Opinion
97-CV-0717E(Sr).
June 23, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Petitioner Coble, currently incarcerated in a New York State prison and serving an indeterminate term of imprisonment of twenty and one-half to forty-one years following his conviction in New York State Supreme Court, Erie County, filed a September 15, 1997 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action was referred to Magistrate Judge H. Kenneth Schroeder, Jr., pursuant to 28 U.S.C. § 636(b)(1)(B), for an evaluation of the merits and a recommended disposition. Respondent subsequently filed a February 16, 2001 Answer in which he argued that six of petitioner's claims — viz., claims "4 though 10" of the Petition — should be dismissed because they were unexhausted. Petitioner then filed a March 15, 2001 request for an order to hold his petition in abeyance so that he could return to state court by way of a writ of error coram nobis to pursue such claims. Judge Schroeder filed an October 28, 2003 Report and Recommendation ("RR") in which he recommended that the petitioner's request to hold the Petition in abeyance be denied and that the Petition be dismissed in its entirety. By Order, dated November 7, 2003, petitioner was given until December 7, 2003 to reply to the RR. Petitioner subsequently filed his Objections to the RR on December 10, 2003. Respondent filed an Opposing Affidavit on January 15, 2004.
Petitioner was convicted on January 27, 1987 of three counts of Robbery in the First Degree and one count of Criminal Possession of a Weapon in the Second Degree. A fourth charge of robbery had been severed before trial from the counts above. Subsequently, the petitioner pled guilty to one count of Attempted Robbery in the First Degree on June 12, 1987, for which he was sentenced as a second felony offender to a concurrent indeterminate term of imprisonment of five to ten years.
This Court subsequently issued a November 18, 1997 Memorandum and Order dismissing the petition on the ground that it was time barred pursuant to the applicable provisions of the Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2244. On April 17, 2000, the United States Court of Appeals for the Second Circuit reversed and remanded on the ground that the petition had been timely filed within one year after the final denial of petitioner's request for state court relief. Coble v. Stinson, 2000 WL 419946, at *1 (2d Cir. 2000).
In his Opposing Affidavit, respondent argues that petitioner's Objections were untimely inasmuch as it was filed on December 10. However, "[u]nder the `mailbox rule,' a pro se prisoner litigant's papers are deemed to have been filed when the papers are placed in the hands of prison officials for mailing." Davidson v. Kyle, 2004 WL 941458, at *1 n. 3 (W.D.N.Y. 2004) (citing Houston v. Lack, 487 U.S. 266, 271 (1998)). According to petitioner's Affidavit of Service, his Objections were placed in the mail at the Wende Correctional Facility on December 4, 2003. Therefore, petitioner's Objections will be deemed timely filed inasmuch as he mailed such prior to the December 7 deadline.
While familiarity with the facts of this case is presumed, relevant facts will be discussed as needed. In support of his Petition, petitioner first claims that he had been denied a fair trial due to the trial court's erroneous admission of certain testimony from one Clarence Jones concerning the petitioner's possession of a handgun in late 1985. Petitioner's second claim is that he had been denied a fair trial due to prosecutorial misconduct. Petitioner's third claim is that the line-up procedures were unduly suggestive inasmuch as the prosecutor advised the witnesses as they assembled for the viewing that the petitioner would be in the line-up and that they were there to view the individual they had previously picked out in the photo arrays. In claims 4 through 10, petitioner contended that the trial court's jury instruction on reasonable doubt was erroneous, that the photo array was unduly suggestive and tainted subsequent line-up identifications, that the trial court's jury instructions with respect to the elements of Robbery in the First Degree were erroneous, that the indictment was jurisdictionally defective because it failed to charge every element of Robbery in the First Degree, that his Batson rights were violated during voir dire and that he received ineffective assistance of counsel when counsel failed to object to the jury instruction in claim 4.
A more detailed recitation of the facts and procedural history in this case is set out in Judge Schroeder's RR.
