Ortiz v. Barkley

Decision Date03 June 2008
Docket NumberNo. 05 Civ. 5897(RJH).,05 Civ. 5897(RJH).
Citation558 F.Supp.2d 444
PartiesJai David ORTIZ, Petitioner, v. Warren D. BARKLEY, Superintendent, Cape Vincent Correctional Facility, Respondent.
CourtU.S. District Court — Southern District of New York

Marjorie M. Smith, Marjorie M. Smith Law Office, Piermont, NY, for Petitioner.

MEMORANDUM OPINION AND ORDER

RICHARD J. HOLWELL, District Judge.

Pro se petitioner Jai David Ortiz seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state court conviction for robbing a husband and wife at gunpoint in August of 1999. After a trial by jury, petitioner was convicted of two counts of Robbery in the First Degree, two counts 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. On February 13, 2001 petitioner was sentenced, as a second felony offender, to ten-year terms for each of the robbery counts and the second-degree weapon count, and a seven-year term for the third-degree weapons count, all to run concurrently.

On August 18, 2006, Magistrate Judge Douglas F. Eaton issued a Report and Recommendation ("Report") recommending that Ortiz's petition be denied. Petitioner filed timely objections to the Report. For the reasons that follow, this Court adopts the Report and denies the petition.

BACKGROUND

The background and relevant procedural history are set forth in Judge Eaton's Report, familiarity with which is assumed. The facts relevant to this Opinion are briefly highlighted below.

Henry and Yin Trinh operated a fruit stand outside a storefront in lower Manhattan. On August 8, 1999, just after 9:00 p.m., two men robbed the Trinhs at gunpoint in a parking lot near their stand. The men fled with $ 8,000 in cash and a diamond ring. The Trinhs were unharmed, though a single, perhaps inadvertent, gunshot was fired. After the men left, the Trinhs called 911. They described the gunman to the police as a tall, thin Hispanic man. The responding officer interpreted the Trinhs' statements as indicating that the gunman was a 5'10" Hispanic man, twenty-five years old, weighing approximately 185 pounds. (Tr. II at 180:15-23.)1

While working at the fruit stand a few days after the robbery, Mrs. Trinh saw petitioner in a nearby store and recognized him as the gunman, but she did not contact the police. On August 25 — seventeen days after the robbery — Mrs. Trinh saw the gunman again; this time he was in hand-cuffs and being led out of a hotel a few doors down from her store. Mr. Trinh did not want her to call the police, but she did so anyway the following day. On August 26, she was brought to the precinct for a photo array at which Mrs. Trinh identified petitioner (out of six total photos) as "the person that robbed me." (Tr. I at 73-75.) On September 1, 1999, the police prepared a lineup and both Mr. and Mrs. Trinh individually identified petitioner as the gunman from the robbery.

Petitioner's first trial ended in a mistrial due to juror disagreement. At the second trial, the defense relied on a theory of mistaken identification. Henry Trinh and Yin Trinh were the prosecution's main witnesses. Donna Klett, a Legal Aid attorney and the only defense witness, testified that Mrs. Trinh, when interviewed before trial, said that she had seen the gunman in the neighborhood a number of times before the robbery. At trial, Mrs. Trinh denied making this statement to Ms. Klett. Petitioner's trial counsel argued on summation that though the Trinhs were sincere, they were biased and mistaken. He described the parking lot's lighting as inadequate for a reliable identification, and characterized the Trinh's descriptions of the gunman as incomplete and inconsistent. The jury found petitioner guilty on all counts.

On appeal and with different counsel, petitioner challenged the sufficiency of the evidence and the jury instruction on identification. The Appellate Division unanimously affirmed the conviction. Petitioner also filed two pro se 440 motions. In the first he claimed ineffective assistance of his trial counsel. The trial court denied the motion on November 13, 2003, finding Mr. Ives' representation "meaningful and not constitutionally defective." Permission to appeal the denial of this first motion was denied. On May 17, 2005 petitioner filed a second pro se 440 motion, claiming that the prosecutor had failed to provide Rosario and/or Brady material. The trial court denied this motion without an opinion, and the Appellate Division denied permission to appeal from that ruling.

