Gardner v. Fisher
| Decision Date | 11 April 2008 |
| Docket Number | No. 05 CV 6096(NG)(JMA).,05 CV 6096(NG)(JMA). |
| Citation | 556 F.Supp.2d 183 |
| Parties | Jermaine GARDNER, Petitioner, v. Brian FISHER, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
Jermaine Gardner, Ossining, NY, pro se.
Charles J. Hynes, District Attorney of Kings County, by: Marie-Claude Palmieri Wrenn, Assistant District Attorney, Brooklyn, NY, for Respondent.
On January 30, 2008, Magistrate Judge Joan Azrack issued a Report and Recommendation recommending that Mr. Gardner's petition for a writ of habeas corpus be denied and directing the parties to submit any objections within ten days of receiving the Report and Recommendation. No objections having been filed, I hereby adopt the well-reasoned and carefully considered Report and Recommendation of Judge Azrack. Accordingly, Mr. Gardner's petition is denied, and since petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability is denied pursuant to 28 U.S.C. § 2253(c).
The clerk of court is directed to enter judgment accordingly.
SO ORDERED.
REPORT AND RECOMMENDATION
The above-captioned petition by Jermaine Gardner ("petitioner") for a writ of habeas corpus was referred to me by the Honorable Nina Gershon, United States District Judge, on October 23, 2006 for a Report and Recommendation pursuant to 28 U.S.C. § 636(b). Petitioner, appearing pro se, brings this application under 28 U.S.C. § 2254, challenging his conviction of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree by a jury in New York State Supreme Court, Kings County. Petitioner was adjudicated as a second violent felony offender and sentenced to twenty-five years to life on the murder conviction, along with a concurrent term of fifteen years for the weapon possession conviction. Petitioner is currently incarcerated at Sing Sing Correctional Facility.
Petitioner alleges by his petition that "the verdict was against the weight of the evidence," because one of the two eyewitnesses at trial testified that petitioner was not the perpetrator. Petitioner also claims that his federal constitutional rights were violated when the court refused to impose sanctions after the prosecutor violated Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), through delayed disclosure of exculpatory evidence gathered by the police. On the Brady issue, petitioner argues in the alternative that the court violated his constitutional rights when it refused to instruct the jury about the late disclosure.
I construe petitioner's weight of the evidence claim as a sufficiency claim1 and determine that it is barred from federal review because petitioner's counsel procedurally defaulted the claim by failing to object at trial. I find that most of the arguments raised by petitioner in support of his Brady claim were similarly defaulted, with the exception of petitioner's claim that the court erred in refusing to instruct the jury regarding the date on which the prosecutor turned over the Brady material. I find, however, that the court's denial of that request was proper, and therefore respectfully recommend that petitioner's application for a writ of habeas corpus be denied. I further recommend that no certificate of appealability issue, since petitioner has not demonstrated the substantial denial of a constitutional right.
At approximately 5:30 PM on January 2, 2001, Byron Wynn ("Wynn" or "the victim") was shot twice and died on a walkway between 410 Sutter Avenue and 414 Sutter Avenue in Brooklyn, New York. Petitioner was arrested for the crime on January 23, 2001 and indicted by a grand jury on February 8, 2001. He was convicted after a jury trial on March 26, 2002.
The testimony of eyewitnesses Magic Allen ("Allen") and Anastasia Hill ("Hill") constituted the evidence material to petitioner's sufficiency challenge. No other eyewitnesses to the shooting testified,2 and no forensic evidence linked petitioner to the killing.
Allen's testimony provided the core of the prosecution case. Allen lived on the first floor of 414 Sutter Avenue with her three children.3 (Tr. 184-85.) She had lived in the building most of her life, and knew petitioner because they lived next door to each other there when they were children. (Tr. 187-88, 190, 203-04, 247.) Allen knew petitioner by his street name, "Homo," and saw him around the neighborhood. (Tr. 188-89.) She was closer to petitioner's brother, who went by the street name "Millie/Mo" and whom she had also known since childhood. (Tr. 24849, 261.)
