United States District Court, D. New Jersey
KEVIN McNULTY, District Judge.
The petitioner, Yusef Allen, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Mr. Allen filed a motion for a stay and abeyance of this habeas case so that he could exhaust certain additional claims in the state courts. On January 20, 2015, I denied that request in part. However, I reserved judgment on whether a stay should issue so that Mr. Allen could exhaust his claim that the prosecution withheld exculpatory material in violation of Brady v. Maryland, 373 U.S. 83 (1963) and Giglio v. United States, 405 U.S. 150 (1972) claim. On that issue, Respondent was ordered to supplement his response to the motion for stay and abeyance, which he has done. For the following reasons, Mr. Allen's request for a stay so that he can exhaust his Brady/Giglio claim will be denied and the respondent will be ordered to file a response to the habeas petition. The discussion herein assumes familiarity with my earlier opinion. (Dkt. No. 22)
The factual background regarding Mr. Allen's state conviction was laid out in the January 20, 2015 Opinion in this case. See Allen v. Warren, No. 13-4304, Dkt. No. 22, 2015 WL 268829 (D.N.J. Jan. 20, 2015). Mr. Allen was convicted after a jury trial of murder and weapons charges. The Appellate Division affirmed the judgment of conviction but remanded the matter for imposition of a corrected sentence of life imprisonment with thirty years of parole ineligibility. Mr. Allen's application for post-conviction relief was denied.
In July, 2013, this Court received Mr. Allen's federal habeas petition, which asserted some nineteen grounds for relief. Subsequently, Mr. Allen requested a stay so that he could return to state court and exhaust his remedies as to certain of the claims. More specifically, Mr. Allen described his unexhausted claims as follows:
1. Prosecutor committed misconduct by withholding clearly exculpatory evidence from the grand jury and aiding the state's chief witness in giving false testimony to the grand jury, thereby violating petitioner's right to a fair trial as guaranteed [by] the Sixth and Fourteenth Amendment of the United States Constitution and Article I Paragraph 10 of the New Jersey Constitution.
2. The petitioner was denied his right to effective assistance of counsel by: (1) counsel's failure to investigate his alibi defense; (2) erroneously advising petitioner not to testify at trial; and (3) cumulative error.
3. Brady claim for failing to disclose witness Waller's plea bargain agreement arising from her testimony in the trial of Riccardo Bradley on April 19, 1991 [the "Brady/Giglio" claim].
On January 20, 2015, I denied Mr. Allen's request for a stay on the first two issues, but reserved judgment on the Brady/Giglio issue. I noted that Mr. Allen was claiming that the prosecution failed disclose a prior conviction and plea bargain of a key prosecution witness, Ruby Wailer. That April 1991 conviction of Waller, Allen claims, could have been used to impeach her credibility at trial. In reserving judgment on this claim, I explained as follows:
I do not have a sufficient evidentiary context to determine materiality. To begin with, the nature of the prior conviction itself is unclear. I have no more than a general statement of the scope of other impeachment evidence used against Waller at trial. The respondent did not attach a copy of the transcript of Waller's cross-examination. The respondent did not identify, with specific references to the trial transcript, each piece of impeachment evidence used against Waller by the defense. Without such an evidentiary context, I cannot make a reasoned assessment of respondent's argument that evidence of an additional Waller conviction was not "material." Accordingly, the respondent shall be ordered to file a supplemental response on this point.
Allen, 2015 WL 268829, at *8.
On February 24, 2015, Respondent filed a supplemental response directed solely to the Brady/Giglio claim. That response includes evidence that Waller's April 1991 conviction was presented to the jury at trial, and that defense counsel was aware of it before to trial. Attached, as requested, is a copy of the transcript of Waller's ...