Huber v. Schriver

• Decision Date: 17 April 2001
• Docket Number: No. 98-CV-0017 (NGG)(WDW).,98-CV-0017 (NGG)(WDW).
• Citation: 140 F.Supp.2d 265
• Parties: Stuart HUBER, Petitioner, v. Sunny SCHRIVER, Superintendent, Wallkill Correctional Facility, Respondent.
• Court: U.S. District Court — Eastern District of New York

140 F.Supp.2d 265

Stuart HUBER, Petitioner, v. Sunny SCHRIVER, Superintendent, Wallkill Correctional Facility, Respondent.

No. 98-CV-0017 (NGG)(WDW).

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

April 17, 2001.

COPYRIGHT MATERIAL OMITTED

Stuart Huber, Huntington, NY, pro se.

MEMORANDUM AND ORDER

GARAUFIS, District Judge.

Pro se Petitioner Stuart Huber brings this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The underlying facts of the trial are set forth in great detail in Magistrate Judge William D. Wall's Report and Recommendation ("R & R") below and need not be repeated here. I repeat portions of the post-conviction procedural history for context only.

On May 29, 1992, Petitioner was convicted after a jury trial of robbery in the first degree. He was sentenced to a term of incarceration of four to twelve years. On May 16, 1996, Petitioner moved pursuant to New York Criminal Procedure Law § 440.10 to vacate his conviction on the grounds of newly discovered exculpatory evidence and Brady violations. His motion was denied.

On December 22, 1997, Petitioner timely filed the instant petition for a writ of habeas corpus, asserting five grounds for relief: (1) Brady violations, (2) failure to establish guilt beyond a reasonable doubt, (3) erroneous evidentiary rulings, and (4) improper jury instructions. The matter was referred to Magistrate Judge Wall for a report and recommendation. Since then Petitioner has been released from prison on probation. Petitioner filed specific objections to the R & R on November 27 and December 8, 2000. I have reviewed de novo the objections, the record, and Magistrate Judge Wall's R & R, see 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b), and find Petitioner's arguments unconvincing.

Magistrate Wall concluded that this court retains jurisdiction over Petitioner's application for a writ of habeas corpus because he was "in custody" at the time he filed his petition. See infra at 4 (citing Spencer v. Kemna, 523 U.S. 1, 11, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)). I agree with that statement and add only that the controversy is not mooted by Petitioner's release because being "on parole" satisfies the "in custody" requirement of 28 U.S.C. § 2254(a). See Jones v. Cunningham, 371 U.S. 236, 242-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).

Regarding the substantive issues, I am in full agreement with and hereby adopt the magistrate's analysis of Petitioner's habeas claims. See 28 U.S.C. § 636(b)(1). Petitioner's objections to the R & R are without sound legal or factual support. Accordingly, for the reasons set forth in the R & R reproduced below,¹ Petitioner's application for a writ of habeas corpus is denied. In addition, because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2). The Clerk of the Court is directed to close the case.

SO ORDERED.

WALL, United States Magistrate Judge.

On May 29, 1992, after a jury trial, petitioner was convicted of robbery in the first degree and was sentenced to an indeterminate term of imprisonment of four to twelve years. (T at 437-39; S at 37-38.²) He appealed his conviction to the New York Supreme Court, Appellate Division, Second Department. In a Decision and Order dated February 14, 1994, the Appellate Division unanimously affirmed petitioner's conviction. See People v. Huber, 201 A.D.2d 583, 609 N.Y.S.2d 806 (N.Y.App.Div.1994). Thereafter, by certificate dated April 24, 1994, leave to appeal to the New York Court of Appeals was denied. See People v. Huber, 83 N.Y.2d 872, 613 N.Y.S.2d 133, 635 N.E.2d 302 (1994). Petitioner did not seek a writ of certiorari in the United States Supreme Court.

In 1995, while he was incarcerated, petitioner claims that he was told by another inmate, Richard Katz, that a third person, Charles Kroll, had "confessed" to the robbery for which petitioner was convicted. (Pet. Mem. at 19.) By motion dated May 16, 1996, petitioner moved the Nassau County Court, pursuant to New York State Criminal Procedure Law § 440.10, to vacate the judgment of conviction. The motion was denied without a hearing by Order dated December 20, 1996. Petitioner applied for leave to appeal that Order, and leave was denied by Decision and Order dated May 6, 1997. See People v. Huber, No. 97-01160 (N.Y.App.Div.1997). On December 22, 1997, petitioner filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Respondent Sunny L. Schriver, Superintendent of Walkill Correctional Facility, moved, pursuant to 28 U.S.C. § 2244(d), to dismiss the application as time-barred, and that motion was denied by District Judge Hurley in a Decision and Order dated February 3, 1999. Respondent opposes petitioner's application for habeas relief. Respondent concedes that each of Petitioner's claims is exhausted, but contends that some aspects of the claims are procedurally barred, that some do not present constitutional questions, and that they are all without substantive merit. (Resp.Aff. ¶¶ 68-69.)

