Jones v. Keane
| Decision Date | 10 December 2002 |
| Docket Number | No. 99-CV-0149E(F).,99-CV-0149E(F). |
| Citation | 250 F.Supp.2d 217 |
| Parties | James J. JONES, # 85-C-0146, Petitioner, v. John P. KEANE, Superintendent, Respondent. |
| Court | U.S. District Court — Western District of New York |
James J. Jones, Warwick, NY, pro se.
Frank J. Clark, Dist. Atty., Joseph J. Notaro, Assist. Dist. Atty., of counsel, Buffalo, NY, for respondent.
Petitioner Jones, currently incarcerated in a New York State prison and serving an indeterminate term of imprisonment of twenty years to life following a conviction in New York State Supreme Court, Erie County, filed a petition for a writ of habeas corpus October 30, 19982 pursuant to 28 U.S.C. § 2254 on the following grounds: (1) that the indictment against him was the result of an improperly granted resubmission motion for presentation by the district attorney to a second grand jury; (2) that, as a result of such fraud, the grand jury and the trial and appellate courts did not have subject matter jurisdiction over his case; (3) that the alleged fraudulent indictment violated his constitutional rights under the Fourth, Fifth and Fourteenth Amendments; (4) that he had been denied effective assistance of counsel; (5) that he had been denied due process based on alleged prosecutorial misconduct; (6) that the verdict that convicted him had been against the weight of the evidence; (7) that the state court's ruling with regard to a pre-trial Sandoval3 hearing was erroneous; and (8) that the trial court erroneously permitted petitioner to conduct a pro se examination of a witness.4 Pursuant to 28 U.S.C. § 636(b)(1)(B), the petition was referred to Magistrate Judge Leslie G. Foschio for an evaluation of the merits of the factual and legal issues raised by petitioner and a recommended disposition. Judge Foschio filed on July 26, 2002 a Report and Recommendation ("R & R") in which he recommended that the petition be denied in its entirety. Jones timely filed his objections to the R & R and oral argument was heard on this matter by the undersigned September 27, 2002.
While familiarity with the facts of this case is presumed, relevant facts will be discussed as needed.5 Jones shot and killed a man named Allen Cleague on November 2, 1980. Jones has never disputed that he shot and killed Cleague, but rather he has always maintained that Cleague displayed a weapon and that Jones shot Cleague in self-defense. Tr. 947-950.6 Following the shooting and a subsequent investigation, the Erie County District Attorney presented the case to a grand jury. The grand jury returned a no bill on February 10, 1981.7 Thereafter, the Erie County District Attorney filed a Motion for Resubmission to the Grand Jury pursuant to N.Y.Crim. Proc. Law § 190.75(3)(Mckinney 1993) in New York County Court, County of Erie.8 Such motion was granted June 17, 1983. Jones was indicted August 23, 1983 for second degree murder and criminal possession of a weapon in the second degree. Following an eight-day jury trial, Jones was convicted of second degree murder on December 19, 1984.9 Jones subsequently filed several unsuccessful appeals and petitions for habeas corpus relief with various New York State courts.10 His present petition for a writ of habeas corpus is now before this Court for disposition.
In recommending that Jones' petition be denied, Judge Foschio specifically found that there was no basis to grant habeas corpus relief based on Jones' first four causes of action because his challenge to the District Attorney's resubmission motion did not give rise to any constitutional violation. See R & R, pp. 17-21. In addition, Judge Foschio concluded that Jones had failed to demonstrate prosecutorial misconduct or that the verdict which resulted in his conviction was against the weight of the evidence. Id. at 21-30. Lastly, Judge Foschio found no merit to Jones' seventh and eighth causes of action because the Sandoval ruling in the state court was not so prejudicial as to constitute "fundamental unfairness" and because the state court's decision to allow Jones to examine a witness pro se resulted in no prejudice to Jones. Id. at 30-34.
