Opinion
98 Civ 6561 (GBD).
March 7, 2003
MEMORANDUM OPINION ORDER
This habeas corpus petition was referred to Magistrate Judge Kevin Nathaniel Fox for resolution. Magistrate Judge Fox issued a Report and Recommendation wherein he recommended that the petition be denied. The Report duly takes into consideration plaintiff's status as a pro se litigant. In his Report, Magistrate Judge Fox advised the parties that failure to file timely objections to the Report will constitute a waiver of those objections. Both petitioner and respondent filed timely objections to the Report.
When timely objection has been made to a magistrate judge's report, the district judge is required to "make a de novo determination . . . of any portion of the magistrate's disposition to which specific written objection has been made. . . ." FED. R. Civ. P. 72(b); see also 28 U.S.C. § 636(b)(1)(C). The district judge is not required to conduct a de novo hearing on the matter. See United States v. Raddatz, 447 U.S. 667, 676 (1980). "It is sufficient that the district court `arrive at its own, independent conclusion about those portions of the magistrate's report to which objection is made. . . .'" Nelson v. Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985) (quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983)). Thus, the district court is obligated to "exercise . . . sound judicial discretion with respect to whether reliance should be placed on [the magistrate judge's] findings."American Express Int'l Banking Corp. v. Sabet, 512 F. Supp. 472, 473 (S.D.N.Y. 1981), aff'd, 697 F.2d 287 (2d Cir. 1982). The district judge may then accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate judge, receive further evidence, or recommit the matter to the magistrate judge with additional instructions. See FED. R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1)(C). The district judge may accept the portions of the magistrate judge's Report to which no specific written objections are made provided there is no clear error on the face of the record. See Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); see also Heisler v. Kralik, 981 F. Supp. 830, 835 (S.D.N.Y. 1997), aff'd 164 F.3d 618 (2d Cir. 1998).
With respect to those portions of the Report to which defendants did not specifically object, the Court finds that the record is not facially erroneous. Accordingly, the Court adopts those portions of the Report. Petitioner objects to Magistrate Judge Fox's finding that petitioner did not exhaust his state remedies with respect to his claim of ineffective assistance of trial counsel. Petitioner argues that the only basis for his motion for a writ of error coram nobis was the ineffective assistance of his appellate counsel and that his allegations regarding the ineffectiveness of his trial counsel were only used to demonstrate the manner in which his appellate counsel was ineffective. After reviewing the motion, the Court finds that the issues regarding petitioner's trial and appellate counsel were inextricably intertwined. Accordingly, for the reasons stated therein, the Court adopts the portion of the Report finding that petitioner did not exhaust his state remedies with respect to his claim for ineffective assistance of trial counsel.
Nonetheless, this Court may still consider the merits of petitioners claims notwithstanding his failure to exhaust state remedies. See 28 U.S.C. § 2254(b)(2). Petitioner and respondent object to the portion of the Report regarding petitioner's claim that he was denied his Sixth Amendment right to counsel when his attorney was excluded from the lineup viewing room where pretrial identifications of petitioner were made. Petitioner objects to Magistrate Judge Fox's determination that, though the exclusion of counsel from the viewing room violated petitioner's Sixth Amendment rights, the witnesses' courtroom identification of petitioner derived from a source independent of the tainted lineup. Based on New York state case law, petitioner argues that the witnesses' testimony was unreliable and that the trial court should have held an independent source hearing pursuant to United States v. Wade, 388 U.S. 218 (1967). Respondent objects to Magistrate Judge Fox's reliance on United States v. Tolliver, 569 F.2d 724 (2d Cir. 1978) in his determination that petitioner's Sixth Amendment right to counsel was violated. Respondent argues that the proper authority is Doyle v. Coombe, 549 F. Supp. 354 (S.D.N.Y. 1982) and that, under that authority, petitioner's rights were not violated.
Both petitioner's and respondent's arguments are inapposite. Under 28 U.S.C. § 2254(d), a federal habeas corpus claim may not be granted unless the state court's adjudication:
(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 evidence presented in the State court proceeding.
The state court's adjudication of petitioner's claim satisfies the requirements of § 2254(d). In Wade, the Supreme Court held that the Sixth Amendment requires that counsel be present at a post-indictment lineup. 388 U.S. at 227. Wade does not delineate what counsel's presence entails, rather it requires courts to examine pretrial confrontations of the defendant in order to "determine whether the presence of counsel is necessary to preserve the defendant's basic right to a fair trial as affected by his right meaningfully to cross-examine the witnesses against him and to have effective assistance of counsel at the trial itself."Id. Wade further requires a court to "analyze whether potential substantial prejudice to defendant's rights inheres in the particular confrontation and the ability of counsel to help avoid that prejudice."Id.
The state appellate court held that petitioner was not denied his right to the assistance of counsel because his attorney approved the order and placement of the participants in the lineup, the witnesses were told, in his attorney's presence, not to speak until they were in his attorney's presence outside of the viewing room, and his attorney stood directly outside of the viewing room with a partially open door where he could hear if anything was said. See People v. Williams, 641 N.Y.S.2d 306 (1996). The state court holding is not an unreasonable application of the relevant Supreme Court case law or an unreasonable determination of the evidence before the state court. Petitioner's attorney was substantially involved in the lineup so that his ability to avoid prejudice to petitioner and to meaningfully cross-examine the witnesses at trial was not abridged. Therefore, the Court rejects the portion of the Report which concludes that petitioner's Sixth Amendment right to counsel was violated by the exclusion of his attorney from the viewing room.
Petitioner and respondent also object to Magistrate Judge Fox's determination that, though the trial court erred in declining to decide petitioner's right to counsel claim during the Wade hearing because petitioner's allegations were not specifically raised in his pre-trial motion, the error was harmless. Petitioner objects on the ground that the allegations in his pre-trial motion were sufficient to alert the trial court of his right to counsel claim. Respondent objects on the ground that federal law applies and Magistrate Judge Fox improperly applied New York state law in his analysis of petitioner's claim. The Court agrees with respondent. In reviewing habeas corpus petitions, federal courts are limited to violations of the "Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). There is no constitutional requirement to hold a suppression hearing in every case where an issue regarding the admissibility of identification evidence arises. See Watkins v. Sowders, 449 U.S. 341 (1981) (holding that state court's failure to conduct a pretrial suppression hearing on the admissibility of the identification evidence was not unconstitutional). Accordingly, this Court rejects the portion of the Report that determined that the trial court's failure to hold a suppression hearing with respect to petitioner's right to counsel claim was error. There was no constitutional error in the trial court's failure to conduct a suppression hearing on that claim.
Finally, petitioner objects to Magistrate Judge Fox's rejection of petitioner's ineffective assistance of appellate counsel claim. Petitioner argues that his appellate counsel's performance was outside the scope of reasonable competence and that counsel failed to raise significant claims regarding the felony murder jury instruction. After reviewing the Report, plaintiff's objections, and the record, this Court finds that petitioner's objections are without merit and adopts the portion of the Report rejecting petitioner's ineffective assistance of appellate counsel claim.
For the foregoing reasons, petitioner's habeas corpus petition is denied.
SO ORDERED.