Thorsen v. Annucci

TIMOTHY THORSEN, Petitioner, v. ANTHONY J. ANNUCCI, Acting Commissioner,New York Department of Corrections and Community Supervision,¹ Respondent.

No. 9:19-cv-00946-JKS

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

May 27, 2021

MEMORANDUM DECISION

Timothy Thorsen, a former New York state prisoner proceeding pro se, filed in the Second Circuit Court of Appeals a Motion for an Order Authorizing the District Court to Consider a Successive or Second Habeas Corpus Application Pursuant to 28 U.S.C. §§ 2244(b), 2254. At the time he filed that request, Thorsen was in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS") and incarcerated at Orleans Correctional Facility. The DOCCS's inmate locator website (http://nysdoccslookup.doccs.ny.gov/, Department ID Number 96-A-6811), indicates that Thorsen was conditionally released to parole supervision on June 24, 2020, and shortly thereafter he submitted a change of address showing a private address, Docket No. 17. The Second Circuit granted Thorsen leave to file the instant habeas petition, Docket No. 1 ("Petition"), noting that Thorsen had made a prima facie showing that the requirements of § 2244(b)(2) were satisfied, Docket No. 2. The Court ofAppeal directed this Court to address, "as a preliminary inquiry under § 2244(b)(4), whether [Thorsen] is entitled to relief" and, "[t]o the extent [Thorsen] raises an actual innocence claim, . . . whether that claim must satisfy the § 2244(b)(2) standards." Id. Respondent has answered the Petition, and Thorsen has replied.

I. BACKGROUND/PRIOR PROCEEDINGS

On March 28, 1995, Thorsen was charged, along with co-defendant Jacques Rivette, with two counts of second-degree murder and one count of first-degree robbery in connection with the 1987 robbery and shooting of Michael Atkinson, a store manager. According to the prosecution, Thorsen served as the getaway driver and remained in the car while Rivette robbed the store and shot Atkinson in the back of his head. Following a trial, the jury convicted Thorsen as charged, on the basis of felony murder, and he was sentenced to an aggregate term of 25 years to life imprisonment.

Through counsel, Thorsen appealed his conviction, arguing that, as relevant here, his confession was inadmissible and that he was entitled to a hearing on his allegation of newly-discovered evidence. Thorsen also filed a pro se supplemental brief in which he claimed: 1) the prosecutor committed misconduct before the grand jury; 2) his confession was obtained through police misconduct and was the result of an illegal arrest; and 3) appellate counsel had the appearance of a conflict of interest.

While his direct appeal was pending, Thorsen also moved pro se to vacate the judgment pursuant to New York Criminal Procedure Law ("CPL") § 440.10 on the grounds that: 1) his statements to law enforcement should have been suppressed due to coercive interrogation and the violation of his right to the presence of counsel; 2) evidence of a gun should have beensuppressed because it was not made available to the defense for inspection; and 3) trial counsel rendered ineffective assistance. Thorsen also claimed that he had newly-discovered evidence of his innocence—a bulletin from the morning of the murder that contradicted the People's assertion at trial that cigarettes had been stolen from the store. The trial court denied the motion in a reasoned, unpublished opinion issued on December 3, 2001.

The Appellate Division of the New York Supreme Court granted Thornsen's application to appeal the denial of his § 440.10 motion and consolidated it with his direct appeal. The Appellate Division unanimously affirmed the judgment of conviction and denial of post-conviction relief in a reasoned opinion issued on July 7, 2005. People v. Thorsen, 798 N.Y.S.2d 532, 535 (N.Y. App. Div. 2005). The Court of Appeals summarily denied leave to appeal on August 24, 2005. People v. Thorsen, 836 N.E.2d 1162, 1162 (N.Y. 2005).

Thorsen then filed a second pro se motion to vacate the judgment under CPL § 440.10. In that motion, Thorsen alleged that counsel was ineffective for failing to move: 1) to suppress his confession, and 2) to dismiss the charges on the ground that the handgun had been destroyed. He further contended that relief was warranted on the ground that the police illegally withheld the handgun from the defense. The county court denied the motion in a reasoned, unpublished opinion on October 19, 2006. The Appellate Division denied leave to appeal on January 31, 2007. The Court of Appeals dismissed Thorsen's application for leave to appeal without comment on May 7, 2007.