Jones testified to seeing the petitioner in possession of a handgun one to two months before the robberies. However, the description of the gun did not match the eyewitness description of the weapon used in the January 1986 robberies for which the petitioner was convicted. On appeal, the Appellate Division, Fourth Department, held that it was error to permit the introduction of this evidence, but that the error was harmless due to the "overwhelming evidence of guilt, including the unequivocal identification testimony of nine witnesses." People v. Coble, 564 N.Y.S.2d 927, 928 (4th Dep't 1990) (citations omitted).
Specifically, the petitioner contends that (1) the prosecutor advised various witnesses prior to the lineup that they were there to identify the individual they had previously chosen from photo arrays, (2) the prosecutor advised some witnesses before trial that the petitioner would be in the courtroom and (3) the prosecutor commented numerous times during summation that the witnesses who identified the petitioner at trial were truthful and had not lied under oath. Pet. ¶ 12B.
Batson v. Kentucky, 476 U.S. 79 (1986).
After an extensive examination of the state court record, Judge Schroeder concluded that (1) claims 4 through 10 of the Petition should be dismissed because each is procedurally barred under the independent and adequate state ground doctrine and (2) the Petition should not be held in abeyance because petitioner had not shown cause for the default or prejudice from such. See RR, at 14-28. With regard to petitioner's first three claims, Judge Schroeder concluded that (1) the petitioner's due process rights had not been violated by the admission of Jones's testimony regarding the handgun because, in light of the entire record, such testimony was a minor piece of evidence in the face of strong and unequivocal eyewitness identification, and there was more than sufficient other evidence to convict the petitioner, (2) there was no evidence in the record to support either of petitioner's claims that the prosecutor's comments to the prospective witnesses at the line-up and trial compromised the identifications or witness testimony in any way, or that the prosecutor's comments at summation were so prejudicial as to undermine the integrity of the trial and result and (3) petitioner's third claim failed because the state court's decisions that the lineup was not suggestive, nor tainted by the prosecutor's remarks preceding it, were in accordance with clearly established federal law and based on a reasonable determination of the facts. See RR, at 28-45.
The independent and adequate state ground doctrine bars a federal court from habeas review of claims on which the petitioner has defaulted in state court pursuant to state procedural rules, unless the petitioner can show cause for the default and prejudice as a result, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 749-750 (1991).
See RR, at 40-42 (holding that petitioner was not prejudiced by the prosecutor's comments due to the trial judge's instructions to the jury and the overwhelming evidence of guilt).
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate" and may adopt those parts of the RR to which no specific objection is raised, so long as such are not clearly erroneous. 28 U.S.C. § 636(b)(1). It is entirely within the province of this Court to adopt the portions of the RR to which no specific objection is raised. Black v. Walker, 2000 WL 461106, at *1 (W.D.N.Y. 2000). However, the undersigned must make a de novo determination with respect to those portions of the RR to which specific objections have been made. 28 U.S.C. § 636(b)(1). See also United States v. Raddatz, 447 U.S. 667, 673-676 (1980).
The Court now turns to petitioner's specific objections. Petitioner objects to Judge Schroeder's rulings with regard to his first three claims. With respect to his first claim regarding the alleged erroneous admission of the handgun testimony, petitioner contends that Judge Schroeder failed to inquire whether the error "was harmless beyond a reasonable doubt" as required by Chapman v. California, 386 U.S. 18, 24 (1967). In addition, petitioner contends that the eyewitness identifications of the petitioner were not "overwhelming" and objects to Judge Schroeder's conclusion that his conviction was based on "overwhelming evidence of guilt." Pet'r's Objs., at 5. Petitioner's first objection will be overruled because a de novo review of the record shows that the alleged erroneous admission of Jones's testimony regarding the handgun was harmless even under the Chapman standard in light of the other evidence against him.
In 1993 the United States Supreme Court ruled that for federal court habeas review of a petitioner's alleged constitutional error at trial, the test should be whether the error "had substantial and injurious effect" on the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-638 (1993). After the passage of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in 1996, it has been an open question within the Second Circuit whether the applicable test for habeas review is "the one set forth in Brecht, or instead should be a determination `whether the state court's decision was contrary to, or involved an unreasonable application of Chapman.'" Brown v. Keane, 355 F.3d 82, 91 (2d Cir. 2004) (quoting Noble v. Kelly, 246 F.3d 93, 101-102 n. 5 (2d Cir. 2001)). However, the court need not reach such issue in this case because the alleged error is harmless under either standard.
