Osborne v. Miller, 03 CIV. 2761 RJH DF.

• Decision Date: 30 May 2008
• Docket Number: No. 03 CIV. 2761 RJH DF.,03 CIV. 2761 RJH DF.
• Citation: 557 F.Supp.2d 435
• Parties: Randall OSBORNE, Petitioner, v. David L. MILLER, Superintendent, Eastern Correctional Facility, Respondents.
• Court: U.S. District Court — Southern District of New York

Page 435

557 F.Supp.2d 435

Randall OSBORNE, Petitioner, v. David L. MILLER, Superintendent, Eastern Correctional Facility, Respondents.

No. 03 CIV. 2761 RJH DF.

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

May 30, 2008.

Randall Osborne, Napanoch, NY, pro se.

MEMORANDUM OPINION AND ORDER

RICHARD J. HOLWELL, District Judge.

Pro se petitioner Randall Osborne seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state court conviction for burglarizing a hospital. A jury found Petitioner guilty of four counts of burglary in the second degree, and one count each of petit larceny and possession of stolen property in the fifth degree. Petitioner was sentenced to a term of sixteen years to life imprisonment, which he is currently serving at the Easter Correctional Facility in Napanoch, New York.

On June 28, 2006 Magistrate Judge Debra Freeman issued a Report and Recommendation ("Report") recommending that Osborne'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 Freeman's Report, familiarity with which is assumed. The facts relevant to this Opinion are briefly highlighted here.

On the evening of Sunday, June 29, 1997, Dr. Mario DiTullio, a Columbia Presbyterian Medical Center ("CPMC") cardiologist, discovered that his keys were missing. (Report at 2.) With the help of a security officer, he transferred some of his office's equipment to another room — leaving his computer, monitor, printer, and calendar in the office — and locked the office with the security officer's keys. (Id. at 3.).

That night, security guard Teresa McGourty was assigned to work from 11:30 p.m. until 8:00 a.m. the following morning in the Babies Hospital, a part of the medical center complex.¹ At 6:45 a.m. on June 30, McGourty, sitting in the front desk of the Babies Hospital's south entrance lobby, saw Petitioner, dressed in scrubs and carrying two large shopping bags, heading for the building's exit. (Id. at 4-5.) She called him over to verify the contents of the shopping bags. (Id. at 5.) Petitioner explained that he was "cleaning out his office;" McGourty asked him to approach, and Petitioner, placing his bags on a chair, stood about a foot from McGourty while their conversation continued. (Id.) As she looked through the bags, McGourty asked Petitioner to identify himself; Petitioner was reluctant, failing to respond or to produce his identification card. (Id.) McGourty became suspicious and called for an additional security unit. Petitioner then began backing away from the desk, saying, "I'll be right back, I'll be right back;" he eventually turned and exited the building. The encounter had lasted approximately three to five minutes. (Id.)

The contents of the shopping bags were identified as DiTullio's computer tower, printer and calendar. (Id. at 3, 5.) McGourty, along with security investigator James Verdicchio, viewed a security videotape of the incident later that morning. (Id. at 5.) McGourty recognized the man in the tape as the man she had encountered earlier that morning. (Id.) She returned to work at 11:15 p.m. on June 30, and at the daily roll call, she heard a routine advisory reporting her encounter with, and her description of, the scrub-clad man. (Id.)

Three days later, on the night of July 3, 1997, security guards Steven Brown and Robert Gojani were on duty in the emergency room. (Id. at 6.) Earlier that day, they had both received a description from Sergeant Julio Pujlos of a thin black male at least six feet tall, with a mustache and goatee, wearing some sort of identification card and a scrub suit, who had attempted to leave the Babies Hospital with some hospital equipment. At 9:45 p.m., Brown and Gojani spotted a man fitting that description as he entered an area reserved for authorized personnel. (Id.) In court, Brown and Gojani identified Petitioner as the man they saw walk into the emergency room that night. They followed and stopped Petitioner as he reached a corridor leading to other hospital buildings. The guards asked him if he needed any assistance; Petitioner replied that he was looking for a patient, Kathy Williams. They asked why he had not inquired about the patient at the front desk, and Petitioner replied that he thought the patient could be at the Millstein Hospital building. At that point, Brown radioed for his supervisor, Sergeant Pujlos, who, with Brown, and Gojani led Petitioner to a reception desk. (Id. at 7.) A computer records search revealed no patient named Kathy Williams, and, while the guards continued to question Petitioner about the nature of his visit to the hospital, Brown noticed a light blue top peaking out from under Petitioner's outer shirt. (Id.) Upon the guards' request, Petitioner raised his outer shirt and revealed a surgical scrub shirt underneath. (Id.) The officers escorted Petitioner to the security office, searched him, and placed him under arrest for trespassing. (Id.) The search of Petitioner revealed an identification card attached to a chain and two sets of keys, one of which carried the label of "property of Presbyterian Hospital," as well as a dark blue shopping bag containing another set of scrubs. (Id.)

