09-2214-pr
King v. Ercole
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 7 th day of April, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 GERARD E. LYNCH,
9 Circuit Judge,
10 JANE A. RESTANI * ,
11 Judge.
12
13 - - - - - - - - - - - - - - - - - - - -X
14 JAMES KING,
15 Petitioner-Appellant,
16
17 -v.- 09-2214-pr
18
19 ROBERT ERCOLE, Superintendent, Green
20 Haven Correctional Facility
21 Respondent-Appellee.
22 - - - - - - - - - - - - - - - - - - - -X
23
*
The Honorable Jane A. Restani, Chief Judge of the
United States Court of International Trade, sitting by
designation.
1
1 APPEARING FOR APPELLANT: MATTHEW SCOTT TROKENHEIM, Esq.
2 (Richard M. Greenberg, Esq.,
3 Joseph M. Nursey, Esq., Office
4 of the Appellate Defender, New
5 York, NY on the brief), Arent
6 Fox LLP, New York, NY.
7
8 APPEARING FOR APPELLEES: HANNAH E.C. MOORE (Joseph N.
9 Ferdenzi, Karen Swiger on the
10 brief) for Robert T. Johnson,
11 District Attorney, Bronx County.
12
13
14 Appeal from a judgment of the United States District
15 Court for the Southern District of New York (Hellerstein,
16 J.).
17 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
18 AND DECREED that the judgment of the district court be
19 AFFIRMED.
20 James King petitions for a writ of habeas corpus on the
21 ground that the prosecution withheld material impeachment
22 information related to a key prosecution witness, Mario
23 Lopez, in violation of Brady v. Maryland, 373 U.S. 83, 87
24 (1963). “[T]he government’s failure to disclose favorable
25 information will result in an order of retrial if the
26 undisclosed information is ‘material,’ within the exacting
27 standard of materiality established by the governing case
28 law.” United States v. Spinelli, 551 F.3d 159, 164 (2d Cir.
29 2008).
2
1 “[A] new trial is generally not required when the
2 testimony of the witness is corroborated by other testimony,
3 or when the suppressed impeachment evidence merely furnishes
4 an additional basis on which to impeach a witness whose
5 credibility has already been shown to be questionable.”
6 United States v. Payne, 63 F.3d 1200, 1210 (2d Cir. 1995)
7 (internal quotation marks and citations omitted). Both of
8 these conditions were met here 1 , as the Appellate Division
9 ruled. Accordingly, that ruling was neither contrary to nor
10 an unreasonable application of established federal law. See
11 Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
12 Finding no merit in King’s remaining arguments, we
13 hereby AFFIRM the judgment of the district court.
14
15
16 FOR THE COURT:
17 CATHERINE O’HAGAN WOLFE, CLERK
18
1
Lopez’s testimony was corroborated in relevant part
by another prosecution witness, Michael Cooks. As to Lopez,
the prosecution failed to disclose a (purported) state
cooperation agreement dealing with state car-theft charges.
Since Lopez admitted his involvement in a separate murder-
for-hire incident to federal prosecutors at the same time he
signed the purported state cooperation agreement, that
document gave Lopez no incremental motive to lie that the
defense was unable to adequately bring to the jury’s
attention.
3