Congelosi v. Miller

Decision Date27 April 2009
Docket NumberNo. 02-CV-6014 CJS.,02-CV-6014 CJS.
Citation611 F.Supp.2d 274
PartiesBrian CONGELOSI, Plaintiff, v. Superintendent David MILLER, Eastern Correctional Facility, Defendant.
CourtU.S. District Court — Western District of New York

Brian Congelosi, Albion, NY, pro se.

Loretta S. Courtney, Monroe County District Attorney's Office, Rochester, NY, for Defendant.


SIRAGUSA, District Judge.

This case is before the Court to consider objections raised by Petitioner to the Report and Recommendation ("R & R") filed by United States Magistrate Judge Victor E. Bianchini upon review of Petitioner's application for the issuance of a writ of habeas corpus pertaining to his state court conviction. The law provides that in reviewing the objections, this Court

shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.

28 U.S.C. § 636(b)(1) (2005). Petitioner was convicted in a New York State court on November 4, 1996, of depraved indifference murder, assault and felony driving while intoxicated. He challenged his conviction in the New York courts by way of a direct appeal, by way of New York Criminal Procedure Law Article 440 application, and a petition for a writ of error coram nobis. He then filed the instant petition seeking from this Court a writ of habeas corpus contending that the State courts had committed errors supporting eleven different grounds for overturning his conviction. The Court referred the matter to Judge Bianchini for a R & R, and based on that report, and a de novo review of the portions to which Petitioner objects, the Court adopts the recommendations of Judge Bianchini and dismisses the petition without issuing a certificate of appealability.

Failure to mention consideration of Petitioner's Supplemental Memorandum and Reply

First, Petitioner objects that Judge Bianchini did not consider his "reply to the State's opposition." In this regard, it appears Petitioner is referring to the documents he entitled "Petitioner's Supplemental Memorandum of Law to his Title 28 U.S.C.A. 2254 Habeas Corpus Petition," (Docket No. 15, filed on Aug. 12, 2002), and "Petitioner's Reply in Response to Respondent's Answer in Opposition to Petitioner's Application for Writ of Habeas Corpus," (Docket No. 28, filed on Nov. 20, 2002). Petitioner concludes that, since Judge Bianchini did not specifically mention these documents in his R & R, he did not consider them.

By way of background, a week after Petitioner filed Docket No. 15, he filed an amended petition (Docket No. 17, filed on Aug. 19, 2002), including a memorandum of law, and exhibits (Docket Nos. 18-22). On October 21, 2002, Respondent filed his answer as well as the state court records. On November 20, 2002, Petitioner replied to the answer, and then, about a year later, on February 2, 2004, moved to file a supplemental pleading. Although Respondent opposed, in a September 2, 2004, Decision and Order, United States Magistrate Marion W. Payson granted Petitioner's application, deeming it a motion to supplement his memorandum of law. Judge Payson set October 4, 2004,1 for Respondent to file a response to the supplemental memorandum and Respondent did so in Docket No. 39, filed on November 4, 2004.

In her September 2, 2004, decision and order, Judge Payson did not provide Petitioner an opportunity to reply2 to Respondent's supplemental memorandum of law; nevertheless, Petitioner did so in what he captioned, "Petitioner's Response to Respondent's Supplemental Memorandum of Law," filed as Docket No. 41, on November 19, 2004.

Even assuming, arguendo, that Judge Bianchini's failure to reference the two documents at issue (Docket Nos. 15 & 28) in his R & R means that he did not consider them, as Petitioner suggests, the objection fails. Other than his conclusory statement that Judge Bianchini would have come to a different result had he considered Docket Nos. 15 and 28, Petitioner makes no argument that by not considering those two documents, Judge Bianchini came to the wrong conclusion in the R & R. Judge Bianchini, in a 58-page R & R, thoroughly discussed the eleven grounds Petitioner raised in support of his petition.