Pujlos notified McGourty that he had a man "matching the description she had given" in detention and called her to the security office for purposes of identification.² (Id. at 8.) When McGourty arrived, she found the desk officers busy and proceeded into the conference room of the security office to look for a colleague. (Id.) Upon entering the room, McGourty saw Petitioner sitting a few feet away from her, at the head of a long conference table at which four to six other people were seated. (Id.) Immediately recognizing him as the man who had tried to leave Babies Hospital with the two shopping bags of equipment four days prior, McGourty approached Petitioner and asked if he remembered her. (Id.) Petitioner looked at McGourty, did not respond, and "put his head back down." (Id.)

At trial, Petitioner moved to suppress two show-up identifications: the one by McGourty and another not relevant for purposes of this opinion. (Report at 9.) The trial court granted his request, finding that the procedures used by the officers to obtain out-of-court identifications were inappropriate and unduly suggestive. (Id.) Two independent source hearings were subsequently held before the trial court to determine whether each identifying witness had an independent source upon which to base an in-court identification of Petitioner. (Id.) The trial court found that the testimony was "more than sufficient" to show that the testifying witnesses — including McGourty — had a valid source upon which to base in-court identifications, one independent of the tainted show-up identification. McGourty, as a result, was permitted to identify Petitioner in court. (Id.)

At trial, Petitioner presented a misidentification defense, claiming that he had never entered the hospital on June 29 or June 30, and that on July 3 he visited the hospital to find his friend, Kathy Williams. (Id at 12-13.) He explained the second set of scrubs as something for his friend to wear, and claimed that he had found the hospital keys lying on the floor outside of the emergency room but, because of poor lighting outside, he was unable to make out what type of keys they were. (Id.) Nonetheless, on March 23, 1998 a jury convicted Petitioner of four counts of burglary in the second degree, once count of petit larceny, and one count of criminal possession of stolen property in the fifth degree. (Id.)

On appeal, Petitioner argued, inter alia, that the trial court had erroneously permitted McGourty to identify Petitioner in court due to the tainted nature of the identification. According to Petitioner, the security videotape (which he also argued had been improperly admitted), the show-up identification, and the viewing of a single photograph taken of Petitioner while in custody prior to trial all had tainted McGourty's identification testimony to such a degree that it was no longer admissible. (Id. at 13, 14 n. 4.) The Appellate Division, agreeing with the trial court's independent source determination and disposing of Petitioner's other arguments, affirmed the conviction. (Id. at 14.) On March 6, 2002, Petitioner's application for leave to appeal to the Court of Appeals was denied. People v. Osborne, 97 N.Y.2d 759, 742 N.Y.S.2d 619, 769 N.E.2d 365 (2002). On March 17, 2003, Petitioner timely filed his habeas petition under 28 U.S.C. § 2254, arguing that he was denied his right to a fair trial and appeal as a result of several evidentiary errors, and that he was also denied the effective assistance of appellate counsel. (Pet. at 3-4.) The Report found Petitioner's claims "unavailing, and recommended denying Petitioner's application for habeas.

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." For the purpose of this review, "clearly established Federal Law" "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The court presumes that factual findings by a state court are correct unless petitioner rebuts this presumption with "clear and convincing evidence." 28 U.S.C. §§ 2254(d)(1), (d)(2), (e)(1); see Miller-El v. Dretke, ...