Nieves v. Kelly

• Decision Date: 23 December 1997
• Docket Number: No. 96 Civ. 4382(DLC).,96 Civ. 4382(DLC).
• Citation: 990 F.Supp. 255
• Parties: Phillip NIEVES, Plaintiff, v. Walter R. KELLY, Superintendent, Defendant.
• Court: U.S. District Court — Southern District of New York

990 F.Supp. 255

Phillip NIEVES, Plaintiff, v. Walter R. KELLY, Superintendent, Defendant.

No. 96 Civ. 4382(DLC).

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

December 23, 1997.

Phillip Nieves, Attica, NY, pro se.

Allen H. Saperstein, Assistant District Attorney, Bronx, NY, for Defendant.

MEMORANDUM OPINION AND ORDER

COTE, District Judge.

Through a March 18, 1996, petition for a writ of habeas corpus, received by the Court's Pro Se Office on April 11, 1996 and filed on June 14, 1996, Philip Nieves ("Nieves") attacks a 1983 conviction for a robbery occurring at approximately 7:15 p.m. on February 16, 1982 ("the 7:15 robbery"). In doing so, Nieves relies on a subsequent conviction for another robbery occurring 15 minutes earlier on February 16, 1982, and four blocks away ("the 7:00 robbery"). In effect, he argues that he could not have committed both robberies and that his trial counsel was ineffective in not submitting proof that he had committed the 7:00 robbery during his trial for the 7:15 robbery. He also argues that the Government violated its Brady obligations by withholding evidence that tended to show that he was innocent of the 7:15 robbery.

On August 2, 1996, this Court referred the petition to Magistrate Judge Andrew J. Peck for a Report and Recommendation. On November 13, 1997, Judge Peck issued his Report ("Report") and recommended that the petition be denied. The petitioner has filed no objections to the Report. In order to preserve its rights, the respondent has objected solely to that portion of the Report which concludes that the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") does not apply retroactively.

Standard

A court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). See Fed.R.Civ.P. 72(b). A court may accept those findings to which no specific written objection is made as long as those findings are not clearly erroneous. See Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y.1997); Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y. 1991). A de novo review must be conducted of those issues to which a specific written objection has been made. Fed.R.Civ.P. 72(b). See Greene, 956 F.Supp. at 513.

Discussion

Reviewing de novo the respondent's objection that the petition is untimely under the AEDPA, I find that the objection is without merit. As described in the Report, this habeas petition is not time-barred by the AEDPA, which was signed into law on April 24, 1996, since the AEDPA's one-year statute of limitations for filing petitions for habeas corpus does not apply retroactively to petitions made before the effective date. See Nelson v. Walker, 121 F.3d 828, 831 (2d Cir.1997); Reyes v. Keane, 90 F.3d 676, 679 (2d Cir.1996). While Nieves' petition was not filed before the AEDPA's April 24, 1996 effective date, it was sworn to on March 18, 1996 and received by this Court's Pro Se Office on April 11, 1996. Thus, the petition is timely.

I review the balance of the Report for clear error and find none. As Judge Peck points out in his thorough and well reasoned Report, the failure of defense counsel to offer proof at Nieves' first trial — the trial for the 7:15 robbery — that he committed a robbery 15 minutes earlier and four blocks away does not constitute ineffective assistance of counsel. The same attorney represented Nieves at his two robbery trials. He was well aware of the proximity in time and place between the two crimes and Nieves' contention that he could not have committed them both. It was entirely reasonable for defense counsel to make the tactical decision that Nieves would be harmed by offering proof that Nieves had committed another robbery when that proof would not conclusively establish that it was impossible for Nieves to have committed both robberies. Defense counsel chose instead to attack the reliability of the witness identification testimony.

The Brady argument is also quickly disposed of. As Judge Peck explains, the information which Nieves contends was withheld was either known to the defense or was not exculpatory.

Conclusion

The Court adopts Judge Peck's recommendation that the petition be denied. The Clerk of Court shall dismiss this petition. Further, I find that a certificate of appealability shall not issue and that, pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

SO ORDERED.

REPORT AND RECOMMENDATION

PECK, United States Magistrate Judge.

Petitioner Philip Nieves petitions for a writ of habeas corpus, alleging that his trial counsel was ineffective and that the State committed Brady violations by failing to disclose a photographic array, lineup sheet and witness statements from a different robbery with which Nieves also was charged. (See Petition ¶ 12(A)-(B).) This petition involves Nieves' conviction for robbing Milton Moran on February 16, 1982 at 7:15 P.M. In a separate trial occurring some months after the Moran trial, Nieves was convicted of robbing Tony's Deli at around 7:00 P.M. on February 16, 1982. Nieves' habeas claim is premised on the argument that since he was found guilty of the Tony's Deli robbery that occurred at approximately the same time as the Moran robbery, he could not have been guilty of the Moran robbery. Not surprisingly, his defense counsel did not pursue such a risky second robbery alibi defense at trial. For the reasons set forth below, I recommend that the Court deny Nieves' habeas petition.