By letter dated October 13, 2000, Petitioner informed the Court that he has been released from prison, but still wishes to pursue his habeas application. Despite petitioner's release from prison, this Court retains jurisdiction over petitioner's habeas application. The "in custody" requirement of the habeas statute is satisfied if, as here, petitioner was incarcerated at the time the petition was filed. See Spencer v. Kemna, 523 U.S. 1, 11, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).

FACTUAL BACKGROUND

1.) The King Kullen Robbery on March 14, 1991:

On March 7, 1991, at approximately 8:30 p.m., Jeffrey Fischler and Kenan Karatas, employees of the King Kullen supermarket at 5 Cold Spring Road in Syosset, observed a man whom they later identified as petitioner walk into the store. (T at 4-6, 16-17, 39-40, 44-45, 48-49.) The man walked back and forth near the front office courtesy counter. (Id. at 40, 45-46.) Mr. Fischler followed him around for three or four minutes, and was, at times, within arm's length of him. (Id. at 6, 11-12.) The man was wearing a cowboy hat and carrying a gun in a shoulder holster. (Id. at 5-6, 40.) Mr. Fischler noted that he was white, about 6'4" to 6'5" in height and between 25 and 30 years old, with light brown hair and hazel eyes, wore boots, did not have a mustache, and weighed between 225 and 250 pounds. (Id. at 5-7, 12, 27-29.) The man went to the checkout line, where Mr. Karatas was bagging groceries. (Id. at 41.) As Mr. Karatas stared at his gun, the man flashed open his jacket and claimed to be a police officer. (Id.)

One week later, on March 14, 1991, at approximately 8:30 p.m., Messrs. Fischler and Karatas again saw a man whom they later identified as petitioner in Aisle 1 of the same King Kullen supermarket. (Id. at 12, 16-17, 42, 44-45.) Mr. Karatas observed him standing near the front office courtesy desk. (Id. at 45-46.) Mr. Fischler noticed that he was wearing a baseball cap and what appeared to be a "fake" looking mustache. (Id. at 13, 28.)

At about 8:30 p.m., Alice Quinn, a cashier at the supermarket, went to the store's courtesy desk to tally money. The man approached Ms. Quinn, pulled out a gun, and gave her a paper bag and a note that read "I have a gun. Please be quiet and put all the money in the bag." (Id. at 70-73.) He held the gun in his left hand. (Id. at 85-86.) Ms. Quinn complied with his demand. (Id. at 74.) She had an unobstructed view of the robber under good lighting conditions for three or four minutes, during which time she noticed that he was wearing a fake mustache, a baseball cap, and a tan jacket. (Id. at 71-73, 75-77, 80, 86.) He demanded that Ms. Quinn return the note. She did so; he left the store; and the police were called. (Id. at 75, 77.)

Detective Michael Kuhn and Officer Thomas Salvato of the Nassau County Police Department arrived and interviewed Ms. Quinn, who told them that the robber had been wearing a "phony" mustache, and that he was brown-haired, dark-eyed, "very tall" (approximately 6'3"), white, about 200 pounds, with a big nose. (Id. at 73, 78, 80, 86, 88, 130-32, 134-35)

Subsequently, someone from the Suffolk County Police Department told Detective Bartlett of the Nassau County Police Department that Suffolk County had, two years earlier, arrested petitioner for the robbery of a King Kullen supermarket in Suffolk County, under circumstances similar to the robbery of the Syosset King Kullen³. (H at 15, 38.) Detective Bartlett conveyed the information about the earlier King Kullen robbery to Detective Kuhn. (Id. at 15.) The Suffolk County Police Department gave Detective Kuhn a photograph of petitioner, in which he was not wearing a mustache. (Id. at 13, 42.) The Nassau County detectives prepared two photo packs, each of which contained a photograph of petitioner and photos of five other men who resembled petitioner. In one array, petitioner and the "fillers" were clean shaven; in the other, a mustache was added to petitioner's photo and the fillers were men with mustaches. (Id. at 16-17.)

Detective Kuhn showed the photo packs to Mr. Fischler, who identified petitioner from both arrays as the person he had seen in the store on the night of the robbery, stating that "[H]is face is perfect and it is positively the same person." (Resp. Exh. 1 at 54; H at 19.) Detective Kuhn also showed the photo packs separately to Ms. Quinn and Mr. Karatas. (H at 21.) Ms. Quinn identified petitioner from both photo packs as the person who robbed her, stating that "His face and eyes are definitely those of the man who robbed me." (Resp. Exh. 1 at 56; H at 21-22.) Mr. Karatas "believed" that the man he had seen in the store was either number four or number six in the first array. (H at 23-24, 38-39.) Petitioner was, in fact, number six in that array. (Id. at 39.)

Detective Kuhn arrested petitioner on March 24, 1991, and Detective James Bennett...