Parker v. Smith

• Decision Date: 01 May 2012
• Docket Number: Civil Action No. 9:10–CV–00364(DNH).
• Citation: 858 F.Supp.2d 229
• Parties: Vernon E. PARKER, Jr., Petitioner, v. Joseph T. SMITH, Respondent.
• Court: U.S. District Court — Northern District of New York

858 F.Supp.2d 229

Vernon E. PARKER, Jr., Petitioner,

v.Joseph T. SMITH, Respondent.

Civil Action No. 9:10–CV–00364(DNH).

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

May 1, 2012.

Vernon E. Parker, Wallkill, NY, pro se.

Eric T. Schneiderman, Attorney General for the State of New York, Alyson J. Gill, Esq., Ass't Attorney General, New York, NY, for Defendant.

MEMORANDUM—DECISION and ORDER

DAVID N. HURD, District Judge.

Petitioner Vernon E. Parker, Jr. filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in which he raises the following grounds for habeas relief: (1) the prosecutor suppressed exculpatory evidence; (2) trial counsel was ineffective; (3) the trial court erred when it failed to dismiss the jury panel after the New York Court of Appeals invalidated New York's death penalty; (4) the prosecutor committed a Batson¹ violation; and (5) the prosecutor engaged in misconduct because he was aware that the underlying motive for the crimes was specious, that his witnesses framed petitioner, and he knew or should have known his witnesses committed perjury. Dkt. No. 1 at 5–7. Respondent has filed a reply and the relevant state court records. See Dkt. Nos. 25–26. Petitioner has filed a Traverse. Dkt. No. 29.² For the reasons that follow, the petition will be denied and dismissed.

I. BACKGROUND

Petitioner challenges a March 31, 2005, judgment of conviction in Broome County Court of three counts of first degree murder (N.Y. Penal Law §§ 125.27(1)(a)(v), (1)(a)(vii) and (1)(b)), and one count of first degree burglary (N.Y. Penal Law § 140.30(1)). Dkt. No. 1 at 2; Dkt. No. 26, Resp'ts Mem. of Law (“R. Mem.”) at 1. The proof presented at trial showed that petitioner and his codefendant, Robert Williams, unlawfully entered the home of petitioner's mother-in-law and her fourteen year old daughter shortly after 11:00 p.m. on July 20, 2002. Petitioner fatally shot both women. People v. Parker, 49 A.D.3d 974, 975, 854 N.Y.S.2d 233 (3d Dep't 2008). At the time of the murders, petitioner lived in Baltimore, Maryland with his wife, and the victims lived in Binghamton, New York. Id. Both victims were scheduled to testify against petitioner on July 30, 2002, in a criminal trial stemming from allegations that he sexually assaulted the teenaged victim. Id.; Tr. of Trial of Vernon Parker (“Trial Tr.”) at 5366–68.

The Appellate Division, Third Department, briefly summarized the proof presented in this case:

In addition to proof that both victims were scheduled to testify against defendant in the upcoming criminal trial, the People also presented proof that a car rented for defendant's use the night before the murders had been driven approximately 600 miles between then and the day after the murders, defendant's fingerprint was found inside this rental car, and the keys to it were found hidden under his mattress. In addition, the soles of his shoes perfectly matched footprints at the murder scene (including a piece of tape stuck to the bottom of one shoe), fibers on these shoes were consistent with carpet fibers inside the victims' home and two men generally fitting the description of defendant and Williams were seen fleeing the murder scene within minutes of a 911 call by the teenage victim reporting “a man in [her] house.” Furthermore, cell phone records placed defendant and Williams traveling north from the Baltimore, Maryland, area throughout the evening of the murders (with one such record placing Williams 80 miles from Binghamton at approximately 9:00 p.m.), Williams was ultimately identified from a lineup as one of these fleeing men and the victims were killed with a 9 millimeter semiautomatic pistol that had been given to defendant by a friend the day before the murders.

Parker, 49 A.D.3d at 978–79, 854 N.Y.S.2d 233. The specific facts are known to the parties and will be repeated only to the extent necessary to address petitioner's claims for habeas relief.

Petitioner was sentenced to serve three concurrent terms of life in prison without parole for the murder convictions and a concurrent term of twenty-five years for the burglary conviction. Dkt. No. 1 at 2; R. Mem. at 1.³ He appealed to the AppellateDivision, Third Department, which affirmed his conviction. Parker, 49 A.D.3d at 974–79, 854 N.Y.S.2d 233. The New York Court of Appeals denied leave to appeal on May 29, 2008. People v. Parker, 10 N.Y.3d 868, 860 N.Y.S.2d 494, 890 N.E.2d 257 (2008).

