Opinion
04 Civ. 3403 (DLC).
October 10, 2006
Anthony Isaacs 85-A-1147 Sing Sing Correctional Facility Ossining, New York, For Pro Se Petitioner.
Robert M. Morgenthau District Attorney of the County of New York Christopher P. Marinelli Assistant District Attorney New York, New York, For Respondent.
OPINION AND ORDER
Anthony Isaacs ("Isaacs") objects to the June 20, 2006 report ("Report") issued by Magistrate Judge Henry Pitman recommending that Isaacs' petition for a writ of habeas corpus be denied as untimely. This is the second report in which Judge Pitman has recommended that the petition be denied as untimely. In his first report, issued on January 28, 2005, Judge Pitman sua sponte considered whether Isaacs may be able to circumvent the one year statute of limitations that applies to the filing of habeas petitions through the assertion of a claim of actual innocence. See 28 U.S.C. § 2244(d) (1). In his objections to that report, Isaacs made an actual innocence argument, and in August 2005, the petition was referred again to Judge Pitman for findings on the argument. See Isaacs v. Smith, No. 04 Civ. 3403(DLC), 2005 WL 1947811 (S.D.N.Y. Aug. 12, 2005) ("August 2005 Opinion"). Familiarity with the August 2005 Opinion is assumed. For the following reasons the petition is denied.
Background
In January 1985, Isaacs was convicted of second degree murder, second degree attempted murder and second degree criminal possession of a weapon. The following description of the trial evidence is taken from the August 2005 Opinion.
On the evening of December 9, 1983, Mario Chloros ("Chloros") and Nasser Judeh ("Judeh") drove from Clifton, New Jersey to Manhattan to buy angel dust. Their car got a flat tire and the men pulled over at 129th Street in Manhattan. As the men changed the tire, Isaacs approached and claiming that he was a police officer, put a revolver to Judeh's head and threatened to "drop" him where he stood. After pushing Judeh and Chloros against a car, Isaacs shot Judeh in the leg. Judeh began to run away and petitioner fired three more shots at him. Isaacs then fired a shot into Chloros' head, killing him.
Eye witness Maurice Lee ("Lee"), who had known Isaacs for fifteen years, was at a friend's apartment on the fifth floor of 54 East 129th Street (the "building") when he heard what sounded like two gunshots. Lee went to the window and saw Isaacs standing with a gun in his hand over the dead Chloros. Three or four days after the murder, Lee contacted the "crime stoppers" hotline and reported what he had seen and was subsequently interviewed by the detective assigned to the case. After further investigation, a detective conducted a lineup. Judeh viewed the lineup and identified Isaacs as the man who shot him. At trial, Judeh again identified Isaacs as the man who shot him. Lee also testified at trial and identified Isaacs as the man standing over Chloros. Isaacs was convicted on all counts on January 10, 1985.
In response to Judge Pitman's January 2005 report, Isaacs has identified five pieces of evidence that he contends show his actual innocence. Three concern Lee's testimony: building tenants who lived on the fifth floor contend in two 1985 affidavits that Lee has never been in their apartments; one 1999 affidavit suggests that Lee provided inaccurate information to the police about the shooting when he was interviewed before trial. The fourth piece of evidence is a February 2005 affidavit from Sam Woodrow ("Woodrow"), who asserts that he saw a man who was not Isaacs at the scene of the crime. Finally, petitioner asserts that he has an alibi.
The Report discusses each of these five pieces of evidence and concludes that they do not constitute new, reliable evidence of actual innocence. Isaacs has objected to the Report. Discussion
The court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The court shall make a de novo determination of the portions of the report to which petitioner objects. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Petitioner contends that the Report (1) erred in stating theSchlup standard for evaluation of evidence presented to support a claim of actual innocence; (2) erred in making an assessment of the likely impact of his newly discovered evidence on reasonable jurors; and (3) incorrectly applied an "absolute certainity" standard to the evidence. The Court in Schlup held that habeas petitioners asserting innocence as a gateway to defaulted claims must establish that, in light of new evidence, "it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt." Schlup v. Delo, 513 U.S. 298, 299 (1995). This year, the Court returned again to theSchlup test, emphasizing that a credible gateway claim first "requires `new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts or critical physical evidence that was not presented at trial.'" House v. Bell, 126 S.Ct 2064, 2077 (2006) (quoting Schlup, 513 U.S. at 324). Where such new reliable evidence is present, the habeas court "must consider `all the evidence,' old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under the `rules of admissibility that would govern at trial.'" Id. at 2077 (citing Schlup, 513 U.S. at 327-328). The habeas court's function "is not to make an independent factual determination about what likely occurred but rather assess the impact of the evidence on reasonable jurors." Id. In making this assessment, the court may consider the credibility of witnesses, including those who testified at trial. Id. at 2078. A finding that a petitioner has met the Schlup standard is reserved for the "extraordinary case where it is necessary to avoid a `manifest injustice.'" Id. at 2077.
Before addressing the merits of Isaacs' actual innocence claim, several observations are in order. Isaacs never presented an actual innocence claim to the state courts and did not include the claim in his habeas petition. He had never articulated in his state court litigation that he had an alibi for the night of the crime, and of course, he never presented the Woodrow affidavit to a state court since that affidavit was first obtained in the month after Judge Pitman's January 2005 report, the report that identified actual innocence as a potential avenue for obtaining habeas review of a time-barred claim. Therefore, if it appeared that there was merit in this claim it would be necessary, at a minimum, to stay the petition so that the claim could be presented to the state courts for review. Because the evidence now presented by Isaacs does not meet the Schlup standard, the petition may be denied without further review.
It is only necessary in this Opinion to discuss one of the five pieces of evidence that Isaacs proffers as evidence of actual innocence. Only the Woodrow affidavit qualifies as new evidence that could toll the limitations period. See Isaacs, 2005 WL 1947811, at *3 n. 2. Thus, for this and the other reasons described in the Report, the 1985 affidavits from the two building tenants, the 1999 affidavit about Lee's statement to the police, and the alibi evidence do not constitute new, reliable evidence of actual innocence.
As noted, in his objections to the January 2005 Report the petitioner submitted a February 20, 2005 affidavit from Woodrow. Woodrow claims that on the night of the shooting, at approximately 11:00 p.m., he saw a man lying on the ground in front of 61 East 129th Street "moving slightly." Woodrow noticed a man walking away "with what looked like a gun in his hand." Woodrow states he is certain that the man who he saw walking was not Isaacs, who he has known since childhood. Woodrow states that he is coming forward now because he is 79 years old and he has to "to get this off [his] chest out of a sense of guilt and neglect." Woodrow did not come forward earlier with this evidence because the police "manhandled" him at the scene of the crime and he was "too scared" to get involved.
The Report is correct in concluding that Woodrow's affidavit, when considered with the trial evidence and even the four other pieces of evidence now identified by Isaacs, does not establish that it is more likely than not that no reasonable juror would have found the petitioner guilty beyond a reasonable doubt. Woodrow did not see the shooting. He did not even see the face of the man who he observed "walking away." At trial, two witnesses who did not know each other each identified the petitioner as the shooter. One witness had known the petitioner for years and the other was one of the victims of the crime. Petitioner has not shown that this is the extraordinary case in which a conviction must be vacated to avoid a manifest injustice.
Conclusion
The petition is dismissed as time-barred. The recommendation of Magistrate Judge Pitman is adopted, and the petition for a writ of habeas corpus is denied. In addition, I decline to issue a certificate of appealability. Isaacs has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). I also find, pursuant to United States Code, Section 1915(a)(3), that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss the petition.
SO ORDERED.