Opinion
99-CV-0681E(Sr).
March 16, 2001.
Pro Se, Wallkill, NY, for plaintiff.
Thomas H. Brandt, Esq., Asst. Niagara County District Attorney, Lockport, NY, for defendant.
MEMORANDUM and ORDER
Robie Drake ("petitioner") filed his application, for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming, inter alia, that he was denied his due process rights by the admission at trial of perjured testimony from Richard Walter. By Report and Recommendation ("R R") dated December 6, 2000, United States Magistrate Judge H. Kenneth Schroeder, Jr. recommended that petitioner's application be denied in its entirety.
Pursuant to 28 U.S.C. § 636 (b)(1), petitioner filed his Objections to the R R and the undersigned has undertaken a de novo determination as to those portions of the R R to which objections were made. Such endeavor leads the undersigned to adopt the findings and conclusions in the R R, its rationale being found to be well-reasoned. However, supplementation of the R R is appropriate insofar as petitioner claims that Judge Schroeder erred in failing to order certain requested discovery and, further, in failing to consider the effect of the alleged perjury by Walter, who had testified as an expert witness for the prosecution.
Rule 6(a) of the Rules Governing Section 2254 Cases in the United States District Courts states that "[a] party shall be entitled to invoke the processes of discovery * * * if * * * the judge in the exercise of his discretion and for good cause shown grants leave to do so, but not otherwise." A habeas petitioner, however, is not presumptively "entitled to discovery as a matter of course." Bracy v. Gramley, 520 U.S. 899, 904 (1997). On this issue, the question for Judge Schroeder to have considered is whether petitioner's "allegations reasonably permit inferences that, if credited, would entitle" him to relief under section 2254. See Bisaccia v. U.S., 2000 WL 703014, at *6 (E.D.N.Y Apr. 12, 2000). Judge Schroeder properly determined that the facts of this case do not justify such discovery.
The gravamen of petitioner's discovery motion is that such "may well demonstrate that the State's `expert' witness, Richard D. Walter, committed perjury at petitioner's 1982 trial, and that the prosecutor knew [or should have known] Walter was committing perjury * * *." Drake Aff. in Support of Discovery !63. However and as found by both Judge Schroeder and in prior state court proceedings, there is nothing in the record indicating that the prosecution knew, or should have known, that Walter was, or may have been, perjuring himself with respect to his credentials as an expert. See R R at 10-11; People v. Drake, 684 N.Y.S.2d 102, 102 (4th Dep't A.D. 1998); see also 28 U.S.C. § 2254 (e)(1) ("[A] determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."). Moreover, petitioner is not entitled to pursue a fishing expedition in hopes of finding some heretofore unknown damaging evidence, especially where petitioner has failed to explain how the evidence he desires is fundamentally different from, and not merely cumulative to, that already considered by any previous court and already present in the record.
Even assuming that petitioner is correct in his assertion that Walter perjured himself in testifying as an expert witness and that the prosecution acted as a willing participant, habeas relief is still not warranted. In this regard, petitioner has failed to show "any reasonable likelihood that the false testimony * * * affected the judgment of the jury" and, therefore, cannot show that he is entitled to set aside that jury's verdict. U.S. v. Agurs, 427 U.S. 97, 103 (1976). His suppositions to the contrary are simply unavailing. The undersigned's review of the trial record shows that, absent Walter's testimony, the evidence implicating petitioner in the commission of the underlying crimes was substantial, overwhelming and established the essential elements thereof beyond a reasonable doubt. No rational trier of fact could have found differently and the R R was correct in coming to this conclusion.
Accordingly, it is hereby ORDERED that the petitioner's Objections are overruled, that the R R is adopted in its entirety, that this petition for a writ of habeas corpus is dismissed in its entirety and that this case shall be closed. There having been no substantial showing by petitioner of the denial of a constitutional right, the Court declines to issue a certificate of appealability. See 28 U.S.C. § 2253.