Andrews v. Leclaire

• Decision Date: 04 May 2010
• Docket Number: No. 07 CV 3393(KMK).,07 CV 3393(KMK).
• Citation: 709 F.Supp.2d 269
• Parties: Brian ANDREWS, Petitioner,v.Lucien J. LeCLAIRE, Jr., Defendants.
• Court: U.S. District Court — Southern District of New York

709 F.Supp.2d 269

Brian ANDREWS, Petitioner,v.Lucien J. LeCLAIRE, Jr., Defendants.

No. 07 CV 3393(KMK).

United States District Court S.D. New York.

May 4, 2010.

COPYRIGHT MATERIAL OMITTED

Brian Andrews, Plymouth, NY, pro se.

Joseph M. Latino, Office of the District Attorney, John James Sergi, White Plains, NY, for Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION

KENNETH M. KARAS, United States District Judge.

On February 8, 2010, Magistrate Judge Smith entered a Report & Recommendation (“R & R”) recommending that this Court dismiss this action. (R & R (Dkt. No. 10) 19.) In the R & R, Magistrate Judge Smith provides notice that objections to her conclusions were due within seventeen working days, and that failure to object would constitute a waiver of Petitioner's right to appeal. ( Id. at 282.) No objections have been filed.

When no objections are filed, the Court reviews an R & R on a dispositive motion for clear error. See Eisenberg v. New England Motor Freight, Inc., 564 F.Supp.2d 224, 226 (S.D.N.Y.2008); Donahue v. Global Home Loans & Fin., Inc, No. 05-CV-8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007). The Court has reviewed the R & R and finds no error, clear or otherwise. The Court therefore adopts the R & R in its entirety.

Petitioner argued that the jury charge given during jury selection was unbalanced due to a failure to include the law on identification or credibility. (Petition ¶ A) To the extent that Petitioner argues that there was a risk of tainted deliberation before the jury was given the case, the R & R addresses that point. (R & R 275-76.) To the extent that Petitioner argues that the jury's actual deliberations were tainted, the Court notes that any error was cured when the trial judge gave the relevant instructions before the jury deliberated. (Trial Tr. Vol. II, at 795-806 People v. Andrews, Ind. No. 387/03 (N.Y.Super.Ct. Aug. 27, 2003).)

Therefore, it is ORDERED that the Petition is DISMISSED. The Clerk of the Court is respectfully requested to terminate this case.

REPORT AND RECOMMENDATION

LISA MARGARET SMITH, United States Magistrate Judge.

Pro se petitioner, Brian Andrews (“Petitioner”), files this petition for a Writ of Habeas Corpus (the “Petition”) pursuant to 28 U.S.C. § 2254, challenging his conviction pursuant to Westchester County Indictment Number 03-00387 for two counts of Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.39) and two counts of Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.16). Pet. at 1. On October 23, 2003, Petitioner was sentenced in the County Court of Westchester as a second felony offender to a term of five to ten years imprisonment for each count, to run concurrently. Aff. in Opp. to Pet. at 8. Petitioner was incarcerated for these offenses at the Queensboro Correctional Facility but was released on parole on March 28, 2007. However, Petitioner is currently incarcerated at the Westchester County Jail on pending charges of one count of Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.39) and one count of Criminal Possession of a Controlled Substance in the Seventh Degree (N.Y, Penal Law § 220.03), both of which are also a violation of his parole conditions.¹

Petitioner seeks habeas relief on six grounds: (1) that the trial court's pre-voir dire discussion of the elements of the crimes charged violated his right to a jury trial and due process; (2) that the trial court's refusal to allow defense counsel to inquire as to whether prospective jurors could follow certain instructions was a violation of his right to an impartial jury; (3) that the trial court's ruling pursuant to a Sandoval hearing violated his Fifth Amendment rights; (4) that the denial of a Wade hearing violated his due process rights; (5) that the trial court's Allen charge was coercive and violated his right to a jury trial; and (6) that the bolstering of eyewitness testimony by the People at trial violated his right to a fair trial. Pet. at 5. Respondent argues that the instant Petition should be denied in its entirety because Petitioner's claims are either procedurally barred or are without merit. See generally Resp't Mem. of Law. For the reasons set forth below, I conclude, and I respectfully recommend that Your Honor should conclude, that this Petition for a Writ of Habeas Corpus should be denied.

