Opinion
00 CV 2662 (SJ)
May 24, 2003
LEROY HOOVER, Clinton Correctional Facility, Dannemora, New York for Petitioner, Pro Se
CHARLES J. HYNES, Jane S. Meyers, Brooklyn, New York, for Respondent
MEMORANDUM AND ORDER
Petitioner Leroy Hoover ("Petitioner"), appearing pro se, brings this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. This Court referred the petition to Magistrate Judge Roanne L. Mann for a Report and Recommendation ("Report"). On March 23, 2003, Magistrate Mann issued her Report, recommending that Petitioner's application be denied. Petitioner filed his timely objection to the Report on December 15, 2002. Petitioner objects to Magistrate Judge Mann's findings. However, he has not offered any challenges to the Report which would persuade this Court to reject Magistrate Judge Mann's recommendations. Accordingly, the Report is hereby adopted in its entirety.
I. Standard of Review for Report and Recommendation
A district court judge may designate a magistrate judge to hear and determine any pre-trail matter pending before the district court. See 28 U.S.C § 636(b)(1). A district judge may also designate that magistrate to conduct hearings and submit to the district court proposed findings of fact and recommendations as to the disposition of the motion. Within ten days of service of the recommendation, any party may file written objections to the magistrate's report. Upon de novo review of those portions of the record to which objections were made, the district court judge may affirm or reject the recommendations. See Id. The district court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 150(1985).
II. Petitioner's Objections to Magistrate's Findings
A. Factual Findings
Petitioner challenges Magistrate Judge Mann's factual finding that the victim fell after she tried to prevent Petitioner from driving off in her car. Petitioner asserts that this allegation was not included in the testimony of either the victim nor the arresting officer. (Objections at 16.) Having reviewed the transcripts, this Court notes that the victim testified that she held on to the Petitioner's arm as he attempted to drive away in her car, and that she twisted her ankle and injured her shoulder when the car hit the curb. (Trial Transcript at 25-26, 37.) The officer testified that he saw the victim being dragged by the car as Petitioner attempted to drive away. (Hearing Transcript at 7, 9.) Although neither witness specifically testified that the victim actually fell, this was a reasonable conclusion to draw from that testimony. At any rate, this factual finding is not relevant to the Magistrate's other findings or to the merits of the Petition.
B. Fourth Amendment Claims
Magistrate Judge Mann recommended that Petitioner's Fourth Amendment claims be dismissed, because they are barred from habeas review by Stone v. Powell 428 U.S. 465 (1976). Petitioner argues that his case should be excepted from Stone's preclusion of this issue. He claims that the state court has provided no corrective procedures, or that there was a breakdown in those procedures. (Objections at 18.) However, he provides no evidence of such a failure nor any support for his claim that Stone should not apply in his case. In fact, as Magistrate Judge Mann found, the record reflects that Petitioner did raise these concerns at a pretrial evidentiary hearing and in his post-conviction appeal to the Appellate Division. Accordingly, the Court adopts Magistrate Judge Mann's recommendation that Petitioner's Fourth Amendment claims be dismissed.
C. The Best Evidence Rule
Petitioner also objects to Magistrate Judge Mann's finding that his constitutional rights were not affected by any potential violation of the Best Evidence Rule. However, he does not challenge the accuracy of the photocopy of his written confession, nor present any other evidence that the introduction of the copy in any way violated his right to a fair trial. He merely suggests that he was harmed by the prosecution's use of the written statement to argue that he intentionally used force to commit the robbery. (Objections at 21.) However, the Court does not see, and Petitioner does not offer, any theory for how this constituted unfair prejudice or in any way violated his constitutional rights.
D. Ineffective Assistance of Trial Counsel
Magistrate Judge Mann also considered Petitioner's allegations regarding his Sixth Amendment right to the effective assistance of counsel at trial and sentencing, even though Petitioner did not raise this claim in his initial Petition to this Court. Petitioner raised the Sixth Amendment claim for the first time in his September 25, 2000 Memorandum of Law filed in response to Respondent's Opposition to the Petition. Liberally construing this filing as a motion to amend his Petition, Magistrate Judge Mann recommended that such motion be denied as futile. As the Magistrate explained, Strickland v. Washington, 466 U.S. 668 (1984), sets a very high standard for constitutional challenges to the effectiveness of counsel None of the claims advanced by Petitioner in his September 25, 2000 memorandum, nor in his Objections to Magistrate Judge Mann's Report, overcome the "strong presumption that counsel's conduct falls within the ride range of reasonable professional assistance." Strickland. 466 U.S. at 689. Indeed, the Magistrate found that trial counsel was a zealous and effective advocate and that his efforts resulted in the jury acquitting Petitioner of the most serious charges. This Court adopts Magistrate Judge Mann's findings.
