W.D.N.Y. Mentions Split Re Point at which Government Agents Become Agents Acting on Behalf of the Prosecution

Per Afrika v. Herbert, Slip Copy, 2007 WL 2323500 (W.D.N.Y . Aug 10, 2007) (NO. 02-CV-458):

Here, the Court need not attempt to settle that question. The state court in Afrika's case rejected the theory that the prosecutor had constructive knowledge of the two narcotics convictions at issue because they were not prosecuted by the district attorney's office handling Afrika's case. Furthermore, the state court found that the prosecutor did not have constructive possession of the complete NYSIIS because that document was not generated by the district attorney's office but rather originated from the DCJS, which was not an agency acting on the prosecutor's behalf. The Supreme Court has not clearly established the precise point at which government agents become agents acting on behalf of the prosecution. See United States v. Zagari, 111 F.3d 307, 320 n. 13 (2d Cir.1997) ("The extent to which knowledge may be imputed from one federal investigative agency to another for Brady purposes is as yet unclear."); accord Daniels v. Hollins (citing Smith v. Secretary of New Mexico Dept. of Corrections, 50 F.3d 801, 825 n. 36 (10th Cir.1995) ("In the absence of actual knowledge ... the circuits are somewhat split as to the precise contours of when knowledge by an arm of the State will be imputed to the prosecution."). The Supreme Court has directed that, in the wake of AEDPA, the Court's review is limited to whether the state court's decision was contrary to or an unreasonable application of clearly established federal law. See Williams v. Taylor, 529 U.S. at 405-07. Guided by this deferential standard, the Court cannot find, on the facts of this case, that the state court's holding regarding the element of "suppression" was contrary to, or an unreasonable application of Brady and its progeny.