would never call Walker as a witness because of Walker's perjury. Id. at 1604-1601; Szczepanski Decl. Ex. 8. Ultimately, Rettler did not disclose that Walker had testified falsely in the grand jury, and Justice Snyder did not require such disclosure. However, Rettler stipulated at the trial of Dushain and Green that Walker was incarcerated at the time of the murder. Kress Decl. Ex. U at 1619-20, 1676.

C. The Trial of Dushain and Green

In November, 1998, the State proceeded to trial against Dushain and Green. Addendum to Pet. ¶ 17. Ortiz testified to the following at trial: Dushain believed that Williams had stolen money from Dushain's drug organization and decided to have Williams killed for $500. Kress Decl. Ex. E at 412-16. When it was dark on August 3, 1993, Dushain called Ortiz and the petitioner into the brownstone at 162 West 123rd St. Id. at 416-18. Present in the building were Dushain, Green, David Bobbitt, Ortiz, the petitioner, and Williams.3

Id. at 418-19. Bobbitt took Williams upstairs, returned downstairs, and then walked out of the building. Id. at 420. Williams tried to get out of the building, but the petitioner and Ortiz stopped him and barricaded the door. Id. Green went upstairs to get the gun and fired an initial shot as he was coming down the stairs, towards Williams. Id. at 421. At this point, Williams was on his knees with his hands up, pleading with Green not to kill him. Id. at 422. Eventually, Green fired a second shot from a distance of about five feet away, this time hitting Williams in the back. Id. Williams was shot when he was kneeling, and his body then fell forward. Id. at...

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