Shabazz v. Artuz

• Decision Date: 18 July 2003
• Docket Number: Docket No. 02-2320.
• Parties: Faiz SHABAZZ, Petitioner-Appellant, v. Christopher ARTUZ, Supt. Green Haven Cor. Fac., Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 154

336 F.3d 154

Faiz SHABAZZ, Petitioner-Appellant, v. Christopher ARTUZ, Supt. Green Haven Cor. Fac., Respondent-Appellee.

Docket No. 02-2320.

United States Court of Appeals, Second Circuit.

Argued: March 4, 2003.

Decided: July 18, 2003.

Robert J. Boyle, New York, New York for Petitioner-Appellant Faiz Shabazz.

Diane R. Eisner, Assistant District Attorney, Kings County District Attorney's Office (Charles J. Hynes, District Attorney, Leonard Joblove and Jane S. Meyers, Assistant District Attorneys, on the brief), Brooklyn, New York for Respondent-Appellee Christopher Artuz.

Before: McLAUGHLIN, JACOBS, POOLER, Circuit Judges.

POOLER, Circuit Judge.

Faiz Shabazz ("petitioner") appeals from the April 29, 2002 order of the United States District Court for the Eastern District of New York (Sterling Johnson, Jr., District Judge) denying his petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. The district court granted a certificate of appealability to examine whether the state court erred in holding that the Kings County District Attorney's Office violated petitioner's rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by 1) promising three prosecution witnesses leniency in their pending criminal cases in exchange for their testimony at petitioner's trial without disclosing these alleged promises to petitioner; and 2) allowing witnesses to testify falsely concerning the nature of their plea agreements and/or their expectations of receiving favorable treatment in exchange for their testimony. We find no basis to disturb the state court's factual finding that the Kings County District Attorney's Office made no undisclosed promises to Florence Boone, Louis Landers, or Sylvia Pullum. We also find no evidence that Landers and Pullum committed perjury when they testified that they had no expectation of favorable treatment or, if they did, that the Kings County District Attorney's Office knew or should have known about their perjury. Accordingly, we affirm the district court's decision.

BACKGROUND

On January 13, 1983, at approximately 10:15 p.m., Florence Boone and a woman known as "Candy" went to the apartment of Van Adams Troutman to purchase narcotics while petitioner waited with Chester Turner and a man known as "Tango" downstairs in a parked automobile. Louis Landers and Sylvia Pullum were among those present in the apartment. After purchasing narcotics and meeting petitioner at his car, Boone and Candy returned to the apartment under the pretense of needing to use the restroom. Boone and Candy went into the restroom and exited shortly thereafter, at which time Boone drew a gun and announced that she intended to rob the apartment. After Troutman pushed Candy, Boone shot and killed him.¹ Petitioner and Turner then entered the apartment, collected the money and narcotics, and fled with Boone and Candy.

Petitioner was arrested on February 9, 1983. The next day, Landers and Pullum identified petitioner from a lineup. Boone was also arrested, but the Kings County District Attorney's Office ("District Attorney's Office") agreed to recommend a term of incarceration of eight and one-third to twenty-five years if she pleaded guilty to a reduced charge and testified truthfully against petitioner. Boone accepted the plea arrangement. At her plea allocution, which occurred prior to petitioner's trial, Boone told the court that she received the gun from Candy.

On March 5, 1983, Landers and Pullum were arrested and charged with various narcotics offenses. Both refused the District Attorney's Office's initial plea offer to recommend sentences of one to three years imprisonment. However, the court released Landers and Pullum on their own recognizance and said, "I understand there is some possibility that you may be getting some kind of break. If you don't come back to court, you won't get the break." The court subsequently issued bench warrants for their arrests after they failed to make their court appearances. In the process of executing the bench warrants, police discovered Landers and Pullum in possession of controlled substances, drug paraphernalia, and stolen credit cards. Accordingly, they were charged with additional offenses. At the time of petitioner's trial, both Landers and Pullum were incarcerated while awaiting trial for their own offenses.

