Baker v. Bennett

• Citation: 235 F.Supp.2d 298
• Decision Date: 06 December 2002
• Docket Number: No. 01 Civ. 1368(RMB)(DF).,01 Civ. 1368(RMB)(DF).
• Parties: Calvin BAKER, Petitioner, v. Floyd BENNETT, Superintendent, Respondent.
• Court: U.S. District Court — Southern District of New York

235 F.Supp.2d 298

Calvin BAKER, Petitioner, v. Floyd BENNETT, Superintendent, Respondent.

No. 01 Civ. 1368(RMB)(DF).

United States District Court, S.D. New York.

December 6, 2002.

Calvin Baker, Elmira, NY, pro se.

John E. Knudsen, Assist. Atty. Gen., New York City, for U.S.

ORDER

BERMAN, District Judge.

I. Introduction

On or about February 23, 2001, Calvin Baker ("Baker" or "Petitioner") filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition"), challenging his December 13, 1996 conviction in Supreme Court, New York County, for robbery, burglary, and sodomy in the first degree. N.Y. Penal Law §§ 160.15[3], 140.3[3], 130.50[1]. Baker's conviction was affirmed on September 30, 1999 by the Appellate Division, First Judicial Department, People v. Baker, 264 A.D.2d 692, 696 N.Y.S.2d 125 (App. Div. 1st Dep't 1999). Leave to appeal was denied by the New York Court of Appeals on February 2, 2000. People v. Baker, 94 N.Y.2d 901, 707 N.Y.S.2d 385, 728 N.E.2d 984 (2000).

In his Petition, Baker alleges, among other things, that: (1) the trial court violated his Fourth Amendment rights by failing to suppress unlawfully obtained evidence; and (2) the trial court improperly excluded two (potential) jurors over Petitioner's Batson objection. Respondent opposed the Petition on July 26, 2001; and Petitioner filed a reply dated August 14, 2001.

On January 18, 2002, Magistrate Judge Debra Freeman, to whom this matter had been referred, issued a detailed, thorough Report and Recommendation ("Report"), recommending that the Petition be dismissed, Report at 2, and that the Court should decline to issue a certificate of appealability "because Petitioner has not `made a substantial showing of the denial of a constitutional right.'" Id. at 21 (quoting 28 U.S.C. § 2253(c)(2)).

The Report advised the parties that "[p]ursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections." Id. Petitioner filed objections to the Report on February 2, 2002 ("Petitioner's Objections"). For the reasons stated below, the Report is adopted in all respects and the Petition is dismissed.

II. Standard of Review

This Court may adopt those portions of a report to which no objections have been made and which are not facially erroneous. See Fed.R.Civ.P. 72(b); see, e.g., Letizia v. Walker, No. 97 Civ. 0333, 1998 WL 567840, at *1 (W.D.N.Y. Aug. 27, 1998); Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y. 1991); Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.1985). The court conducts a de novo review of those portions of a Magistrate's report to which objections have been made. See, e.g., Letizia, 1998 WL 567840 at *1; Pizarro, 776 F.Supp. at 817. Once objections are received, a district judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the Magistrate. See, e.g., DeLuca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y.1994); Walker v. Hood, 679 F.Supp. 372, 374 (S.D.N.Y.1988). Where, as here, the petitioner is proceeding pro se, "leniency is generally accorded." Bey v. Human Resources Admin., No. 97 Civ. 6616, 1999 WL 31122, at *2 (E.D.N.Y. Jan.12, 1999).

III. Analysis

The Court has conducted a de novo review of the record herein, including, among other things, the Report, Petitioner's Objections, and applicable legal authorities, and concludes that Magistrate Freeman's legal and factual determinations are supported by the record and the law in all material respects. Petitioner's Objections do not provide a basis for departing from the Report's recommendations.¹

A. Fourth Amendment Claim

Magistrate Freeman correctly concluded that "Petitioner was afforded a full and fair opportunity to litigate his claim in state court." Report at 12. Where, as here, "the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); see also Torres v. Irvin, 33 F.Supp.2d 257, 264 (S.D.N.Y. 1998). Petitioner was afforded a pretrial Mapp hearing; there was a detailed ruling by the trial court; and Petitioner availed himself of the opportunity to attack the legality of the state court process by raising his Fourth Amendment claim(s) in the Appellate Division. Report at 11; see May 23, 1996 Hearing Transcript; Trial Court Decision, dated August 23, 1996; Baker, 696 N.Y.S.2d 125.

