Fama v. Commissioner of Correctional Services, 96 CV 4860(SJ).

• Decision Date: 30 September 1999
• Docket Number: No. 96 CV 4860(SJ).,96 CV 4860(SJ).
• Parties: Joseph FAMA, Petitioner, v. COMMISSIONER OF CORRECTIONAL SERVICES, Respondent.
• Court: U.S. District Court — Eastern District of New York

69 F.Supp.2d 388

Joseph FAMA, Petitioner, v. COMMISSIONER OF CORRECTIONAL SERVICES, Respondent.

No. 96 CV 4860(SJ).

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

September 30, 1999.

COPYRIGHT MATERIAL OMITTED

Schapiro & Reich, Lindenhurst, NY by Perry S. Reich, for Petitioner.

Charles J. Hynes, District Attorney of Kings County, Brooklyn, NY by Roseann B. MacKechnie, Monique B. Ferrell, Assistant District Attorneys, for Respondent.

MEMORANDUM AND ORDER

JOHNSON, District Judge.

Joseph Fama ("petitioner") brings the present action seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For reasons set forth herein, this petition is denied.

BACKGROUND

I. Summary of Facts

On August 23, 1989, in Bensonhurst, Brooklyn, sometime after 8 PM, thirty to forty white males gathered at the intersection of 68th Street and 20th Avenue, armed with baseball bats, golf clubs and other weapons. This group was there to confront blacks expected to attend a birthday party being given for a white female resident of the neighborhood.

Around 9:30 PM, four unsuspecting African-American youths walked along 20th Avenue, passing 68th Street. These young men, Yusef Hawkins, Troy Banner, Luther Sylvester and Claude Standford, were there looking for the address of a man who had a car to sell. As they passed 68th Street, a white youth on a bicycle raced up the block yelling, "they're here, they're here." Someone in the white crowd shouted "Let's club the niggers." Another yelled, "f--k it. Let's not club them. Let's shoot the niggers and show Gina [the woman hosting the birthday party]."

The white males rushed toward the African-Americans in two groups of at least eight to ten individuals each. One group chased Hawkins, who became separated from his friends. The group that was chasing Yusef Hawkins finally cornered him. Standing just a few feet away from him, a gunman, later identified as petitioner, fired a handgun four times while his accomplices looked on, striking Hawkins twice in the chest and once in the left hand. Hawkins died a short time later.

Petitioner thereafter fled Brooklyn and was not apprehended until he surrendered to authorities in Oneota, New York on August 31, 1989. While in custody, on two separate occasions, petitioner told two different people that he intentionally shot Yusef Hawkins because he was black. The evidence admitted at petitioner's subsequent trial in the Supreme Court of New York, Kings County, included these admissions of guilt, as well as the testimony of eyewitnesses who stated that petitioner participated in the planning and perpetration of the armed riot and eventual shooting.

Petitioner was convicted on one of two counts of murder in the second degree (murder with depraved indifference),¹ riot in the first degree, criminal possession of a weapon in the third degree, three counts of unlawful imprisonment in the first degree (pertaining to Banner, Stanford and Sylvester), three counts of menacing (also pertaining to Banner, Stanford, and Sylvester), and four counts of discrimination. On June 11, 1990, petitioner was sentenced to consecutive terms of imprisonment of twenty-five years to life for the murder count, one and one-third to four years for the riot count, two and one-third to seven years for weapon possession, and one and one-third to four years for each count of unlawful imprisonment. In addition, he was sentenced to concurrent terms of imprisonment of ninety days for each menacing count and one year for each discrimination count, the sentences to run concurrently with those imposed on all other counts. Finally, petitioner was sentenced to a total of $2,000 restitution on the discrimination counts.

II. Procedural History

Petitioner appealed from this judgment of conviction to the Appellate Division, Second Department. By memorandum decision and order dated February 6, 1995, the Appellate Division unanimously affirmed the conviction. People v. Fama, 212 A.D.2d 542, 622 N.Y.S.2d 732 (1995).

On February 9, 1995, petitioner applied for leave to appeal to the New York Court of Appeals. On June 14, 1995, petitioner's application was denied without prejudice to renew his application on or before September 30, 1995, upon substitution of counsel. People v. Fama, 86 N.Y.2d 734, 631 N.Y.S.2d 615, 655 N.E.2d 712 (1995). Petitioner subsequently renewed his application on September 28, 1995, and it was denied on December 11, 1995. People v. Fama, 87 N.Y.2d 901, 641 N.Y.S.2d 230, 663 N.E.2d 1260 (1995).