Petitioner's trial began on April 9, 1984. Boone testified that she had agreed with petitioner to participate in the robbery and that petitioner had provided her with the gun. In his opening statement, then-Assistant District Attorney Christopher Ulrich informed the jury that Boone had been promised the maximum sentence of eight and one-third to twenty-five years imprisonment if she pleaded guilty to Manslaughter in the First Degree and testified truthfully at petitioner's trial. Boone admitted during her testimony that she cooperated with the District Attorney's Office in order to receive the more lenient sentence associated with the charge of Manslaughter in the First Degree. Boone also testified that she expected to receive the maximum penalty associated with that charge.

Landers and Pullum identified petitioner as one of the two men who entered the apartment after the shooting. Both witnesses testified that the District Attorney's Office had not promised them leniency with respect to their pending cases in exchange for their testimony. Landers and Pullum also testified that they did not expect to receive a benefit by virtue of their testimony against petitioner.

On cross-examination, the three witnesses admitted to having serious drug habits. Landers and Boone testified that they were under the influence of narcotics when the shooting occurred. Landers and Pullum testified that they had taken cocaine and heroin the night they identified petitioner in the lineup. Landers testified that he initially lied to the police about his whereabouts at the time of the shooting. Moreover, Landers and Pullum testified to other facts that called into question the reliability of their eyewitness identifications. Landers admitted that, after identifying petitioner in the lineup, he recanted his identification and then reversed his recantation. Pullum testified that she could not identify petitioner from a photograph shortly after the incident. However, Pullum testified that she was able to identify petitioner from the lineup approximately one month later.

The jury convicted petitioner on April 12, 1984, and the court sentenced him to a term of twenty-two years to life imprisonment. Four days after petitioner was convicted, the District Attorney's Office recommended that the court release Landers and Pullum from custody on their own recognizance. Shortly afterwards, Landers pleaded guilty to his pending charges, and the judge noted that Landers had "made a lot of [deals] here." Ulrich, who also prosecuted petitioner, recommended a sentence of sixty days imprisonment. As Landers had already served seventy-seven days in prison, the court sentenced him to time served plus five years probation. Pullum also pleaded guilty. After consulting Ulrich, the assistant district attorney prosecuting Pullum's case recommended an unconditional discharge, and the sentencing court accepted the recommendation.

Boone was sentenced on September 4, 1984. Although her plea agreement provided for a sentence of eight and one-third to twenty-five years imprisonment, the sentencing court stated that a term of seven to twenty-one years of imprisonment would be fair and asked the District Attorney's Office to consent to the lesser sentence. Ulrich informed the court that Boone was not entitled to the reduction, but acceded to the court's request.

After exhausting his direct appeals, petitioner filed a motion in state court to vacate the judgment of conviction and dismiss the indictment, pursuant to New York Criminal Procedure Law § 440.10. Petitioner argued that the District Attorney's Office made undisclosed promises of leniency to Boone, Landers, and Pullum in exchange for their testimony. Petitioner also argued that Landers and Pullum committed perjury when they testified that they received no promises of leniency and expected no benefits as a result of their cooperation, and that Ulrich knew or should have known about this alleged perjury.

New York Supreme Court Justice Ruth Moskowitz, who presided over petitioner's trial, conducted an evidentiary hearing on June 26, 1992. Ulrich testified that the only promise he made to Boone was to recommend a sentence of eight and one-third to twenty-five years imprisonment. Ulrich testified that he may have recommended leniency for Landers and Pullum based upon their truthful testimony against petitioner. However, Ulrich testified that he made no promises to Landers or Pullum concerning their pending cases prior to their testimony at petitioner's trial.

The state court issued a comprehensive written order denying petitioner's motion on December 11, 1992. The state court found that the District Attorney's Office had made no undisclosed promises of leniency to Boone. Although Boone received a sentence that was different from the one provided by the plea agreement, the court found that the issue arose for the first time at Boone's sentencing and that the District Attorney's Office had not requested additional leniency on her behalf.

The state court also found that while Landers and Pullum received favorable treatment due to their cooperation, there was nothing to suggest that the District Attorney's Office procured their testimony by promising them leniency with respect to their pending criminal cases. The court accepted the truth of Ulrich's testimony and concluded that the judges's references to "breaks" and "deals" were insufficient to establish that the District Attorney's Office had made actual promises of leniency. The state court concluded that, "[i]n all likelihood," the judges simply assumed that...