Kirk v. Burge, No. 07 Civ. 7467 (LTS)(GWG).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtLaura Taylor Swain
Citation646 F.Supp.2d 534
PartiesJames KIRK, Petitioner, v. John BURGE, et al., Respondent.
Docket NumberNo. 07 Civ. 7467 (LTS)(GWG).
Decision Date06 August 2009
646 F.Supp.2d 534
James KIRK, Petitioner,
v.
John BURGE, et al., Respondent.
No. 07 Civ. 7467 (LTS)(GWG).
United States District Court, S.D. New York.
August 6, 2009.

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Marlon Geoffrey Kirton, Marlon G. Kirton, P.C., New York, NY, for Petitioner.

ORDER ADOPTING REPORT AND RECOMMENDATION

LAURA TAYLOR SWAIN, District Judge.


Petitioner James Kirk ("Petitioner") brings this habeas corpus petition (the "Petition") pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County for two counts of robbery in the first degree, one count of robbery in the second degree, one count of criminal possession of a weapon in the second degree, and one count of criminal possession of a weapon in the third degree. Petitioner asserts five claims for habeas relief: (1) that he was denied his constitutional right to speedy trial; (2) that his Fourth Amendment rights were violated when he was denied a Mapp/Dunaway hearing; (3) that the admission of identification testimony was unduly suggestive; (4) that the trial court erred in responding to a jury note outside of the presence of petitioner or his counsel; and (5) that his twenty-five-year sentence is excessive. Petitioner also moves to amend his Petition to add a new claim for ineffective assistance of counsel.

On February 24, 2009, Magistrate Judge Gorenstein issued a Report and Recommendation (the "Report"), recommending that the Petition be denied. The Court has considered thoroughly all of the parties' submissions, including letters from the Petitioner, who is represented by counsel, that were submitted pro se. For the following reasons, the Court adopts Judge Gorenstein's recommended conclusion and denies the petition for a writ of habeas corpus.

The factual and procedural background of this matter are described in detail in the Report, familiarity with which is presumed.

In reviewing a Report and Recommendation, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C) (West Supp.2006). To accept the Report of a magistrate judge to which no timely objection has been made, a district court "need only satisfy itself that there is no clear error on the face of the record." Johnson v. Reno, 143 F.Supp.2d 389, 391 (S.D.N.Y.2001); see

Page 538

also Bryant v. New York State Dep't of Corr. Servs., 146 F.Supp.2d 422, 424-25 (S.D.N.Y.2001) (court may accept portions of the report to which no objections have been made if it is "not facially erroneous"). The Court is required to make a de novo determination as to those aspects of the Report to which specific objections are made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.1997). However, to the extent that the party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the Report strictly for clear error. See United States ex rel. Casa Redimix Concrete Corp. v. Luvin Constr. Corp., 00 Civ. 7552, 2002 WL 31886040, at *1 (S.D.N.Y.2002); Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F.Supp. 380, 382 (W.D.N.Y.1992); Chabrier v. Leonardo, No. 90 Civ. 0173, 1991 WL 44838, at *1 (S.D.N.Y. Mar. 26, 1991); Schoolfield v. Dep't of Corr., No. 91 Civ. 1691, 1994 WL 119740, at *2 (S.D.N.Y. Apr. 6, 1994). "[O]bjections to a Report and Recommendation are to be specific and are to address only those portions of the proposed findings to which the party objects." Camardo, 806 F.Supp. at 381-82.