FACTS

Petitioner Nieves was convicted after a jury trial for the armed robbery of Milton Moran, and sentenced to 12½ to 25 years imprisonment. (See Petition, ¶¶ 1-4, 12.)

THE MORAN ROBBERY

Milton Moran testified that on February 16, 1982 at approximately 7:15 P.M., when he entered his apartment house at 2121 Grand Concourse and 181st Street in the Bronx, Nieves robbed him at gunpoint. (3/15/83 Wade Tr. at 8, 19-20; 3/17/83 Trial Tr. At 5-6, 12.) Nieves stood in front of Moran for one to two minutes, while two accomplices came behind Moran and stole his wallet containing $60. (3/15/83 Wade Tr. at 8-9, 21-22, 24-25; 3/17/83 Trial Tr. at 6-7, 24, 34.) Moran did not see the faces of the robbers who were behind him. (3/15/53 Wade Tr. at 22; 3/17/83 Trial Tr. at 25, 36.) When Moran ran after the robbers, Nieves fired three shots at him. (3/15/83 Wade Tr. at 9-10; 3/17/83 Trial Tr. at 8, 26-27.)

Moran reported the robbery and went to the police station to look at two books of photographs, but could not identify any of his assailants. (3/15/83 Wade Tr. at 10-11, 13-14.) On February 17, 1982, Officer McNamara showed Moran a four-photograph array and Moran identified Nieves, and then picked Nieves out of a lineup on February 18, 1982. (Id. at 11-12, 14-15, 31-35, 40-42, 55-56; 3/17/83 Trial Tr. at 10, 33; see also 3/16/83 Trial Tr. at 17-21, 24-32.) Moran noted that he had seen Nieves four times before the robbery, hanging around the neighborhood. (3/15/83 Wade Tr. at 12-13, 31; 3/15/83 Trial Tr. at 10-12.) The assistant district attorney produced to the defense at the Wade hearing a photograph of the lineup, but indicated that he did not have the photo array at that time. (3/15/83 Wade Tr. at 15-16, 39-40.) The Court at the Wade hearing denied Nieves's motion to suppress Moran's identification testimony, finding that the photo array and lineup were not suggestive. (Id. at 56-56a.)

Nieves' counsel's cross-examination of Moran at trial raised questions as to the lighting conditions, how long Moran saw Nieves, that the assailant was wearing a hood that covered part of his face, that Moran was nervous, etc., to raise reasonable doubt as to Moran's identification of Nieves. (E.g., 3/17/83 Trial Tr. 17, 24, 55-61.) Counsel also argued that Moran may have picked Nieves out of the lineup because he was a "familiar face," not from the robbery but from Moran having seen Nieves hanging around the neighborhood. (Id. at 63-64.)

The People rested after the trial testimony of Officer McNamara and Mr. Moran. (Id. at 37.) Mr. Nieves indicated, on the record outside the jury's presence, that he did not wish to testify. (Id. at 43-44.) The defense rested without calling any witnesses. (Id. at 44.)

After lengthy deliberation, the jury found Nieves guilty of robbery. (3/19/83 Trial Tr. at 130-32.) Nieves was sentenced to 12 1/2 to 25 years imprisonment. (Petition ¶ 3.)

THE TONY'S DELI ROBBERY

Nieves was represented by the same lawyer, Mr. Lazarus, on both the Moran and Tony's Deli robbery charges. (See Petition ¶ 12 at inserted p. (d).) Three armed robbers held up Tony's Deli on February 16, 1982. Nieves and two co-defendants, Jimmy Aponte and George Dodaj, were charged with that robbery. Nieves relies in his present habeas petition on evidence from the Tony's Deli robbery trial as to the timing of the Tony's Deli robbery, which, he maintains was exculpatory as to the Moran robbery. (See Petition ¶ 12(A)-(B).)

The Wade Hearing

On May 16, 1983, a Wade hearing was held in the Tony's Deli robbery case. (See 5/16-19/83 Wade Tr.) Tony's Deli is a bodega located at 2071 Valentine Avenue and 180th Street in the Bronx. (Id. at 34-35, 209, 239, 250, 293-94.) Officer McNamara testified about the February 18 and 19, 1982 lineups of Nieves and his two co-defendants for the Tony's Deli robbery. (Id. at 3-4, 13-16.) Of the five Tony's Deli witnesses who viewed Nieves' lineup, only one, Carlos Romero, identified Nieves as one of the robbers. (Id. at 16-18, 58-71, 251-61, 285.) Other witnesses identified Nieves's co-defendants, Jimmy Aponte and George Dodaj, in separate lineups. (E.g., id. at 10, 25-26, 33.)

Officer Joglar testified at the Wade hearing about the photo array involving Nieves in the Tony's Deli case. (Id. at 108-10.) Officer Joglar produced that photo array at the hearing and it was entered into...