Pepe v. Walsh
| Citation | 31 F.Supp.3d 441 |
| Decision Date | 24 May 2012 |
| Docket Number | No. 9:04–CV–0835 GTS/VEB.,9:04–CV–0835 GTS/VEB. |
| Parties | Vincent PEPE, Petitioner, v. James WALSH, Superintendent, Sullivan Correctional Facility, Respondent. |
| Court | U.S. District Court — Northern District of New York |
Platzer Luca & Pearl, LLP, Barry Fallick, Esq., Jillian S. Harrington, Esq., of Counsel, New York, NY, for Petitioner.
Hon. Andrew M. Cuomo, Attorney General for the State of New York, Jodi A. Danzig, Esq., Assistant Attorney General, of Counsel, New York, NY, for Respondent.
DECISION and ORDER
Currently before the Court, in this habeas corpus proceeding filed by Vincent Pepe (“Petitioner”) against Sullivan Correctional Facility Superintendent James Walsh (“Respondent”), pursuant to 28 U.S.C. § 2254, is a Report–Recommendation (1) recommending that (a) Petitioner's application for a write of habeas corpus be denied, and (b) the Court issue a Certificate of Appealability, and (2) referring the professional conduct of two attorneys for review by (a) the Chief United States District Judge of the Northern District of New York, and (b) the Appellate Division, Fourth Department. (Dkt. No. 102.) For the reasons stated below, the portions of the Report–Recommendation that address Petitioner's application for a writ of habeas corpus are accepted and adopted in their entirety, except the portion of the Report–Recommendation recommending that the Court issue a Certificate of Appealability; the portions of the Report–Recommendation referring the professional conduct of two attorneys for review by the Chief Judge and the Appellate Division will be addressed by Chief United States District Judge Gary L. Sharpe separate and apart from this Decision and Order; and Petitioner's application for writ of habeas corpus is denied.
Because the parties have submitted memoranda of law throughout the seven-and-a-half-year duration of this case that demonstrate an accurate understanding of the factual and procedural history of this case, the Court will not provide a detailed recitation of that history in this Decision and Order, which is intended primarily for the review of the parties. Rather, the Court refers the reader to the Report–Recommendation for a detailed description of the factual and procedural history of the case. (Dkt. No. 102.)
Petitioner asserts the following three grounds for relief. First, Petitioner claims that he was denied the effective assistance of counsel due to a conflict of interest involving the simultaneous representation of prosecution witnesses by Attorneys Joseph Hobika, Jr. (“Hobika”) and George Farber Aney (“Aney”). (See generally Dkt. No. 5.) Second, Petitioner claims that the prosecution violated its Brady disclosure obligations by failing to turn over exculpatory and impeachment evidence. (Id. ) Third, Petitioner claims that he was denied the effective assistance of counsel because his trial counsel, Kenneth P. Ray (“Ray”), failed to procure expert forensic testimony. (Id. )
On November 28, 2011, the Magistrate issued a Report–Recommendation recommending that Petitioner's application be denied. (Dkt. No. 102.) Generally, in pertinent part, the Report–Recommendation makes the following seventeen findings in support of its recommendations. First, because Petitioner's ineffective-assistance-of-counsel claims against Hobika and Aney were adjudicated on the merits, those claims are subject to the deferential standard of review under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). (See generally Dkt. No. 102.) Second, consideration of evidence presented to the County Court in support of Petitioner's first1 motion pursuant to New York Criminal Procedure Law (“CPL”) § 440.10 (“440.10 motion”) based on a claim of ineffective assistance of counsel against Hobika and Aney is precluded, because the County Court “rested [its] decision upon an adequate and independent state law ground.” (Id. ) Third, because a recent U.S. Supreme Court case, Cullen v. Pinholster, –––U.S. ––––, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011), limits the Court's review of Petitioner's ineffective-assistance-of-counsel claims against Hobika and Aney to the record presented to the Appellate Division, Fourth Department (“Appellate Division”), the Court is precluded from considering any evidence adduced at the Sparman hearing.2 (Id. ) Fourth, Petitioner failed to rebut, with clear and convincing evidence, the trial court's holding that Petitioner had not established the existence of an attorney-client relationship with either Hobika or Aney during the pre-arrest period. (Id. ) Fifth, because there was no evidence before the Appellate Division to suggest that Hobika simultaneously represented Petitioner and Dominic Crocilla (“Crocilla”) and/or Matthew Cuda (“Cuda”) during the post-arrest/pre-indictment phase,3 Petitioner failed to establish ineffective assistance of counsel by Hobika. (Id. ) Sixth, even assuming that evidence was presented to the Appellate Division demonstrating that Aney simultaneously represented Petitioner and Crocilla and/or