Petitioner also filed a motion to vacate his conviction pursuant to New York Criminal Procedure Law (“CPL”) § 440.10 on August 5, 2009. Dkt. No. 25–8, Ex. H. The motion was denied by the Broome County Court on December 22, 2009. Dkt. No. 25–15, Ex. O. Petitioner's application for leave to appeal the denial of his motion was denied by the Appellate Division, Third Department, on March 16, 2010. Dkt. No. 25–17, Ex. Q. Petitioner's request for re-argument was denied on May 3, 2010. Dkt. No. 25–19, Ex. S.

This action followed.

II. DISCUSSIONA. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state court only if, based upon the record before the state court, the adjudication of the claim: (1) was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Cullen v. Pinholster, ––– U.S. ––––, 131 S.Ct. 1388, 1398, 1400, 179 L.Ed.2d 557 (2011) (citing 28 U.S.C. §§ 2254(d)(1), (2)); Premo v. Moore, ––– U.S. ––––, 131 S.Ct. 733, 739, 178 L.Ed.2d 649 (2011); Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). AEDPA “imposes a highly deferential standard for evaluating state-court rulings” and “demands that state-court decisions be given the benefit of the doubt.” Felkner v. Jackson, ––– U.S. ––––, 131 S.Ct. 1305, 1307, 179 L.Ed.2d 374 (2011) (per curiam) (quoting Renico v. Lett, ––– U.S. ––––, 130 S.Ct. 1855, 1862, 176 L.Ed.2d 678 (2010)) (internal quotation marks omitted). Federal habeas courts must presume that the state courts' factual findings are correct unless a petitioner rebuts that presumption with “ ‘clear and convincing evidence.’ ” Schriro, 550 U.S. at 473–74, 127 S.Ct. 1933 (quoting § 2254(e)(1)). “The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold.” Id. at 473, 127 S.Ct. 1933.

B. Brady Violation

Petitioner claims in Ground One of his petition that inmate Anthony Tillman told police that co-defendant Williams confessed to Tillman that petitioner was innocent. Dkt. No. 1 at 5, Ground One; Dkt. No. 6, Aff. in Support of Pet. for Writ of Habeas Corpus (“Affidavit”), at 10–11; ⁴ Dkt. No. 29, Traverse, at 4–9. Petitioner asserts that the prosecutor did not inform defense counsel of Tillman's statements, in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Dkt. No. 6 at 10–11.

Petitioner raised this argument in his section 440 motion, claiming that Williams told Tillman that Williams committed the murders and that petitioner's wife and two others (Gregory Isaac, Jr. and Jonathan Webb) were implicated in the murders and framed petitioner. Dkt. No. 25–8, Ex. H, at 48–82. Petitioner claimed that the prosecutor knew of Tillman's statement because investigator Thomas Eggleston visited Tillman at the jail and obtained a detailed account of Williams's statements to Tillman, but did not disclose the information to petitioner or his counsel. Id. at 48, 57–58. Petitioner argued that because the prosecutor did not disclose Tillman's statements, he was deprived a fair opportunity to investigate, and that Tillman's statements “fit exactly” with the defense theory of the case—that petitioner was framed. Id. at 69. Petitioner also admitted, however, that he and his mother possessed a copy of Tillman's statement, and gave a copy to defense counsel, in April 2004. Id. at 87–91.

The state court denied petitioner's motion pursuant to CPL § 440.30(2), (4)(a), (4)(b) and (4)(d). Dkt. No. 25–15, Ex. O at 4. The court ruled that it could not consider Tillman's statement as a “sworn statement or as an affirmation” in support of petitioner's motion because Tillman's signature appeared only on the last page of the statement and, although it was notarized, there was no indication “the statement was made under oath or whether the notary only acknowledged the signature.” Dkt. No. 25–15 at 2. The trial court also noted there was no language in the statement that “it was affirmed under penalty of perjury,” and that it was not dated and notarized on the same date. Id. at 1.⁵ The court then stated that if it were to consider Tillman's statement as a sworn statement or affirmation, “the result would be the same,” and considered the merits of petitioner's arguments. Id. at 2.

Respondent argues that petitioner's Brady claim is barred by an adequate and independent state court ground because the state court relied upon CPL § 440.30(4)(b) in support of its decision denying petitioner's motion. Dkt. No. 25–15, Ex. O at 4; Dkt. No. 26, R. Mem. at 34. Section 440.30(4)(b) provides that, “[u]pon considering the merits” of a section 440 motion, the court may deny the motion without conducting a hearing if it is “based upon the existence or occurrence of facts and the moving papers do not contain sworn allegations substantiating or tending to substantiate all the essential facts.”

There is a split in authority as to whether a state court's denial of a motion pursuant to section 440.30(4)(b) constitutes an adequate and independent state court ground precluding federal habeas review. See Lopez v. Ercole, No. 09 CIV. 1398, 2010 WL 1628994,...