UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ──────────────────────────────────── WILLIAM FIGUEROA,
Petitioner, 20-cv-3013 (JGK)
- against - ORDER
KEYSER,
Respondent.
──────────────────────────────────── JOHN G. KOELTL, District Judge:
The Court has received the attached letter from the petitioner. The petitioner apparently asks for discovery in connection with his prior criminal convictions. The petitioner has not yet exhausted his state court remedies in connection with his current application before this court. Any request for discovery should be directed to the state court. To obtain discovery in connection with his federal habeas petition, the petitioner would need to show good cause, which he has not yet shown. SO ORDERED.
Dated: New York, New York February 22, 2021 _____/s/ John G. Koeltl_______ John G. Koeltl United States District Judge Mr. William Figueroa-91-A-2142 Sullivan Correctional Facility . P.O. Box 116 Fallsburg, New York February 16, 2021 Hon. John G. Koelt] United States District Judge Daniel Patrick Moynihan United State Courthouse 500 Pearl Street New York, New York 10007 Re: Figueroa v. Keyser, No. 20 Civ. 3013 GK) (RWL) Your Honor: PLEASE TAKE NOTICE, I William Figueroa, petitioner, duly sworn, pursuant to Title 28 U.S.C. 1746, Iam writing to this Court requesting that it intervene on my behalf a basis of sealed minutes of the ex parte discussion between Justice Michael L. Pesce and the trial prosecutor, Marianne Crosley’s Esq., “repeated private access” concerning pretrial disclosure of a copy of the June 5, 1990 conference minutes, which the prosecution sent to the trial court’s, is now a part of the record, and the non-disclosed DD-5 report numbered 176 and 197, there is no affirmation (either direct or implied) made by me or counsel that he knowingly, intelligently and voluntary waived his right to be present during the in-camera proceeding.! The Supreme Court has held that the “Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’” Nevada v. Jackson, 569 U.S. 505,509 (2013). The reports does not support this assertion, petitioner is not in position to carry out his own investigation to substantive his allegation. These reports are not just Brady* there are clear evidence of petitioner’s “Actual Innocent.” As the Supreme Court directed in the case of In Re Davis, this Court “should receive testimony and made finding of fact” because Mr, Figueroa has made a credible claim of actual innocence. 557 U.S. 952 (2009). The Kings County District Attorney Office, when routinely violated defendant’s due process rights under Brady/Giglio which state that statutes of limitation often prevent defendant has a constitutional right to present evidence before the jury as to the circumstance under which 1 Petitioner Incorporates by reference the prior contention in his opposition to respondent's letter dated February 3, 2021 pursuant to this Court’s January 27 Order (ECF #34). ? See Brady v. Maryland, 373 U.S. 83 (1963). ? Even if defense counsel had known of the hearing in the Eddie Garcia statement that contained the real perpetrator name and statements he did not know that any such evidence or information was favorable to his client, but the prosecution did. It is obvious that the People are still attempting to hide Brady material from petitioner
his trial attorney were prohibited from reviewing and/or possessing what was or has known to the District Attorney’s Officer, to be inter alia” police report 176 & 197 until 2018, when they finally respondent to defendant January 23, 2018 motion to renew he August 23, 1991 motion to vacate the judgment of conviction, pursuant to C.P.L. §440.10.4 For the least 32 years, spanning from 1990 and 2021 the petitioner sough production of the still missing DD-5 reports 176 & 197. At the very least, seven days after the shooting, Eddie Garcia identified Manuel Rivera at a police interview by P.O. Rosario in which stated for the second time he had killed Maria Hernandez. When these two DD-5 reports numbered 160 and 202 relating to Eddie Garcia is crucial important to the defense which was made so late as to prevent the defense from using the material effectively in preparing or presenting its case. This may explain the serious improprieties in the People which have obviously conceded that the trial prosecutor violated its disclosure obligation by delaying unit the eve of trial the disclosure of DD-5 reports numbered 160 and 202, which relate to the admission of Eddie Garcia. ° Wherefore, this Honorable Court is respectfully urged to order the Assistant Attorney General to produce the requested examination the still missing DD-5 reports 176 & 197, in all respect.’ Th subniuted,
William Frgudroa
CC: Mr. Mathew Keller Assistant Attorney General 28 Liberty Street New York, New York 10005 (212) 416-6072
4 The prosecution has failed to disclose missing DD-5 reports 176 & 197. This is an unfortunate example of former District Attorney Charles Hynes policy and practice of encouraging prosecutors to hold back exculpatory or impeaching evidence from petitioner in order to an advantage in a criminal prosecution. This is particularly true in light of the paucity of new discovered evidence or prosecutorial misconduct, can come in light. 55 See Scrimo v. Lee, 935 F.3d 103{2d Cir. 2019) (holding that the state trial’s exclusion of witness testimony as extrinsic evince on collateral matter, a discretionary rule, was an unreasonable application of Crane v. Kentucky, 106 §.Ct, 2142 and Chambers v. Mississippi, 93 S. Ct. 1038). See Exhibit A. 7 Based on Garcia v. Herbert, 2018 WL6272778, at *2 (E.D.N.Y. 2018} decision Judge Weinstein, Senior United States District Judge noted that: “fiJt fis] the duty of every judge and every court to examine its own decisions, and the decision of other courts without fear and to revise them without reluctance.” Baker v. Lorillard, 4 NY 257, 261 (1850).