The applicable portion of the AEDPA states:
"An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
"(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
"(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d) (2004 Supp.).
In making a harmless error determination, this court must determine "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been crucial, critical, [and] highly significant." Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quotations and citations omitted). The record must be viewed "as a whole, considering the overall strength of the prosecution's case, the importance of the improperly admitted evidence, and whether the evidence was emphasized at trial." Brown, at 92. As Judge Schroeder noted, the handgun testimony was a minor part of Jones's overall testimony. It came after the testimony of nine witnesses who unequivocally identified the petitioner, the testimony of the petitioner's mother who testified that she collected a reward after surrendering the petitioner to police and Jones's earlier testimony that he rented a car for the petitioner that matched the description of the getaway vehicle. The prosecutor alluded to Jones's testimony regarding the handgun only once in his summation. This Court finds that the gun testimony was not crucial, critical or highly significant, did not have a substantial and injurious effect on the jury and that there was more than sufficient other evidence to convict the petitioner. Therefore, the Court adopts Judge Schroeder's conclusion that the Fourth Department's decision was not an unreasonable application of clearly established federal law.
Trial Tr. at 49, 115, 165, 217, 277, 383, 399, 425-426, 452 and 491.
Trial Tr., at 524-525.
Trial Tr., at 538-540.
Trial Tr., at 461.
RR at 35; Trial Tr. at 626.
Brecht, at 637-638.
With regard to the petitioner's second and third claims, the petitioner fails to specifically identify the portions of the proposed findings and recommendations to which he objects and his objections are mere recitations of the arguments made in his habeas corpus petition. Compare Pet. ¶¶ 12B-12C with Pet'r's Objs. §§ III-IV. Consequently, the Court will review the RR for clear error. See Rule 72.3(a)(2) of the Local Rules of Civil Procedures ("LRCvP") ("The specific matters to which the party objects and the manner in which it is claimed that the order is clearly erroneous or contrary to law shall be clearly set out."); see also Rawls v. Barnhart, 2003 WL 23350120, at *1-2 (W.D.N.Y. 2003) (discussing LRCvP 72.3 and reviewing RR for clear error because plaintiff's objections to such were merely reiterations of his arguments that he had made to the Magistrate Judge).
See also Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 381-382 (W.D.N.Y. 1992). ("It is clear from the plain meaning of the rule that objections to a Report and Recommendation are to be specific and are to address only those portions of the proposed findings to which the party objects. It is improper for an objecting party to attempt to relitigate the entire content of the hearing before the Magistrate Judge by submitting papers to a district court which are nothing more than a rehashing of the same arguments and positions taken in the original papers submitted to the Magistrate Judge. Clearly, parties are not to be afforded a second bite at the apple when they file objections to a Report and Recommendation, as the goal of the federal statute providing for the assignment of cases to magistrates is to increas[e] the overall efficiency of the federal judiciary.") (quotations and citations omitted).
With respect to the second claim, this Court finds no clear error in Judge Schroeder's finding that the comments made by the prosecutor to the prospective witnesses at the line-up and to the witnesses at, and during, the trial did not amount to a denial of petitioner's due process rights. See RR at 39-42. With respect to petitioner's third claim that the state courts erred in admitting the line-up evidence because it was unduly suggestive, this Court finds no error with Judge Schroeder's conclusion that the petitioner failed to demonstrate that the state courts' findings were contrary to clearly established federal law or based on an unreasonable determination of the facts. See RR at 44-45.
Petitioner does not object to Judge Schroeder's findings on claims four through ten. Upon review of the RR, this Court finds no clear error in Judge Schroeder's determination that those claims are procedurally barred.
Accordingly, it is hereby ORDERED that petitioner's Objections are overruled, that Judge Schroeder's RR is adopted in its entirety, that petitioner's petition for a writ of habeas corpus is dismissed and that the Clerk of this Court shall close this case.