Opinion
97-CV-0331E(Sc)
February 13, 2003.
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Rashid Jabbar petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2554 April 29, 1997. The undersigned referred the matter to Magistrate Judge Hugh B. Scott pursuant to 28 U.S.C. § 636(b)(1)(B) for consideration of the merits and legal issues raised by Jabbar in his application for post-conviction relief. Judge Scott filed his Report and Recommendation (the "RR") on September 30, 2002, recommending that Jabbar's petition be denied and that the case be dismissed. Jabbar filed his Objections to the RR on October 7, 2002. For the reasons set forth below, this Court overrules such objections and adopts the RR. Accordingly, Jabbar's request for habeas corpus relief will be denied and his petition will be dismissed.
The relevant facts are as follows. On July 30, 1988 Jabbar, armed with a hand gun, forced his way into an apartment in the City of Buffalo. The apartment was home to Evelyn Gray and her teen-age daughter. Jabbar demanded money and drugs from Gray, who began to scream. Upon hearing the commotion, Gray's nephew, Michael King, entered the kitchen area. Following a brief verbal confrontation, Jabbar shot and killed King. After King had fallen, Jabbar took King's wallet. Jabbar then raped Gray, threatening to kill her if she did not comply.
Gray's daughter fled the apartment after King had been shot. Once outside, she flagged down a police cruiser and informed the officers of Jabbar's activities. Officers Paul Skinner and Robert Hill proceeded to Gray's apartment. Skinner observed signs of a break-in near the kitchen area. Turning his attention to a hallway, Skinner saw an unclothed woman running in his direction. Skinner later identified this woman as Gray. Gray alerted Skinner that Jabbar was armed and inside the apartment. Skinner looked toward the living room, where he observed Jabbar holding a revolver. Jabbar's shirt was pulled over the top of his head and his pants were unbuckled and un-zippered, exposing his abdomen. When Skinner ordered Jabbar to freeze, Jabbar ducked out of sight. Skinner followed Jabbar, who was attempting to conceal himself under a pile of clothing in a closet. Jabbar was ordered out of the closet and handcuffed. At this time,
Jabbar told Skinner he lived in the apartment and that the incident was a domestic dispute. Jabbar denied having a firearm and explained to Skinner that, "all [he had] wanted was some pussy." Skinner took Jabbar outside and placed him into the rear of the police vehicle. Returning to the apartment, Skinner observed King face down on the floor. Initially, Skinner thought that King was sleeping. Skinner felt for a pulse and determined that King was dead.
While Skinner searched the apartment, Hill remained in the police car with Jabbar, who volunteered that he and his girlfriend had been involved in a domestic dispute over drugs. Hill received a radio call from Skinner requesting that Hill not release Jabbar because there was a body in the apartment. In response to the radio call, Hill advised Jabbar of his Miranda rights. Jabbar indicated that he understood his rights and made no further statements. Upon his return to the patrol car, Skinner asked Jabbar if he had any identification on him. Jabbar leaned to his left, exposing a wallet. Skinner retrieved the wallet from Jabbar's pants pocket and observed a military identification card with the name Michael King on it. Shortly thereafter, Jabbar was transported to police headquarters.
Jabbar was indicted on charges of murder in the second degree (intentional), murder in the second degree (felony), two counts of burglary in the first degree, two counts of attempted robbery in the first degree, two counts of sodomy in the first degree, rape in the first degree, assault in the second degree, two counts of criminal possession of a weapon in the second degree and criminal use of a firearm in the first degree. Following a jury trial, Jabbar was convicted as charged on all counts, with the exception of the intentional murder charge, on which he was convicted on the lesser included offense of manslaughter in the second degree.
On June 12, 1989 Jabbar was sentenced to indeterminate terms of twenty years to life on the murder conviction, five to fifteen years on the manslaughter and attempted robbery convictions and eight and one-third to twenty-five years on the burglary convictions, all to run concurrently with each other. Jabbar was also sentenced to indeterminate terms of eight and one-third to twenty-five years on the rape and sodomy convictions, two and one-third to seven years on the assault convictions, five to fifteen years on each of the criminal possession of a weapon convictions and eight and one-third to twenty-five years on the criminal use of a firearm conviction, to run concurrently with each other and consecutively to the sentence on the murder conviction.