On October 20, 2007, Thorsen filed a petition for writ of habeas corpus in this Court. Thorsen v. Conway, 9:07-cv-1213-NAM-DEP, Docket No. 1 (the "first federal habeas petition"). As amended, the first federal habeas petition alleged that: 1) his statements to police should havebeen suppressed because the interview violated his rights to remain silent and have counsel present; 2) his arrest was illegal; 3) the prosecutor committed misconduct by knowingly presenting perjured testimony; 4) appellate counsel had an appearance of a conflict of interest; and 5) he had newly-discovered evidence of his innocence in the form of: a) the police bulletin that allegedly suggested that no cigarettes had been stolen in the robbery, and b) a forensic ballistics report comparing the revolver recovered from Day's motel room to a spent shell casing recovered from the scene of the crime. On March 13, 2008, this Court, through a previously-assigned judge, dismissed the petition with prejudice as untimely after finding that Thorsen failed to allege an exception to the time bar. Id., Docket No. 6. Years later, Thorsen moved to vacate the dismissal order. Id., Docket No. 8. On November 22, 2011, the Court construed the motion as a motion for reconsideration under Federal Rule of Civil Procedure 60(b), and denied the motion. Id.; Docket No. 9. Thorsen then moved in the Second Circuit for certificates of appealability as to both the March 2008 dismissal order as well as the November 2011 denial of reconsideration. Thorsen v. Conway, 2d Cir. No. 11-5177. The Second Circuit denied the motions and dismissed the appeal. Id., Docket No. 26.

Again proceeding pro se, Thorsen filed another motion to vacate the judgment pursuant to CPL §§ 440.10 and 440.30, arguing, among other things, that he had newly-discovered evidence of actual innocence—1) a forensic ballistics report showing that the recovered revolver could not have fired a spent shell casing found at the scene; and 2) a statement from Jeff Zeto to the effect that Thorsen was not present in Bonnie Russell's trailer after the murder. The trial court denied the motion on March 23, 2018, concluding that the proffered evidence failed to prove his actual innocence by clear and convincing evidence. The Appellate Division deniedleave to appeal without comment on June 8, 2018, and the Court of Appeals dismissed Thorsen's applications for leave to appeal on September 20, 2018.

Thorsen then moved in the Second Circuit for leave to file a second or successive habeas petition pursuant to 28 U.S.C. § 2244. Thorsen v. Crowly, 2d Cir. 16-2883. Thorsen again raised his claim of actual innocence in the form of: 1) the forensics ballistics report showing that the recovered revolver could not have fired a spent shell casing found at the scene; 2) a police memorandum that allegedly shows that a person identified as Jeff Zeto knew that Thorsen was not at Russell's trailer after the murder; 3) a pre-trial statement from another trial witness that Thorsen visited Russell's trailer after the murder but did not step inside; and 4) knowledge that police had found latent fingerprints on a doorknob at the crime scene that were not his or Rivette's. According to Thorsen, various other people, including Zeto, could have committed the crime. On November 29, 2016, the Second Circuit denied leave, holding that Thorsen failed to show that the newly-discovered facts would establish by clear and convincing evidence that no reasonable would have found him guilty, and that his actual innocence argument was meritless. Id., Docket No. 34.

More than two years later, Thorsen again moved pro se in the Second Circuit for leave to file a second or successive habeas petition. Thorsen v. Conway, 2d Cir. 19-399. In that application, Thorsen claims to have proof of his actual innocence in the form of "laboratory ballistic results [that] proves [the revolver] is not the murder weapon" and "the suppressed signed statement of a Jeffrey Zeto . . . [which] eliminates petitioner" as a suspect in the convicted crimes. Thorsen additionally raises constitutional claims based on the alleged concealment of those items, and submits a proposed successive habeas petition, which would present thoseclaims and re-raise the claims he presented in the first habeas petition. Id., Docket Nos. 1-2, 10-15. The Second Circuit found that Thorsen made a prima facie showing that he satisfied the successive motion requirements of § 2244(b), and granted his motion to file a successive petition. The Second Circuit directed this Court to address whether Thorsen had actually satisfied those statutory requirements before proceeding to address whether Thorsen is entitled to relief on his claims. The Second Circuit further mandated that, to the extent Thorsen seeks relief on the basis of actual innocence, this Court should "decide in the first instance whether that claim must satisfy the [statutory successive-petition] standards."

II. STANDARD OF REVIEW

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," §...