I BACKGROUNDA. The Crimes

On January 22, 2003, Petitioner approached undercover police officer Anthony Maggiore of the Yonkers Police Department in the area of 56 Locust Hill Avenue and told him that he could get him some “Scooby Doo,” a street name for heroin. Aff. in Opp. to Pet. at 3. Officer Maggiore told Petitioner that he would get back to him. Id. After conferring with his superiors, Officer Maggiore returned to the area where Petitioner had approached him earlier in order to make a drug buy. Id. Officer Maggiore stood in front of the door of 56 Locust Hill Avenue and was approached by an unknown individual who asked him what he wanted. Aff. in Opp. to Pet. at 4. Officer Maggiore stated that he wanted “Scooby Doo,” whereupon the individual retreated into the lobby of the building. Id. Seconds later, Petitioner came to the doorway and told Officer Maggiore that he could get him one bag of “Scooby Doo” for ten dollars. Id. Officer Maggiore agreed, handed Petitioner ten dollars, and Petitioner handed Officer Maggiore a glassine envelope containing heroin. Id.

The next day, January 23, 2003, Officer Maggiore returned to the area of 56 Locust Hill Avenue and saw Petitioner standing in the lobby with three or four other individuals. Aff. in Opp. to Pet. at 5. When Officer Maggiore approached, Petitioner asked, “How many?” and Officer Maggiore responded, “Just one bag.” Aff. in Opp. to Pet. at 6. Petitioner stepped back into the building and returned with a glassine envelope that contained heroin and handed it to Officer Maggiore for a payment of ten dollars. Id. Officer Maggiore continued to purchase heroin at the Locust Hill location over the next two weeks, although from individuals other than Petitioner. Id. On February 12, 2003, Petitioner was arrested at the Gospel Mission on North Broadway in Yonkers where he was living. Aff. in Opp. to Pet. at 7. Although purportedly homeless, Petitioner was in possession of one hundred forty-nine dollars when arrested. Id.

B. Procedural History

On March 28, 2003, Petitioner was indicted in Westchester County, indictment number 03-00387, for two counts of Criminal Sale of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.39), two counts of Criminal Possession of a Controlled Substance in the Third Degree (N.Y. Penal Law § 220.16), and two counts of Criminal Possession of a Controlled Substance in the Seventh Degree (N.Y. Penal Law § 220.03). Aff. in Opp. to Pet. at 8. On August 29, 2003, after a jury trial, Petitioner was found guilty of two counts of Criminal Sale of a Controlled Substance in the Third Degree and two counts of Criminal Possession of a Controlled Substance in the Third Degree. Id. Petitioner was sentenced to five to ten years for each count, to run concurrently. Id.

Petitioner appealed to the Supreme Court, Appellate Division, Second Department making the same six arguments contained in the instant habeas corpus petition. See generally Resp't Ex. 2, Resp't Ex. 5. The Appellate Division affirmed Petitioner's conviction on June 6, 2006. People v. Andrews, 30 A.D.3d 434, 818 N.Y.S.2d 110 (2006). The New York State Court of Appeals denied Petitioner leave to appeal on November 20, 2006, 7 N.Y.3d 900, 826 N.Y.S.2d 609, 860 N.E.2d 71 (2006). Resp't Ex. 8. Petitioner did not file any other post-judgment motions other than the instant habeas petition which was timely filed on March 6, 2007.

II. DISCUSSIONA. Standard of Review

“Habeas review is an extraordinary remedy.” Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (citing Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994)). To be granted a writ of habeas corpus from a federal district court, a petitioner must fully and carefully comply with the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. Under the AEDPA, all state remedies must be exhausted before a federal court may consider a state prisoner's petition for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1)(A); see also Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). In the interests of comity and expeditious federal review, “[s]tates should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights.” See Coleman v. Thompson, 501 U.S. 722, 731, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); see also Daye v. Attorney General of the State of New York, 696 F.2d 186, 190-91 (2d Cir.1982). The exhaustion requirement of the federal habeas corpus statute is set forth in 28 U.S.C. § 2254(b), (c):

(b) An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective process or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner.

(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.

28 U.S.C. § 2254(b), (c).

The Second Circuit has adopted a two-stage inquiry to determine whether the exhaustion doctrine has been satisfied. See Klein v. Harris, 667 F.2d 274, 282 (1981). First, the petitioner must have “fairly presented” his or her federal constitutional...