Jabbar appealed to the Appellate Division. See People v. Jabbar, 560 N.Y.S.2d 565, 566 (4th Dep't. 1990). The Appellate Division held that alleged improprieties on the part of the prosecutor had not been objected to during the trial and were therefore not preserved for appeal. Id. Furthermore, any prosecutorial impropriety that had taken place was not so egregious as to deprive Jabbar of a fair trial. Id. The proof of Jabbar's guilt was so overwhelming that any error was harmless. Id. The Appellate Division also held that evidence that Jabbar possessed King's wallet at the time of his arrest was properly admitted, as it implied that Jabbar was using the wallet to disguise his own identity. Id. Furthermore, the court held that there was no merit to Jabbar's claim that the admission of the wallet was evidence of an uncharged crime and that Jabbar's statements to the police were spontaneous and not the product of interrogation or conduct by the police. Id.
Nonetheless, the Appellate Division held that the Supreme Court erred in ordering that Jabbar's sentence for criminal possession of a weapon in the second degree should run consecutive to the conviction for felony murder, as the two crimes arose out of the same criminal act. Id. at 566. The court therefore modified the judgment so that the two sentences were to run concurrently. Id. Otherwise, the judgment against Jabbar was upheld. Jabbar's request for leave to appeal to the New York State Court of Appeals was denied. People v. Jabbar, 78 N.Y.2d 955 (1991).
On April 29, 1997 Jabbar filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Jabbar seeks relief on the following grounds: insufficient evidence, involuntary confession, prosecutorial misconduct in summation, ineffective assistance of trial counsel and ineffective assistance of appellate counsel. Jabbar now objects to the adverse findings by the magistrate judge on the issues of the insufficient evidence ground, the involuntary confession ground and the prosecutorial misconduct in summation ground.
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)(C); see also Thomas v. Arn, 474 U.S. 140, 149-150 (1985) (holding that failure to timely object to a magistrate's recommended decision waives any right to further judicial review because section 636(b)(1)(C) does not require any review at all by the district court of an issue that is not objected to); U.S. v. Male Juvenile, 121 F.3d 34, 38-39 (2d Cir. 1997) (indicating that a party's failure to timely object to a magistrate's report and recommendation may waive that party's right to further judicial review of the magistrate's decision). It is entirely within the province of this Court to adopt the portions of the RR to which no specific objection has been raised. See Black v. Walker, 2000 WL 461106, at *1 (W.D.N.Y. 2000). Jabbar has not objected to Judge Scott's determination as to the ineffective assistance of counsel allegations. Accordingly, this Court adopts the RR's determination with respect to such.
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)(C); United States v. Raddatz, 447 U.S. 667, 675-676 (1980); Sieteski v. Kuhlmann, 2000 U.S. Dist. LEXIS 7910, at *2 (W.D.N.Y. 2000). With respect to Jabbar's objection regarding the insufficient evidence portion of the RR, Jabbar does not explain how Judge Scott's specific findings were erroneous or how Judge Scott purportedly misapplied the law to the facts of the case. See Objections at 1-3. Furthermore, Jabbar has not presented any relevant case law that was ignored by Judge Scott. Rather, Jabbar is attempting to retry the facts of this case by pointing out minor inconsistencies in the testimony of some of the prosecution's witnesses. Jabbar's only true "objection" is Judge Scott's determination that there was sufficient evidence to convict him of rape and sodomy.
This Court is not the forum for review of any factual determination except under narrow circumstances inapplicable here. The standard of review set forth in the Antiterrorism and Effective Death Penalty Act ("AEDPA") is:
"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 the State court proceedings unless the adjudication of that 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).
The AEDPA standard is satisfied here because there is substantial evidence of Jabbar's guilt and the record reveals no evidence of an unreasonable determination of the facts by the New York State trial or appellate courts.
