Cosey v. Lilley

Background

Archie Cosey filed a second petition under 28 U.S.C. § 2254, seeking to overturn his New York convictions, entered after his guilty plea, for first-degree conspiracy and second-degree murder. He was sentenced to concurrent terms of 25 years to life. His petition asserted claims based on alleged suppression of evidence under Brady v. Maryland, due process, ineffective assistance of counsel, and actual innocence.

The petition centered partly on Edward Walker, a grand-jury witness who had placed Cosey at the murder scene. The prosecutor later learned that Walker had been incarcerated on the date of the murder and therefore could not have witnessed it. The prosecutor disclosed Walker’s perjury to the state trial judge in an ex parte letter but did not disclose it to Cosey before his guilty plea. In later state post-conviction proceedings, the state court vacated the murder convictions of Cosey’s codefendants based on Brady violations and ineffective assistance of counsel, but denied Cosey’s motion to vacate his convictions.

The state post-conviction proceedings included testimony from witnesses who supported Cosey’s innocence, forensic evidence about the path of the bullet, and evidence concerning Walker’s perjury and an alleged recantation by another witness. The state court found several witnesses—including Janet Hutchens, Yolanda Summers, David Bobbitt, and Cosey—not credible. It also found that the forensic evidence was inconclusive and that Walker’s perjury did not establish Cosey’s innocence. Cosey’s first federal habeas petition, filed in 2002, had challenged the denial of his motion to withdraw his guilty plea.

Threshold requirements for a second petition

The Court of Appeals for the Second Circuit authorized Cosey to file a second petition but directed this Court to determine whether the petition satisfied the requirements of 28 U.S.C. § 2244. Under that statute, a second or successive petition based on newly discovered evidence must rely on facts that could not previously have been discovered through due diligence. The new facts must also establish by clear and convincing evidence that, without a constitutional violation, no reasonable factfinder would have found the petitioner guilty.

Judge Koeltl held that Cosey’s Brady and due-process claims failed these requirements. Walker’s absence from the murder scene showed that Walker could not provide eyewitness evidence, but it neither proved Cosey’s innocence nor disproved the other evidence against him. The court also considered Cosey’s sworn statements during his guilty-plea hearing, including his admissions that he was present, prevented Williams from leaving the hallway, and knew Williams was about to be killed. The court concluded that Cosey had not shown by the required standard that no reasonable factfinder would have found him guilty.

The court held that Cosey’s ineffective-assistance claims also failed the due-diligence requirement. The information supporting his claims about the lack of expert evidence, Bobbitt’s unavailability, and counsel’s handling of the motion to withdraw the plea was available, or known to Cosey, when he filed his first federal petition. His earlier pro se status did not excuse compliance with the statutory requirements.

The court also ruled that Cosey’s freestanding actual-innocence claim—one not tied to another constitutional violation—could not independently support review of a second or successive petition under § 2244(b)(2). The court noted that federal law had not recognized a freestanding actual-innocence claim in a noncapital case and that the statute required a constitutional error in addition to evidence of innocence.

Timeliness

The court separately held that the petition was untimely. Because Cosey relied on evidence that allegedly could not have been discovered until his state post-conviction hearing, the court used the one-year period tied to the date when the factual basis of a claim could have been discovered with due diligence. That period was tolled while his state post-conviction motion was pending, but tolling ended when the Appellate Division denied leave to appeal on September 19, 2017. Cosey filed the federal petition on December 3, 2018, more than one year later.

The court rejected Cosey’s argument that the limitations period continued until December 4, 2017, when the New York Court of Appeals dismissed his attempted application for leave to appeal. Under New York law, no further state review was available after the Appellate Division denied leave. The court also denied equitable tolling because an incorrect legal interpretation by counsel and Cosey’s pro se status did not constitute the extraordinary circumstances required for tolling.

The court recognized that a credible and compelling actual-innocence showing can sometimes serve as a gateway around a time bar, including for a successive petition. But it held that Cosey did not meet that standard. The court found that the recantations and testimony were not sufficiently reliable or compelling, that Walker’s perjury did not exonerate Cosey, and that the forensic evidence did not overcome Cosey’s sworn guilty-plea admissions.

Alternative merits analysis

For completeness, the court also examined the claims under the deferential standard governing federal review of state-court decisions. It held that the state court reasonably concluded that Walker’s perjury was impeachment evidence and that the Constitution did not require its disclosure before Cosey pleaded guilty. The court also found no established Supreme Court rule showing that the ex parte letter violated due process, and it found no unreasonable factual determination concerning the letter or possible prejudice.

The court rejected all three ineffective-assistance theories. Counsel was not constitutionally deficient for failing to develop forensic expert evidence before the guilty plea because the alleged weakness in the prosecution’s theory became apparent only after later trial testimony. There was also no evidence that the prosecutor or trial court pressured Bobbitt not to testify, so counsel was not ineffective for failing to raise that argument. Finally, the court held that counsel had adequately presented Cosey’s request to withdraw his guilty plea.

The court also rejected the freestanding actual-innocence claim on the alternative merits analysis. It held that the state court’s decision was not contrary to clearly established federal law and that the state court reasonably relied on the evidence, including Cosey’s plea admissions and its credibility findings.

Disposition

The Court dismissed the petition for failure to satisfy the requirements for a second or successive petition and the one-year limitations period. It also stated that the petition would fail on the merits if it were eligible for review. The Clerk was directed to enter judgment dismissing the petition and close the case. The court issued a certificate of appealability concerning whether Cosey satisfied § 2244(b)(2)(B) and whether he made a sufficient showing to overcome the time bar under § 2244(d)(1).