Petitioner now argues, for the first time in his objections, that his counsel erred at his sentencing hearing, by failing to object to the constitutionality of his designation as a prior felony offender. (Objections at 25.) It appears that Petitioner is arguing that his Counsel should have challenged his designation on the basis of Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (holding that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,"). The Second Circuit has recently held that Apprendi does not apply retroactively on collateral review. Coleman v. United States, — F.3d —, 2003 WL 21019559, at *4 (2d Cir. May 7, 2003) ("To date, at least seven United States Courts of Appeals have held that Apprendi announced a new rule, but that Apprendi's new rule does not apply retroactively to initial section 2255 motions for habeas relief We now join this chorus and hold that Apprendi is a new rule that does not apply retroactively to initial section 2255 motions for habeas relief." (citations omitted)). At any rate, the Supreme Court's holding in Apprendi specifically excepted sentence enhancements on the basis of prior felony convictions. 530 U.S. at 490 (citing Almendarez-Torres v. United States, 523 U.S. 224, 230 (1998)). Accordingly, Petitioner's trial counsel did not err in failing to raise at sentencing what would have been a meritless constitutional claim. See United States v. Cruz. 785 F.2d 399, 404-06 (2d. Cir 1986) (holding that defense counsel was not ineffective when he failed to move to suppress a search warrant where there was little likelihood that the motion would have succeeded).
Although Apprendi had not been decided at the time Petitioner was sentenced, Petitioner seems to be arguing that his counsel should have had the foresight to raise an Apprendi — like claim that his prior criminal convictions should have been presented to a jury and found beyond a reasonable doubt, and that the failure to do so violates the Constitution. As noted herein, this claim has been rejected by the Supreme Court, and thus counsel's failure to raise a claim that was unlikely to succeed does not fall below an objective standard of reasonable professional conduct.
For all of these reasons, Petitioner's motion to amend his Petition in order to advance a claim of ineffective assistance of counsel is hereby denied as futile.
III. Ineffective Assistance of Appellate Counsel
For the first time in his objections to the Report, Petitioner now appears to argue that his failure on direct appeal to make out a claim of ineffective assistance of trial counsel should be excused on the ground that his ineffective assistance of appellate counsel was the "cause" of this failure. See Wainwright v. Sykes, 433 U.S. 72, 87 (1977) (reiterating the rule that federal courts may address the merits of a claim that was procedurally defaulted in state court only upon a showing of cause for the default and prejudice to the petitioner). This assertion is irrelevant. Although the ineffective assistance of trial counsel claim appears not to have been exhausted, neither Respondent nor the Magistrate asserted that this claim was procedurally barred. Magistrate Judge Mann considered the merits of Petitioner's ineffective assistance of trial counsel claim and found it to be without merit, as noted above. (See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); Report at 18.) Accordingly, to the extent Petitioner seeks to amend his Petition to include the claim of ineffective assistance of appellate counsel, the proposed amendment would be futile and must be denied.
CONCLUSION
Magistrate Judge Mann thoroughly reviewed and addressed each of Petitioner's claims and found each of them to be without merit. The Court has reviewed her recommendations, Petitioner's objections, and the relevant portions of the record. The Court hereby adopts Magistrate Judge Mann's Report and Recommendation in its entirety. The Petition for a writ of habeas corpus is denied. To the extent that Petitioner seeks to amend his petition, that motion is denied. The Clerk of the Court is directed to close this case. Because Petitioner has not made a substantial showing of the denial of any constitutional right, a certificate of appealability will not be issued. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith.
SO ORDERED.
A Memorandum and Order of Honorable Sterling Johnson Jr., United States District Judge, having been filed on May 27, 2003, adopting the Report and Recommendation of Magistrate Judge Roanne L. Mann, issued on March 23, 2003, denying the petition for a writ of habeas corpus; denying petitioner's motion to amend his petition; declining the issuance of a Certificate of Appealability; and certifying that pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from the Court's Memorandum and Order would not be taken in good faith; it is
ORDERED and ADJUDGED that petitioner take nothing of the respondent; that the Report and Recommendation of Magistrate Judge Roanne L. Mann is adopted; that the petition for a writ of habeas corpus is denied; that petitioner's motion to amend his petition is denied; that a Certificate of Appealability shall not issue; and that pursuant to 28 U.S.C. § 1915 (a)(3) that any appeal from the Court's Memorandum and Order would not be taken in good faith.