On June 15, 2005, petitioner timely filed a petition for habeas corpus under 28 U.S.C. § 2254 ("Petition"), claiming:

(1) ineffective assistance of counsel;

(2) deprivation of his due process right to a fair trial, and "Appellate Court [making] unreasonable determination of fact";

(3) that his conviction was against the weight of the evidence; and

(4) denial of due process "by the prosecutor's failure to disclose evidence favorable to the petitioner."

(Pet.5-6.) Petitioner explained each of the grounds in varying degrees of detail. Under ground one, he pointed to his trial counsel's failure to call certain witnesses, attack the credibility of others, and bring particular facts to light. He also attacked the adequacy of the judge's instruction on identification testimony and his counsel's failure to remedy it. (Id. at 5A-5C.) Under ground two, he questioned the reliability of the identification testimony and noted that the Appellate Division appeared to believe that Mrs. Trinh had seen petitioner before the robbery. People v. Torres, 8 A.D.3d 123, 123, 779 N.Y.S.2d 34, 35 (N.Y.App.Div.2004). As to ground three, petitioner disputed various findings of fact and offered alternative interpretations and explanations. (Id. at 6A-6G.) In describing ground four, petitioner mentioned only an alleged disparity between the tape of the Trinhs' 911 call, which was played for the jury and entered into evidence, and the tape's transcript, which was also given to the jury as an aid. (Id. at 6.)

Judge Eaton issued a Report concluding that: (1) any errors by petitioner's trial counsel did not constitute ineffective assistance of counsel; (2) petitioner's claims about the impropriety of the jury instructions involved unreviewable questions of state law and that the Appellate Division's apparent conclusion that Mrs. Trinh had seen the petitioner before the robbery did not foreclose a reasonable jury from deciding that the Trinhs had correctly identified petitioner; (3) the evidence presented against petitioner at trial was sufficient to support a guilty verdict; and (4) the 911 tape had been entered into evidence and the trial court had properly instructed the jury not to consider the allegedly mistaken transcript of the 911 tape as evidence.

DISCUSSION
I. Standard of Review
A. AEDPA

Under 28 U.S.C. § 2254, when a claim has been adjudicated on the merits in state court proceedings, habeas relief may not be granted unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." The court must presume that factual findings made by a state court are correct unless petitioner rebuts this presumption by "clear and convincing evidence." 28 U.S.C. §§ 2254(d)(1), (d)(2), (e)(1); see Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).

B. Review of Magistrate Judges Report

A district court may designate a magistrate to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Upon review of the those portions of the record to which objections were made, the district court judge 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). Reviewing courts should review a report and recommendation for clear error where objections are "merely perfunctory responses," argued in an attempt to "engage the district court in a rehashing of the same arguments set forth in the original petition." Vega v. Artuz, No. 97 Civ. 3775(LTS), 2002 WL 31174466, *1, 2002 U.S. Dist. LEXIS 18270 (S.D.N.Y. Sept.30, 2002); Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y.1997). However, the court is required to make a de novo determination of those portions of a report to which objection is made. 28 U.S.C. § 636(b)(1)(C).

While 28 U.S.C. 636(b)(1) grants district courts discretion to consider additional evidence after a magistrate judge has issued her report, see id. ("The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions."), a district court generally should not entertain new grounds for relief or additional legal arguments not presented to the magistrate, see Gonzalez v. Garvin, 99 Civ. 11062(SAS), 2002 WL 655164, **1-2, 2002 U.S. Dist. LEXIS 7069, at *4*5 (S.D.N.Y. Apr. 19, 2002) (dismissing petitioners objection "because it offers a new legal argument that was not presented in his original petition," and adding that considering such arguments at this point would "undermine the authority of the magistrate"); Grant v. Shalala, No. 93_CV-0124E(F), 1995 WL 322589, at *2 (W.D.N.Y. Mar.13, 1995) ("[V]ia his Objections, the plaintiff is arguing for the first time that he has a constitutional claim ... Were this Court to consider the plaintiffs Objections, the Magistrate's Act would essentially be circumvented."); see also Borden v. Sec'y of Health and Human Servs., 836 F.2d 4, 6 (1st Cir.1987) ("Parties must take before the magistrate, not...

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