460 F.Supp.3d 346
S.D.N.Y.2020Background
- Archie Cosey pleaded guilty in 1998 to first‑degree conspiracy and second‑degree murder and was sentenced to concurrent 25‑to‑life terms after a plea allocution in which he admitted being present, blocking the victim from leaving, and knowing the killing was ordered.
- Before trial of co‑defendants, ADA Rettler learned a grand‑juror witness (Edward Walker) had been incarcerated on the murder date and thus perjured his grand jury testimony; Rettler submitted an ex parte letter to the trial judge and did not disclose Walker’s perjury to defendants pre‑plea, citing safety concerns.
- Co‑defendants Dushain and Green were tried and convicted; years later Cosey pursued a CPL § 440.10 post‑conviction hearing (2014–2016) presenting recantations, alibi testimony, ballistics/forensic evidence, and Walker’s perjury; Justice Pickholz vacated Green’s and Dushain’s convictions on Brady/Giglio and IAC grounds but denied relief to Cosey.
- Cosey filed a successive § 2254 habeas petition raising Brady/due‑process (failure to disclose Walker perjury), several ineffective‑assistance‑of‑counsel claims (failure to develop expert evidence; failure to challenge Bobbitt’s unavailability; failure to support plea withdrawal), and freestanding actual innocence claims.
- The district court treated the petition as second/successive under AEDPA and analyzed the § 2244(b)(2) gatekeeping standards for newly discovered evidence and the § 2244(d) statute‑of‑limitations (timeliness), plus equitable tolling and the Schlup actual‑innocence gateway.
- The court held Cosey failed to meet § 2244(b)(2)(B)(ii) (clear‑and‑convincing actual‑innocence plus constitutional error), his ineffective‑assistance claims were largely time‑barred or meritless, and the petition was untimely under § 2244(d)(1) without entitlement to equitable tolling or the Schlup gateway; dismissal was ordered.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Brady/due‑process disclosure pre‑plea (Walker perjury/ex parte letter) | Walker’s perjury and the prosecutor’s ex parte letter were Brady/Giglio material that should have been disclosed before Cosey’s plea; nondisclosure deprived him of due process. | State: Walker’s false grand‑jury testimony was impeachment, not exculpatory, and disclosure risked Walker’s safety; under Ruiz prosecutors need not disclose impeachment pre‑plea. | Denied: Walker’s perjury did not clearly exculpate Cosey; under Ruiz impeachment need not be disclosed before a plea and ex parte contact did not show prejudice. |
| Ineffective assistance — failure to develop forensic/expert evidence | Counsel should have investigated ballistic/medical inconsistencies (Ortiz’s testimony vs. bullet path) and retained experts pre‑plea; that failure prejudiced plea decision. | Trial counsel had no reason pre‑plea to foresee the discrepancy (Ortiz testified at a later trial); hiring experts then would not have been obviously required; tactical choices were reasonable. | Denied: state court reasonably found no deficient performance pre‑plea and no prejudice under Strickland/Hill. |
| Ineffective assistance — failure to challenge Bobbitt’s unavailability / to support plea withdrawal | Counsel should have argued prosecutor/trial court pressured Bobbitt into invoking the Fifth and thereby deprived defense of exculpatory testimony; counsel failed to pursue plea‑withdrawal vigorously. | No evidence prosecutor or court improperly coerced Bobbitt; counsel did present withdrawal arguments and was not ineffective for failing to press meritless claims. | Denied: Pickholz’s credibility and factual findings were reasonable; counsel not ineffective for failing to press weak motions. |
| Successive petition gateway / actual innocence and timeliness (§2244) | New evidence from 440.10 hearing (recantations, alibi, ballistics, Walker perjury, Ortiz recantation) demonstrates actual innocence and that §2244(b)(2) and Schlup gateway apply; petition timely or tolled. | Many items are unreliable, inadmissible recantations, or impeachment only; Cosey failed §2244(b)(2)(B)(i)/(ii); petition untimely under §2244(d) and not entitled to equitable tolling or Schlup relief. | Denied: Court applied AEDPA gatekeeping; Cosey failed to show by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would convict; petition also time‑barred and not equitably tolled nor opened by Schlup. |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (1963) (prosecutor must disclose favorable material evidence to defendant)
- Giglio v. United States, 405 U.S. 150 (1972) (impeachment evidence relating to witness credibility must be disclosed)
- United States v. Ruiz, 536 U.S. 622 (2002) (no constitutional right to pre‑plea disclosure of impeachment evidence)
- Schlup v. Delo, 513 U.S. 298 (1995) (standards for gateway actual‑innocence claim to overcome procedural bars)
- McQuiggin v. Perkins, 569 U.S. 383 (2013) (actual‑innocence gateway may excuse AEDPA time bars for first petitions)
- Strickland v. Washington, 466 U.S. 668 (1984) (two‑pronged ineffective‑assistance standard)
- Hill v. Lockhart, 474 U.S. 52 (1985) (prejudice standard for IAC in guilty‑plea cases)
- Haouari v. United States, 510 F.3d 350 (2d Cir. 2007) (unsworn recantations do not constitute qualifying evidence under §2244)