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, 

, 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, 

, 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, 

, 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

. Taylor, 

, 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