Pursuant to 28 U.S.C. § 636(b)(1), this Court has conducted a de novo review of those portions of the R & R to which Jones objects and finds no merit to any such objection. Petitioner's objections consist of nothing more than his attempt to reargue his first four causes of action contained within his habeas corpus petition. In particular, Jones argues that the entire R & R is totally irrelevant because Judge Foschio "leapfrogged" over his jurisdictional argument — viz., that the District Attorney's resubmission motion had been improperly granted and therefore precluded the Grand Jury from having jurisdiction over him. See Pet'r's Obj. to the R & R, p. 13. Such an argument is without merit because, as Judge Foschio exhaustively explained in his R & R, petitioner's allegation that the state grand jury proceeding was erroneous or improper cannot provide the basis for federal habeas corpus relief in this case because any defect in the grand jury was cured by Jones' conviction before the petit jury.11 See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir.1989); see also Velez v. People, 941 F.Supp. 300, 316 (E.D.N.Y.1996); Barnes v. Giambruno, 2002 WL 850020, *7 (S.D.N.Y.2002). Petitioner has simply failed to direct this Court to any cognizable constitutional violations that may have occurred during the state court proceedings.12
Accordingly, it is hereby ORDERED that petitioner's Objections are overruled, that Judge Foschio's July 16, 2002 R & R is adopted in its entirety, that petitioner's motion for summary judgment is denied,13 that the October 30, 1998 petition for a writ of habeas corpus and the August 9, 1999 amended petition for a writ of habeas corpus are dismissed in their entirety, that this case shall be closed and that there is no substantial question presented for appeal and therefore a certificate of appealability will not be issued.
Petitioner initiated this action requesting habeas corpus relief under 28 U.S.C. § 2254 on March 3, 1999. The matter was referred to the undersigned by the Honorable John T. Elfvin on July 23, 1999 for all proceedings necessary to reach a determination in this matter.
The presentation to an Erie County Grand Jury of evidence regarding an investigation into Petitioner James J. Jones's involvement in the November 2, 1980 shooting death of Allen Cleague initially resulted in a no bill returned on February 10, 1981. Testifying before the Grand Jury were Gloria Jackson and Melida Gay Waker1 who stated that Petitioner shot the victim in self-defense after the victim threaten Petitioner with a pistol. By written statements dated April 30 and May 2, 1983, both Waker and Jackson recanted their Grand Jury testimony. Based on those statements, the Erie County District Attorney moved to resubmit the case to the Grand Jury and the motion was granted on June 17, 1983.
On August 23, 1983, an Erie County Grand Jury returned a two-count Indictment charging Petitioner with murder in the second degree and criminal possession of a weapon in the second degree, in violation of New York Penal Law §§ 125.25(1) and 265.03 (McKinney 1999). An eight-day trial commenced on December 5, 1984 and ended on December 19, 1984 with Petitioner convicted on the murder charge. Petitioner was sentenced on February 11, 1985 to an indeterminate term of incarceration of twenty years to life.
Petitioner timely appealed his conviction to the New York State Supreme Court of Appeals, Fourth Department which unanimously affirmed the conviction on December 20, 1989. People v. Jones, 156 A.D.2d 934, 548 N.Y.S.2d 824 (App. Div. 4th Dep't 1989). On direct appeal, Petitioner challenged (1) denial of due process in violation of the Fifth and Fourteenth Amendments based on alleged prosecutorial misconduct before the Grand Jury; (2) the verdict was against the weight of the evidence; (3) the trial court's ruling following a Sandoval hearing,2 was erroneous; and (4) the trial court improperly permitted the pro se examination of a witness. In a pro se brief submitted in further support of his appeal, Petitioner argued that prosecutorial misconduct at trial deprived him of a fair trial, and that the verdict was against the weight of the evidence. On January 29, 1990, Petitioner moved for leave to appeal to the New York Court of Appeals, raising essentially the same grounds as raised on his direct appeal. Leave to appeal to the Court of Appeals was denied on February 27, 1990. People v. Jones, 75 N.Y.2d 869, 553 N.Y.S.2d 300, 552 N.E.2d 879 (1990).
By petition dated March 9, 1993, Petitioner sought a writ of habeas corpus in New York Supreme Court, Erie County, arguing that the prosecution's motion to resubmit the case to the Grand Jury was "fraudulent" and, therefore, the Indictment was void. The writ was denied on June 1, 1993 as an improper collateral attack on the conviction.3
By motion filed July 9, 1996, Petitioner moved to vacate the conviction pursuant to New York Criminal Procedure Law § 440, arguing that (1) the trial court lacked subject matter and in personam jurisdiction; (2) the Indictment was fraudulently obtained; (3) newly discovered evidence would have exculpated Petitioner; and (4) the judgment was obtained in violation of Petitioner's state and federal constitutional rights. The motion was denied on April 22, 1997. Leave to appeal to the New York Court of Appeals was denied on December 3,1997.4
Petitioner filed the instant petition on October 30, 1998 in the Southern District of New York, asserting four grounds for relief, each essentially challenging the propriety of the District Attorney's resubmission of the case to the Grand Jury. Specif...
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