Miranda issue

Second, Petitioner objects to the R & R with respect to the Miranda issue he raised. (Objection ¶ 2.) He maintains that the state courts erred in failing to suppress a statement he made to Officer Fenton on the basis that he was subjected to a custodial interrogation without first having been given his Miranda warnings. As to this issue, Judge Bianchini wrote, "I tend to agree with [Petitioner] that Officer Fenton should have known that his comment was at least `reasonably likely to elicit an incriminating response.'" (R & R, at 16.) Therefore, Judge Bianchini, in fact, accepted Petitioner's argument that Officer Fenton conducted a custodial interrogation. Accordingly, Petitioner's objection, relating to his custodial status, is without merit.

Additionally, Petitioner argues that Judge Bianchini's erroneously determined that any Miranda violation on Officer Fenton's part was harmless beyond a reasonable doubt. In this regard, Petitioner contends that his statement that he had consumed "a couple of beers" earlier in the day, made in response to Officer Fenton's question, was the only direct evidence of voluntary intoxication3 and, therefore, its admission was not harmless. (Objection ¶ 6.) However, Petitioner's argument ignores the other evidence of voluntary intoxication at trial, which Judge Bianchini listed in his R & R. Referring to the statement Petitioner made to Officer Fenton, Judge Bianchini wrote:

This piece of evidence was a relatively insignificant part of the prosecution's proof that [Petitioner] was intoxicated, and voluntarily so: his B.A.C. result was 0.28-0.29, almost three times the legal limit; various witnesses observed his physical condition and combative, irrational behavior following the accident; he was seen holding a glass object in his hand while driving; and a nearly empty liquor bottle was found in his truck. See, e.g., T.538, 552, 581-82. And, a nurse who treated [Petitioner] at the hospital testified that he had told her essentially the same thing he had said to Officer Fenton—that he had consumed a "couple of beers" earlier in the day. See T.538, 546-47. [Petitioner] also had told a paramedic at the accident scene that he had been coming from a party before the accident. T. 555-56. Thus, the statement which [Petitioner] sought to preclude was cumulative to other evidence regarding his voluntary intoxication so that its admission could not reasonably have had a detrimental effect on the verdict.

(R & R, at 16.) The Court concludes that even if the trial court had suppressed the statement made to Officer Fenton, probable cause existed for Petitioner's arrest and a reasonable jury could have found guilt beyond a reasonable doubt.

Autopsy photographs

Third, Petitioner objects to Judge Bianchini's recommendation with respect to the autopsy photographs. Although Judge Bianchini agreed with Petitioner that the two, small, black and white photographs should not have been admitted, he nonetheless determined that their admission did not rise to a constitutional violation. As the Second Circuit stated in Collins v. Scully, 755 F.2d 16 (2d Cir.1985):

We are not here simply being called upon to apply rules of evidence that might permit the state court in its discretion to grant a new trial but rather are dealing with a more fundamental constitutional concept of fairness. The standard in our view should therefore be whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been "crucial, critical, highly significant," Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir.1982) (internal quotation marks omitted).

Collins, 755 F.2d at 19. The record does not support a finding that the two autopsy photographs that were admitted were "crucial, critical, [or] highly significant." Id. Therefore, the Court rejects Petitioner's third objection.

Ineffective assistance of counsel

Fourth, Petitioner objects to Judge Bianchini's recommendation that the preserved claim of ineffective assistance of counsel, based on the failure to move to suppress blood tests, is without merit. (Objection ¶ 12.) At the outset, it is well settled that to prevail on an ineffective assistance of counsel claim, Petitioner must show both (a) "that counsel's representation fell below an objective standard of reasonableness .... under prevailing professional norms," Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and (b) "that the deficient performance prejudiced the defense," that is, "that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable," id. at 687, 104 S.Ct. 2052.

As to the blood test, the Court agrees with Judge Bianchini's interpretation of the holding by the New York Court of Appeals in People v. Atkins, 85 N.Y.2d 1007, 630 N.Y.S.2d 965, 654 N.E.2d 1213 (1995). In Atkins, the Court of Appeals held that where, as here, a motorist has consented to a blood test prior to arrest, the statutory prerequisites of New York State Vehicle and Traffic Law § 1194, relied on by Petitioner, do not apply. Accordingly, trial counsel's failure to move to suppress the blood test results as violative of the statute cannot...

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