Petitioner's counsel timely submitted objections to the Report. Petitioner objects to Judge Gorenstein's conclusion that his constitutional speedy trial claim is procedurally barred and is thus ineligible for habeas review, contending that Petitioner would suffer a "fundamental miscarriage of justice" if the Court fails to consider the merits of this claim. However, as Judge Gorenstein noted in the Report, "[in] the case of procedural default (including where an exhausted claim no longer can proceed in state court), we may reach the merits of the claim only if the defendant can first demonstrate either cause and actual prejudice or that he is actually innocent." (The Report at 11) (internal quotation marks and citation omitted). Since "[t]he term `miscarriage of justice' in this context necessarily includes `actual innocence' of the petitioner," Gibson v. Phillips, 263 Fed.Appx. 78, 80 (2d Cir.2008), this objection simply restates an argument that Judge Gorenstein considered in recommending that the Petition be dismissed. Petitioner's remaining objections likewise simply reiterate the arguments that Petitioner made to Judge Gorenstein in support of the Petition.1 Therefore, the Court applies a clear error standard of review.

The Court has reviewed Judge Gorenstein's comprehensive and well-reasoned Report thoroughly and finds no clear error. Accordingly, the Court adopts Judge Gorenstein's Report and Recommendation in its entirety. For the reasons stated in the Report, the Petition is denied. Petitioner's motion to amend is also denied, for the reasons stated in Judge Gorenstein's Report.

Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealibility." 28 U.S.C.A. § 2253(c)(1) (West Supp.2006). A certificate will be granted "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(2) (West Supp.2006); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir.1997) (discussing the standard for issuing a certificate of appealibility). The Court finds that Petitioner will not be able to sustain this burden. Thus,

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the Court declines to issue a certificate of appealibility.

The Clerk of Court is respectfully requested to enter judgment dismissing the Petition and close this case.

SO ORDERED.

---------------

Notes:

1. The district court decision in Brisco v. Phillips, 376 F.Supp.2d 306 (E.D.N.Y.2005), on which Petitioner relies in reasserting his argument that the "showup" identification procedure was unduly suggestive was reversed by the Second Circuit in Brisco v. Ercole, 565 F.3d 80 (2d Cir.2009). Moreover, the Court finds that the Report sufficiently distinguished Brisco from the instant case on its facts.

---------------

REPORT AND RECOMMENDATION

GABRIEL W. GORENSTEIN, United States Magistrate Judge.

James Kirk, currently an inmate at the Elmira Correctional Facility in Elmira, New York, has brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On March 4, 2004, Kirk was convicted after a jury trial of two counts of robbery in the first degree, robbery in the second degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. See Petition for Writ of Habeas Corpus, filed Aug. 23, 2007 (Docket # 2) ("Pet."), at 1. That same day, Kirk was sentenced to a prison term of 25 years. Id. For the reasons stated below, Kirk's petition and supplemental motion should be denied.

I. BACKGROUND

This case arises out of the robbery of a 99-cent store that occurred on April 22, 2002.

A. Suppression Hearing

A suppression hearing was held on February 9, 2004. (H. 1).1 At the hearing, Police Officer Ramon Fuller testified that on April 22, 2002, he and a partner were on a routine patrol when they saw two individuals pointing at a store and saying that their store had been robbed. (Fuller: H. 4-6). Officer Fuller then saw two individuals running from the store, one wearing a white jacket and the other wearing blue overalls. (Fuller: H. 6, 10). He and his partner pursued the one in a white jacket unsuccessfully. (Fuller: H. 6, 12). Officer Fuller was told via radio that the second person had been apprehended nearby. (Fuller: H. 7). He brought Melody Powell, one of the store owners, to the apprehended individual, where she identified him as the person who had committed the robbery. (Fuller: H. 7-8). At the time of the identification, the individual was in front of a white van, handcuffed, and had uniformed officers around him. (Fuller: H. 15). The individual was later determined to be Kirk. (Fuller: H. 8).

Kirk did not present evidence at the hearing.

The trial judge found Officer Fuller's testimony credible and based his finding of facts on Officer Fuller's testimony along with the testimony of a detective. (H. 38). The court further found that the identification was a "prompt on the street identification in the vicinity of the alleged robbery within minutes of the alleged robbery." (H. 40). Thus, the court determined that the identification was not unreasonably suggestive. (H. 40).

B. Trial and Sentencing

A trial was held from February 10, 2004 to February 17, 2004.