EXHIBIT A
Om ieapn Weonl [Ere Cal] Har Cas [Ro Larceny ia HYSD he me itn, . . 0, Ele ' . ei; : je YF FINGEAPRINT OFFICER ONLY: THIS DOX WILE OF UTHLIZE0 BY INVESTIGATOR WHENEVER On . WHEN USING THIS FORM 7G CLOSE A CASE “NO RESULTS,” . tate Tre Fears Sony 1 Cary flopat = Biller! (epan nm Goel) aK . ? Ore Tre NePae Bor 31 tp Repon - Ootined □□□ n Deon, ‘ . 5 . fre, Doe, Orne Saure Varad Vote Enpy nm Denia Ae Tine, One, 19 u DO ves O ty Erounce Cotainga ODS OE : 1 rr te -_——____ ? : Cen Stone Photos Dy [Ere Aran nh Gaus; Fen? Ove up 8 fd Stale Aestihcaton Detail ; PERP deourale Facts C3 No Evigensev 19 CD) ct Unsooporative Cenpunsat . . 71, w-OF ‘Hddie Garedao ConA a RUN ‘ roe est *. . ; ‘ bene . PO Rovardo,B3Per Coom Relacioos,cranslzted. for Eddie Garcia . who called the B3BQD, and stated the foliovlng. ~~ ba called telephone # 821+B828! Looking t¢ peak co hig frie , ‘ peaking to Rivera Rivers etated chat he vag ccgrad and van oO Rfeo because he killed Haria Hernandez, Rivera etated to [Pane @ $1,000 hy Julio Enrique Martiner end that be used « .38 mao} tiner to a drog deoler and hie brand name ig STARR and char |PoAP? . ez etsy in Bushwick Park,” . serto Rican 28yre 5'? 1601be Aka INDIO JH/8 Puerto Rican, 32yre $'9 mad build dirty blond hair,full |. a PERP 1 J on $3,400 bail for drug aale, :
1 ad . nmny . □ PERF I jown ag Alex Garcia, Jute Garcia Jose Garcia, Jose Soidana,
haute Prnited Thi Asgsoy Ha Suporetey Sinai De O'Keeffe A Cy th An : . , Peep] Rar
Ea, . silt’): Foose, ready Cay, SEA, 26 =e CORE; a ion, . > Ee . ia 1its* fr ‘ ia tut . T. FINGERPRINT OFFICER ONLY.
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ──────────────────────────────────── WILLIAM FIGUEROA,
Petitioner, 20-cv-3013 (JGK)
- against - ORDER
KEYSER,
Respondent.
──────────────────────────────────── JOHN G. KOELTL, District Judge:
The Court has received the attached letter from the petitioner. The petitioner apparently asks for discovery in connection with his prior criminal convictions. The petitioner has not yet exhausted his state court remedies in connection with his current application before this court. Any request for discovery should be directed to the state court. To obtain discovery in connection with his federal habeas petition, the petitioner would need to show good cause, which he has not yet shown. SO ORDERED.