Cuda during the post-arrest/pre-indictment phase, there was no evidence to support a finding that Petitioner's defense was adversely affected by Aney's simultaneous representation. (Id. ) Seventh, the Sparman hearing adduced evidence demonstrated that Hobika and Aney simultaneously represented Petitioner and Crocilla and/or Cuda; and, although that finding can have no bearing on Petitioner's habeas corpus application, the Report–Recommendation referred Hobika and Aney (a) for review by the Chief Judge of the Northern District of New York pursuant to Local Rule 83.4 of the Local Rules of Practice for this Court, and (b) to the Attorney Grievance Committee of the Appellate Division. (Id. ) Eighth, because the County Court deciding Petitioner's ineffective-assistance-of-counsel claim against Ray in Petitioner's 440.10 motion did not decide the claim either upon the merits or upon “an adequate and independent state law ground,” consideration of Sparman hearing evidence is permitted. (Id. ) Ninth, Ray's affirmation dated September 8, 2008, was untruthful. (Id. ) Tenth, the Assistant Attorney General (“AAG”) obtained and sought admission of “fraudulent, false, or perjured testimony” in the form of Hobika and Aney's testimonies, and Ray's affirmation. (Id. ) Eleventh, under either a de novo or AEDPA standard of review, the ineffective-assistance-of-counsel claim against Ray fails. (Id. ) Twelfth, Petitioner's claims against the trial court and District Attorney (“DA”) for failing to investigate and/or address potential conflicts of interest are without merit, and, in any event, the claim against the DA is time-barred. (Id. ) Thirteenth, Petitioner's claim that the prosecution failed to turn over any police notes taken during interviews with Petitioner's accomplice, David Benner (“Benner”), is purely speculative. (Id. ) Fourteenth, Petitioner suffered no prejudice when the prosecution failed to provide Petitioner with Benner's polygraph test results because, as a matter of law, Petitioner could not offer them as evidence at trial. (Id. ) Fifteenth, Petitioner's claim that Benner's arrest report was altered is unsupported by the evidence. (Id. ) Sixteenth, the trial court's finding that any non-disclosure of third-party suspects was harmless was not an unreasonable application of existing law, nor was it an unreasonable determination based on the facts in light of the evidence. (Id. ) Seventeenth, Petitioner's ineffective-assistance-of-counsel claim against Ray for failing to investigate forensic irregularities involving Benner's testimony fails, because (a) Petitioner has not offered any authority in support of his position that such failure was unreasonable, (b) Ray effectively cross-examined Benner, and (c) Petitioner has not established a substantial likelihood that the jury would have acquitted him based on a forensic expert's testimony. (Id. )
Based on these findings, the Report–Recommendation recommended the following: (1) Petitioner's application for a writ of habeas corpus should be denied, and (2) the Court should issue a certificate of appealability (“COA”) if it denies Petitioner's application for a writ of habeas corpus. (See generally Dkt. No. 102.) Also based on these findings, the Report–Recommendation referred the professional conduct of Hobika and Aney for review by the Chief Judge of the Northern District of New York and the Appellate Division, Fourth Department. (Id. )
On February 23, 2011, Petitioner filed an Objection to the Report–Recommendation. (Dkt. No. 114.) Generally, Petitioner's Objection asserts the following eleven arguments. First, the recent U.S. Supreme Court case, Pinholster, does not preclude the Court from considering the evidence adduced at the Sparman hearing. (See generally Dkt. No. 114.) Second, the Appellate Division's decision was not a reasonable application of clearly established federal law, nor was it based on a reasonable determination of the facts. (Id. ) Third, the Court is permitted to consider the evidence submitted to the County Court in support of Petitioner's 440.10 motion as that evidence relates to Petitioner's ineffective-assistance-of-counsel claims against Hobika and Aney. (Id. ) Fourth, the Report–Recommendation erred in finding that the trial court's factual findings during the Huntley hearing are entitled to a presumption of correctness. (Id. ) Fifth, the evidence adduced at the Sparman hearing established that Hobika and Aney represented Petitioner prior to his arrest. (Id. ) Sixth, whether or not the Court considers the evidence adduced at the Sparman hearing, there is sufficient evidence to support a conclusion that Hobika and Aney suffered from actual conflicts of interest during the post-arrest/pre-indictment phase. (Id. ) Seventh, Hobika and...
To continue reading
Request your trial
-
Pepe v. Walsh
...31 F.Supp.3d 441Vincent PEPE, Petitioner,v.James WALSH, Superintendent, Sullivan Correctional Facility, Respondent.No. 9:04–CV–0835 (GTS/VEB).United States District Court, N.D. New York.Signed May 24, Petition denied. [31 F.Supp.3d 447] Platzer Luca & Pearl, LLP, Barry Fallick, Esq., Jillia......