The People called a number of witnesses, including Powell, who described how Kirk stuck a gun in her side, told her to open the cash register, and made off with $800 in cash and several pink bank deposit slips with Powell's name on them.

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(Powell: 2/10 Tr. 99-127). Powell also described her subsequent identification of Kirk. (Powell: 2/10 Tr. 109-10, 124-25). Officer Ulysses Dadacay recounted Kirk's arrest and how he recovered from Kirk's person the stolen money along with pink bank deposit receipts with Powell's name on them. (Dadacay: 2/10 Tr. 31-34). Officer Fuller testified about his interaction with Powell and the chase of Kirk. (Fuller: 2/10 Tr. 127-149). Officer Darrin Scruggs described how he spotted and apprehended Kirk after being radioed of the incident in progress. (Scruggs: 2/10 Tr. 150-163). Detective Gerard Blake described the events at the police station following the arrest. (Blake: 2/10 Tr. 164-183). Detective Blake's testimony included a description of two statements: first, a three-page confession that Kirk dictated and signed, and that Detective Blake wrote;...

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    ...not constitute "an unconscionable breakdown in the state's corrective process." Capellan, 975 F.2d at 72; see, e.g. Kirk v. Burge, 646 F. Supp. 2d 534, 545 (S.D.N.Y. 2009). Since, under Powell, petitioner's Fourth Amendment claims are not cognizable on federal habeas review, those claims (G......
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    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 3, 2014
    ...446035 at *6 (E.D.N.Y. Feb. 1, 2010); Poole v. New York, 08 Civ. 6236, 2009 WL 3009356 at *6 (S.D.N.Y. Sept. 21, 2009); Kirk v. Burge, 646 F. Supp. 2d 534, 545 (S.D.N.Y. 2009); Pena v. New York, 04 Civ. 9499, 2008 WL 4067339 at *9 (S.D.N.Y. Aug. 26, 2008); Smith v. Senkowski, No. 97 CV 1280......
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94 cases
  • Harewood v. N.Y.C. Dep't of Educ., 18 Civ. 5487 (KPF)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 22, 2021
    ...error. See Dickerson v. Conway, No. 08 Civ. 8024 (PAE) (FM), 2013 WL 3199094, at *1 (S.D.N.Y. June 25, 2013); see also Kirk v. Burge, 646 F. Supp. 2d 534, 538 (S.D.N.Y. 2009) (collecting cases). Further, "[c]ourts generally do not consider new evidence raised in objections to a magistrate j......
  • Jurist v. Long Island Power Auth., 19-CV-3762 (MKB) (LB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • May 10, 2021
    ...(first citing Dickerson v. Conway, No. 08-CV-8024, 2013 WL 3199094, at *1 (S.D.N.Y. June 25, 2013) ; and then citing Kirk v. Burge, 646 F. Supp. 2d 534, 538 (S.D.N.Y. 2009) )); Castorina v. Saul, No. 19-CV-991, 2020 WL 6781078, at *1 (S.D.N.Y. Nov. 18, 2020) ("While courts in this [d]istric......
  • White v. Rock, CV-10-5163 (SJF)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 22, 2013
    ...not constitute "an unconscionable breakdown in the state's corrective process." Capellan, 975 F.2d at 72; see, e.g. Kirk v. Burge, 646 F. Supp. 2d 534, 545 (S.D.N.Y. 2009). Since, under Powell, petitioner's Fourth Amendment claims are not cognizable on federal habeas review, those claims (G......
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    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 3, 2014
    ...446035 at *6 (E.D.N.Y. Feb. 1, 2010); Poole v. New York, 08 Civ. 6236, 2009 WL 3009356 at *6 (S.D.N.Y. Sept. 21, 2009); Kirk v. Burge, 646 F. Supp. 2d 534, 545 (S.D.N.Y. 2009); Pena v. New York, 04 Civ. 9499, 2008 WL 4067339 at *9 (S.D.N.Y. Aug. 26, 2008); Smith v. Senkowski, No. 97 CV 1280......
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