The burden placed upon a defendant challenging the sufficiency of the evidence underlying his or her conviction is "very heavy." See Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995). To succeed, a defendant must be able to demonstrate that "in viewing the evidence in the light most favorable to the government, *** no rational trier of fact could have found the essential elements of the crime charged beyond a reasonable doubt." Ibid. (internal citations omitted); see also Jackson v. Virginia, 443 U.S. 307, 319 (1979) (stating that, "[o]nce a defendant has been found guilty of the crime charged, the factfinder's role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution"). As noted by Judge Scott, however, there was more than ample evidence for the jury to convict Jabbar where such evidence included, inter alia, defendants' statements and the testimony of two victims and the arresting officers. Accordingly, Jabbar's claim that there was insufficient evidence to convict him of rape and sodomy is without merit and will be overruled.
With respect to Jabbar's objections regarding the voluntariness of his confession, Jabbar contends that Judge Scott "failed to engage in an independent review of Petitioner's involuntary confession claim." Objections, at 5. This Court disagrees. The RR stated that Judge Scott "examined the transcript of the Huntley hearing and [found] that the material facts were well developed and that the court's factual determinations were fairly supported by the record." RR, at 18. The RR further stated that Judge Scott "has also examined Jabbar's arguments on this point and finds them unpersuasive." Id. (emphasis added). Accordingly, Judge Scott did not apply the wrong standard of review as contended by Jabbar.
Moreover, the undersigned has undertaken a de novo review and concludes that Judge Scott's determination is correct. Indeed, as Judge Scott noted, the transcripts of Jabbar's Huntley hearing before the trial judge demonstrate that the material facts were well developed and fairly supported by the record. Accordingly, under 28 U.S.C. § 2254(e)(1) the factual determinations made by the trial court are presumed correct and Jabbar has failed to rebut this presumption by clear and convincing evidence. See Morris. v. Reynolds, 264 F.3d 38, 47 (2d Cir. 2001).
Furthermore, this Court finds that Jabbar's statements to the arresting officers were voluntary as a matter of law because he was not being interrogated — or subject to the functional equivalent thereof — when he spontaneously made the statements in question. Statements made during a custodial interrogation are generally inadmissible unless a suspect has been advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 444 (1966). Although it is assumed arguendo that Jabbar was in custody when he made the statements at issue, he was never interrogated. Miranda is thus inapplicable and Jabbar's statements were admissible because they were voluntary. See Miranda, at 478 ("Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today."); U.S. v. Muniz, 1 F.3d 1018, 1022 (10th Cir. 1993) ("[i]f a person voluntarily speaks without interrogation by an officer, the Fifth Amendment's protection is not at issue, and the statements are admissible."); cf. U.S. v. Pena, 51 F. Supp.2d 367, 373 (W.D.N.Y. 1999) (finding statement made in police car after arrest was voluntary because such was made spontaneously and absent interrogation); U.S. v. Cota, 953 F.2d 753, 759 (2d Cir. 1992) (holding that statements a defendant made in police car were voluntary because she was not being interrogated and she initiated the discussion). Accordingly, Jabbar's objection on this ground is without merit and will be overruled.
Miranda, at 444 (defining "custodial interrogation" as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way."); Rhode Island v. Innis, 446 U.S. 291, 300-301 (1980) (defining "interrogation" as "express questioning or its functional equivalent" and holding that interrogation "must reflect a measure of compulsion above and beyond that inherent in custody itself").
With respect to Jabbar's objections regarding the prosecutorial misconduct in summation, the undersigned has undertaken a de novo review and concludes that Judge Scott's determination is correct for the reasons stated in the RR. Accordingly, Jabbar's objection on this ground is without merit and will be overruled.
Accordingly, it is hereby ORDERED that Jabbar's objections are overruled, that Judge Scott's Report and Recommendation filed September 30, 2002 is adopted in its entirety, that Jabbar's petition for a writ of habeas corpus is dismissed in its entirety and that this case shall be closed. There having been no substantial showing by Jabbar of the denial of a constitutional right, the Court declines to issue a certificate of appealability and certifies that any appeal would not be taken in good faith pursuant to 28 U.S.C. § 1915.