At around 4:30 PM on January 2, 2001, Allen was going out when a man in a wheelchair whom Allen knew from the building, named "Sequan," asked her to bring him back some chicken. (Tr. 186.) When Allen returned with the chicken, Sequan was in the hallway with petitioner, a man called "C-Murder," and "two other guys." (Tr. 187, 224.) Petitioner wore a tan-colored down jacket with white fur around the hood. (Tr. 199-200.) The hood was not up, and Allen saw his face. (Tr. 200.) Petitioner was the only one wearing a jacket with a hood. (Tr. 265-66.) Sequan asked Allen to call Wynn. (Tr. 190-91, 235.) She made the call on the phone in her apartment, then tried to give the phone to Sequan in the hallway. (Tr. 192.) Sequan would not take the phone; petitioner took it instead and talked to Wynn for about five minutes. (Tr. 192, 224.) After petitioner gave the phone back to Allen, she went into her apartment and called Wynn, telling him not to come to 414 Sutter Avenue. (Tr. 193.)
Allen then watched out her bedroom window, which was about six feet from the entrance of the building and looked onto Sutter Avenue. (Tr. 193-97, 271.) Allen saw Wynn get out of a car on Sutter Avenue and approach 414 Sutter Avenue via the walkway. (Tr. 196, 250-51.) Petitioner exited the building with his hood up over his head and met Wynn on the walkway about fifteen feet outside Allen's window. (Tr. 198-200, 204-05, 226, 233-34.) They spoke for five or six minutes, then Allen heard two gunshots and saw petitioner run toward the entrance of 414 Sutter Avenue with a black handgun in his right hand. (Tr. 198-99, 201, 204-05.) As he ran to the building, petitioner's hood came off, revealing his face. (Tr. 199, 201-02.) As he entered the building, petitioner briefly stopped and looked directly at Allen's window from about four feet away, giving her a clear view of his face. (Tr. 202, 205, 223.)
Anastasia Hill was with Wynn several hours before his killing and saw him talking to a man known to her by the name "Millie/Mo," whom she described as a tall, skinny man from 414 Sutter Avenue wearing a tan-colored jacket with fur on the collar. (Tr. 275-77.) Hill had seen petitioner wearing a similar coat before (Tr. 277), but had not seen petitioner and Millie/Mo wearing the same coat at the same time (Tr. 278). Hill was with Wynn in his car later when he received a phone call and went to 414 Sutter Avenue; she stayed in the car and watched Wynn speak to a person wearing a tan jacket with fur on the collar in front of the building. (Tr. 28183.) At this time, she did not know who the person in the tan jacket was. (Tr. 283.) The person in the tan jacket talked to Wynn for approximately six minutes, then tried to grab him. (Tr. 284.) Hill heard two gunshots, saw Wynn collapse, and saw the person in the tan jacket run into 414 Sutter Avenue. (Tr. 284-85.) Hill denied knowing the identity of the shooter. (Tr. 283.)
Immediately after he rested, defense counsel stated, (Tr. 362:22-363:18.) Noting that Hill had repudiated out-of-court statements she made to the police that another man committed the crime (discussed more fully below), and that in any case her prior statement was not admitted for the truth of the matter asserted, the court denied the defense application, stating, "It's a question of credibility for the jury." (Tr. 364:4-5.) Defense counsel did not take exception to the court's ruling.
On appeal to the Appellate Division, petitioner argued that the verdict was against the weight of the evidence because the prosecution failed to prove his identity as the shooter by legally sufficient evidence. (Resp. Ex. B: Brief for Def.-App., at 27-36.) On October 22, 2004, the Appellate Division unanimously held that "[t]he defendant's claim that the evidence at trial was legally insufficient to establish his guilt is unpreserved for appellate review," citing N.Y.Crim. Proc. Law § 470.05(2), People v. Gray, 86 N.Y.2d 10, 629 N.Y.S.2d 173, 652 N.E.2d 919 (1995), and People v. Udzinski 146 A.D.2d 245, 541 N.Y.S.2d 9 (2d Dep't 1989). People v. Gardner, 12 A.D.3d 525, 785 N.Y.S.2d 462 (2d Dep't 2004). The Second Department also held that the evidence, viewed in the light most favorable to the prosecution, was legally sufficient, and that, "[u]pon the exercise of our factual review power, we are satisfied that the verdict of guilt was not against the weight of the evidence." Id. (internal citation omitted).
The New York Court of Appeals denied leave to appeal by order dated January 4, 2005. People v. Gardner, 4 N.Y.3d 763, 792 N.Y.S.2d 7, 825 N.E.2d 139 (2005).
On March 19, 2002, after jury selection and before opening arguments, the prosecutor turned over unspecified discovery material as required by People v. Rosario, 9 N.Y.2d 286, 213...
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