B. Batson Claim

Magistrate Freeman properly determined that under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2254(d) (2000), there is "no basis for this Court to set aside the Appellate Division's rejection of Petitioner's Batson claim ...." Report at 21.² The Magistrate found, among other things, that "the Appellate Division identified the correct legal principle governing the propriety of the trial court's conduct," and that the Appellate Division appropriately applied "the relevant legal principle in upholding the trial court's determination." Id. at 17; see 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The Magistrate also reviewed the record and properly determined that the trial court's factual findings (as to whether the prosecution's stated reasons for its peremptory challenges were pretextual) were "fairly supported and cannot be deemed inherently `unreasonable,' under AEDPA § 2254(d)(2)," and that such findings are "entitled to great deference." Report at 19; see United States v. Alvarado, 951 F.2d 22, 25 (2d Cir.1991).

IV. Conclusion

The Court adopts the Report in all respects and, for the reasons stated therein and herein, denies Baker's Petition. A certificate of appealability is also denied because Petitioner has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The Clerk is respectfully requested to close this case.

REPORT AND RECOMMENDATION

FREEMAN, United States Magistrate Judge.

INTRODUCTION

Pro se petitioner Calvin Baker ("Petitioner") seeks a writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County. Upon a jury verdict, Petitioner was found guilty of two counts each of robbery, burglary, and sodomy in the first degree, and was sentenced to an indeterminate term of twenty-two to forty-four years. (Pet. at 2.)¹ Petitioner is currently incarcerated at Elmira Correctional Facility.

Petitioner challenges his conviction, asserting that the trial court violated Petitioner's Fourth Amendment rights by failing to suppress unlawfully obtained evidence and preclude certain line-up and in-court identification testimony, and that the court improperly excluded two potential jurors over Petitioner's Batson objection. (See Pet. at 5.)²

Respondents argue that the petition should be dismissed because Petitioner had a full and fair opportunity to litigate his Fourth Amendment claim, thus precluding federal habeas review, and because the state court's rejection of Petitioner's Batson claim was not "contrary to" or an "unreasonable application" of clearly established Federal law, nor was it an "unreasonable determination of the facts in light of the evidence before the court." (See Resp. Mem. at 1-2, 19-30.)³ For the reasons set forth below, I recommend that the petition be DISMISSED.

FACTUAL BACKGROUND

According to the trial transcript, on September 16, 1995, at approximately 5:30 a.m. (Tr. at 47),⁴ Kenneth Atkinson awoke to find a man, later identified as Petitioner, in the bedroom of his apartment on East 81st Street, near Lexington Avenue. (Id. at 34, 39.) Petitioner was pressing himself to Mr. Atkinson's stomach with a knife to his throat (id. at 39-40, 103-106), warning him to keep still. (Id. at 39-40.) Mr. Atkinson and his wife, Anne Atkinson, further testified that Petitioner then directed Ms. Atkinson to bring him money and jewelry. (Id. at 40-44, 106-15.) Petitioner took money and gold chains from Ms. Atkinson, and then walked out of the bedroom holding a knife to her throat, ultimately exiting the apartment alone, through the apartment door. (Id. at 45, 115-16.)

As stated at trial, approximately three weeks later, on October 7, 1995, Petitioner entered the bedroom of Sue Evans ("Evans") and her husband, on East 91st Street, near Madison Avenue (Tr. at 174), and took money he found hidden there (id. at 185). Evans, nine months pregnant and asleep on the couch at the time of the burglary (id. at 178), testified that Petitioner proceeded to the living room and awakened her by pressing a knife to her neck, covered her mouth, and threatened to kill her if she screamed (id. at 181, 184). Petitioner eventually removed his hand from her mouth and demanded money. (Id. at 184-85.) When she realized that he had already taken money from the bedroom, Evans offered him a diamond ring that she kept in the bedroom. (Id. at 185-86.) Evans testified that Petitioner then stuffed a blanket into her mouth, pressed his knife to her stomach, and performed oral sex upon her. (Id. at 186.) Petitioner then forced Evans with him to the bedroom, where her husband still slept, to retrieve the diamond ring. (Id. at 187.) According to Evans, Petitioner then brought her back to the living room and again performed oral sex upon her, finally telling her, "I wouldn't have killed you. I would have killed your baby." (Id. at 187-90.) Evans further testified that Petitioner again threatened to kill her if she called the police, then left the apartment. (Id. at 191.)

On October 14, 1995, police officers noticed Petitioner, who matched descriptions given by Evans and the Atkinsons (Tr. at 324), on the street near the Evans'...