Dated: New York, New York February 22, 2021 _____/s/ John G. Koeltl_______ John G. Koeltl United States District Judge Mr. William Figueroa-91-A-2142 Sullivan Correctional Facility . P.O. Box 116 Fallsburg, New York February 16, 2021 Hon. John G. Koelt] United States District Judge Daniel Patrick Moynihan United State Courthouse 500 Pearl Street New York, New York 10007 Re: Figueroa v. Keyser, No. 20 Civ. 3013 GK) (RWL) Your Honor: PLEASE TAKE NOTICE, I William Figueroa, petitioner, duly sworn, pursuant to Title 28 U.S.C. 1746, Iam writing to this Court requesting that it intervene on my behalf a basis of sealed minutes of the ex parte discussion between Justice Michael L. Pesce and the trial prosecutor, Marianne Crosley’s Esq., “repeated private access” concerning pretrial disclosure of a copy of the June 5, 1990 conference minutes, which the prosecution sent to the trial court’s, is now a part of the record, and the non-disclosed DD-5 report numbered 176 and 197, there is no affirmation (either direct or implied) made by me or counsel that he knowingly, intelligently and voluntary waived his right to be present during the in-camera proceeding.! The Supreme Court has held that the “Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’” Nevada v. Jackson, 569 U.S. 505,509 (2013). The reports does not support this assertion, petitioner is not in position to carry out his own investigation to substantive his allegation. These reports are not just Brady* there are clear evidence of petitioner’s “Actual Innocent.” As the Supreme Court directed in the case of In Re Davis, this Court “should receive testimony and made finding of fact” because Mr, Figueroa has made a credible claim of actual innocence. 557 U.S. 952 (2009). The Kings County District Attorney Office, when routinely violated defendant’s due process rights under Brady/Giglio which state that statutes of limitation often prevent defendant has a constitutional right to present evidence before the jury as to the circumstance under which 1 Petitioner Incorporates by reference the prior contention in his opposition to respondent's letter dated February 3, 2021 pursuant to this Court’s January 27 Order (ECF #34). ? See Brady v. Maryland, 373 U.S. 83 (1963). ? Even if defense counsel had known of the hearing in the Eddie Garcia statement that contained the real perpetrator name and statements he did not know that any such evidence or information was favorable to his client, but the prosecution did. It is obvious that the People are still attempting to hide Brady material from petitioner
his trial attorney were prohibited from reviewing and/or possessing what was or has known to the District Attorney’s Officer, to be inter alia” police report 176 & 197 until 2018, when they finally respondent to defendant January 23, 2018 motion to renew he August 23, 1991 motion to vacate the judgment of conviction, pursuant to C.P.L. §440.10.4 For the least 32 years, spanning from 1990 and 2021 the petitioner sough production of the still missing DD-5 reports 176 & 197. At the very least, seven days after the shooting, Eddie Garcia identified Manuel Rivera at a police interview by P.O. Rosario in which stated for the second time he had killed Maria Hernandez. When these two DD-5 reports numbered 160 and 202 relating to Eddie Garcia is crucial important to the defense which was made so late as to prevent the defense from using the material effectively in preparing or presenting its case. This may explain the serious improprieties in the People which have obviously conceded that the trial prosecutor violated its disclosure obligation by delaying unit the eve of trial the disclosure of DD-5 reports numbered 160 and 202, which relate to the admission of Eddie Garcia. ° Wherefore, this Honorable Court is respectfully urged to order the Assistant Attorney General to produce the requested examination the still missing DD-5 reports 176 & 197, in all respect.’ Th subniuted,
William Frgudroa
CC: Mr. Mathew Keller Assistant Attorney General 28 Liberty Street New York, New York 10005 (212) 416-6072
4 The prosecution has failed to disclose missing DD-5 reports 176 & 197. This is an unfortunate example of former District Attorney Charles Hynes policy and practice of encouraging prosecutors to hold back exculpatory or impeaching evidence from petitioner in order to an advantage in a criminal prosecution. This is particularly true in light of the paucity of new discovered evidence or prosecutorial misconduct, can come in light. 55 See Scrimo v. Lee, 935 F.3d 103{2d Cir. 2019) (holding that the state trial’s exclusion of witness testimony as extrinsic evince on collateral matter, a discretionary rule, was an unreasonable application of Crane v. Kentucky, 106 §.Ct, 2142 and Chambers v. Mississippi, 93 S. Ct. 1038). See Exhibit A. 7 Based on Garcia v. Herbert, 2018 WL6272778, at *2 (E.D.N.Y. 2018} decision Judge Weinstein, Senior United States District Judge noted that: “fiJt fis] the duty of every judge and every court to examine its own decisions, and the decision of other courts without fear and to revise them without reluctance.” Baker v. Lorillard, 4 NY 257, 261 (1850).