In support of the instant petition, filed on October 3, 1996, petitioner alleges almost innumerable violations of his due process rights under the Fourteenth Amendment. He specifically contends that: (1) his conviction of murder in the second degree was not supported by legally sufficient evidence; (2) the trial court improperly instructed the jury on accessorial liability with regard to the murder counts; (3) the court failed to respond to jury's questions in the manner requested by petitioner; (4) the court gave an instruction to the jury that "overemphasized the role of the jury in assessing truthfulness rather than accuracy," Petitioner's Memorandum of Law at 49; (5) the trial court closed the courtroom twice during deliberations, as well as during a pre-trial hearing and a conference, depriving petitioner of his right to a public trial; (6) petitioner was absent when the court, in the presence of petitioner's counsel, questioned a juror about a report of harassing telephone calls; (7) petitioner was deprived of his right to a fair trial and compulsory process when the court limited petitioner's direct examination of defense witness Al Russo concerning an alleged prior inconsistent statement by People's witness Robert Russo regarding petitioner's jailhouse confession; (8) the court, over the objection of defense counsel, "improperly eliminated" Jewish members of the jury pool during the course of voir dire, Petitioner's Memorandum of Law at 60; (9) the prosecution exercised challenges to potential jurors on the basis of their "white race," id.; (10) the court failed to ensure that petitioner received a fair trial "in the face of ongoing adverse publicity, courtroom outbursts, and intimidation of the jury," id. at 61; (11) the court denied petitioner's request that jurors be questioned during voir dire about their knowledge of a statement by Keith Mondello (who also was indicted) implicating petitioner; and (12) the court denied petitioner's request to question jurors individually about "media exposure ... to avoid tainting other potential members of the jury," id.

The claim of legally insufficient evidence, although included in the application for leave to appeal to the New York Court of Appeals, had not been presented to the Appellate Division, Second Department, to the extent it alleged insufficiency for reasons other than that the evidence did not prove petitioner's identity as the perpetrator of the crime beyond a reasonable doubt. The same was true of claims four through nine, eleven and twelve listed above. Accordingly, petitioner requested that the petition be held in abeyance pending the filing of a motion for a writ of error coram nobis in the Appellate Division, on the ground that appellate counsel had rendered ineffective assistance by failing to raise these claims. The request to stay this Court's decision was granted, and the petition was held in abeyance from April to August 1997. See Docket nos. 19 and 20 (Order dated April 21, 1997, and letter to the Court dated July 30, 1997, requesting reinstatement to the active calendar). The motion for a writ of error coram nobis was denied by the Appellate Division by decision and order dated July 28, 1997, on the ground that petitioner "failed to establish that he was denied the effective assistance of appellate counsel." People v. Fama, 241 A.D.2d 555, 663 N.Y.S.2d 992 (1997).

Shortly thereafter, petitioner requested by letter dated October 9, 1997, that this Court again hold his petition in abeyance pending his filing of a motion to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10. Although this Court issued no order with respect to this request, petitioner proceeded to file the motion in the Supreme Court, Kings County on June 1, 1998, alleging the following: (1) newly discovered evidence (obtained by petitioner "in the Summer of 1997") shows that prosecution witness Robert Russo received a benefit from the Kings County District Attorney's Office (consideration of his cooperation in connection with his then-pending application for work release) in exchange for testifying, contrary to what he stated under oath; (2) the prosecution allowed false testimony to remain in evidence (petitioner submitted a hearsay affidavit of Frank Albanese stating that Robert Russo admitted to him in 1992 that he had perjured himself, as well as an affidavit from an eyewitness, Franklin Tighe, who purportedly "recanted his entire trial testimony," and admitted to defense counsel "that he had lied under oath"); (c) the judgment of conviction was obtained based on fraud and misrepresentation; and (d) had the new evidence been discovered at the time of trial, the outcome would have been different. See Docket no. 26 (copy of brief submitted to state court in support of § 440.10 motion). This motion was denied by the Supreme Court, Kings County, on December 14, 1998, and leave to appeal this decision to the Appellate Division was denied on June 7, 1999.

On June 23, 1999, petitioner moved to amend his pending habeas petition to add these latest claims, and requested an evidentiary hearing.

DISCUSSION

I. Motion to Amend the Petition

A motion to amend a petition for a writ of habeas corpus is generally governed by Federal Rule of Civil Procedure 15(a). See Rule 11 of the Rules Governing Section 2254 Cases ("the Section 2254 Rules") ("The Federal Rules of Civil Procedure, to the extent that they are not inconsistent with...