EXHIBIT A
Om ieapn Weonl [Ere Cal] Har Cas [Ro Larceny ia HYSD he me itn, . . 0, Ele ' . ei; : je YF FINGEAPRINT OFFICER ONLY: THIS DOX WILE OF UTHLIZE0 BY INVESTIGATOR WHENEVER On . WHEN USING THIS FORM 7G CLOSE A CASE “NO RESULTS,” . tate Tre Fears Sony 1 Cary flopat = Biller! (epan nm Goel) aK . ? Ore Tre NePae Bor 31 tp Repon - Ootined □□□ n Deon, ‘ . 5 . fre, Doe, Orne Saure Varad Vote Enpy nm Denia Ae Tine, One, 19 u DO ves O ty Erounce Cotainga ODS OE : 1 rr te -_——____ ? : Cen Stone Photos Dy [Ere Aran nh Gaus; Fen? Ove up 8 fd Stale Aestihcaton Detail ; PERP deourale Facts C3 No Evigensev 19 CD) ct Unsooporative Cenpunsat . . 71, w-OF ‘Hddie Garedao ConA a RUN ‘ roe est *. . ; ‘ bene . PO Rovardo,B3Per Coom Relacioos,cranslzted. for Eddie Garcia . who called the B3BQD, and stated the foliovlng. ~~ ba called telephone # 821+B828! Looking t¢ peak co hig frie , ‘ peaking to Rivera Rivers etated chat he vag ccgrad and van oO Rfeo because he killed Haria Hernandez, Rivera etated to [Pane @ $1,000 hy Julio Enrique Martiner end that be used « .38 mao} tiner to a drog deoler and hie brand name ig STARR and char |PoAP? . ez etsy in Bushwick Park,” . serto Rican 28yre 5'? 1601be Aka INDIO JH/8 Puerto Rican, 32yre $'9 mad build dirty blond hair,full |. a PERP 1 J on $3,400 bail for drug aale, :
1 ad . nmny . □ PERF I jown ag Alex Garcia, Jute Garcia Jose Garcia, Jose Soidana,
haute Prnited Thi Asgsoy Ha Suporetey Sinai De O'Keeffe A Cy th An : . , Peep] Rar
Ea, . silt’): Foose, ready Cay, SEA, 26 =e CORE; a ion, . > Ee . ia 1its* fr ‘ ia tut . T. FINGERPRINT OFFICER ONLY. THIS DOX WILL DE UTILIZED BY INVESTIGATON WILENEVER HACE) | . 4HEN USING THIS FORM 10 GLOSE A CASE "NO RESULTS,” Sate Tine Roane Save #1 Gora Raper Dlleront explan n Denil CHRE| eee ls ie re TeSAr Sane as Cemp. Repent - Olteront (espn Denia] 4H . Go CG a] Fine, Day Gi! Soe Veheo Yes - Mave Envy fi Oekil Peme, Dale, ta . OQ ves 53 Ho Evderce Obtabod . SHS) ‘f : : LE a ae id if Cre Seore Protas By (Enter Resues i Betaits] : penp ali: Gh vor Otto jf, . and Stale NeHeoalion i Ootails: _ Teenpey □□ hecawale Facis □ 6-3 Ho Eviden.t/Qun'l 0 OF Uncooperalive Comptynan , " ‘ . . : a: Leide 7 Pen? it ' aterview O£ Eddie Garcia | : . IPGHP 7p * . OGhre the reported accompanied by Det Martinex,83 « ad person at Bronx House Of Detention. & had been interviewed by phone on 8/14/89 by ‘ . e DD 5 $160. no he had a second phone’ conversation with a male ’Hisplfaer va on 8/16/89 in which Rivera stated for the second . : d Maria Hernandez. Garcia stated he was ‘told by . a was paid’$1,000 by Julio Enrique Martines to ahook |, endez or her husband Carlos, Rivera once again . en a .38 gun by Martinez ‘to do the shooting. ‘ a was told. by Rivera that Rivera walked onto the bloat . mask and saw that lights were on in the Hernandez homed: . Some one was walking around inside, firing five shotim he is going te call Manuel Rivera on. 8/18/89 and wiht -nez on that date with more information. . : wn photos by the reporter and Xdentified photos ) and DOEL SANTIAGO. He stated he ‘has known then for], vay come from his home town in Salinas Puerto Rico. 4 ily to Jive at Urbanization Brisa del Mar(Winds of firm at. the Santiago brothers know Julio Enrique and that yo they had an arguement ovar drug spots. Garcia alsb joes not think the SANTIAGO brothera know Manuel ‘ . at Martinez put out contract on the Hernandez;s hed the dealers off the block. Garcia also stated ves in area of 83Pct,can show the house,and that g with ‘him. He also states there is nimerous guns : use. . Pare Fined Tar Tega Te Sa Egan to