Roberts v. Scully

• Decision Date: 06 January 1995
• Docket Number: No. 91 Civ. 2484 (MJL).,91 Civ. 2484 (MJL).
• Citation: 875 F. Supp. 182
• Parties: Michael ROBERTS, Petitioner, v. Charles J. SCULLY, Warden, Green Haven Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

875 F. Supp. 182

Michael ROBERTS, Petitioner, v. Charles J. SCULLY, Warden, Green Haven Correctional Facility, Respondent.

No. 91 Civ. 2484 (MJL).

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

January 6, 1995.

COPYRIGHT MATERIAL OMITTED

Magda S. Vives, Asst. Dist. Atty., Bronx County, New York City, for respondent.

Petitioner pro se.

ORDER

KIMBA M. WOOD, District Judge.

This petition for a writ of habeas corpus was originally filed before Judge Mary Johnson Lowe who, on March 18, 1993, referred it to Magistrate Judge Dolinger for a Report and Recommendation. In a Report dated October 15, 1993, the Magistrate Judge recommended that the court deny Michael Robert's petition for a writ of habeas corpus. Petitioner, appearing pro se, filed timely objections, to which no response was filed. The case subsequently was transferred to this court on December 15, 1993.

Petitioner was arrested on January 29, 1987, and charged with entering the Bronx apartment of Clarence White and Vilma White with the intent to steal money and property. Petitioner was convicted of second degree burglary, in violation of N.Y.Penal Law § 140.25, and was sentenced to fifteen years to life in prison. In April of 1991, petitioner first sought a writ of habeas corpus in federal court, arguing the following five grounds for relief: (1) the trial court improperly excluded evidence of an altercation between Mr. White and a person named "Tommy," in violation of petitioner's right to present his defense; (2) the trial court improperly refused to allow petitioner to cross-examine Mrs. White concerning her knowledge of her husband's nearly twenty year old narcotics conviction — again in violation of petitioner's right to present his defense; (3) the court erred in admitting Mrs. White's eyewitness identification at trial because the prosecution did not comply with the notice requirements set forth under New York State law, and because the actual identification was unduly suggestive; (4) the indictment was impermissibly vague and was improperly presented to the grand jury; (5) petitioner received constitutionally ineffective assistance of counsel.

After a de novo review of the Report and of petitioner's objections, I adopt Magistrate Judge Dolinger's recommendation to dismiss the petition for substantially the same reasons contained in his Report.

With respect to petitioner's claims regarding the trial judge's evidentiary rulings, I agree with the Magistrate Judge's conclusion that a trial court's decision to exclude portions of a defendant's proffered evidence can implicate the Fourteenth and Sixth Amendments, even when the judge's ruling is cast in terms of state evidentiary law. See Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 2146-47, 90 L.Ed.2d 636 (1986) (observing that "an essential component of procedural fairness is an opportunity to be heard"); accord Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir.1988). Moreover, I agree that petitioner's pleadings should be construed to raise this Constitutional claim. However, I also agree with the Magistrate Judge's conclusion that in this case, petitioner was not denied the opportunity to present evidence that was material to his defense. See United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (noting that "only if the omitted evidence creates a reasonable doubt that did not otherwise exist" has a constitutional error occurred); cf. United States v. Almonte, 956 F.2d 27, 30 (2d Cir. 1992).

With respect to the trial judge's decision to admit the eyewitness identification of petitioner, I agree with the Magistrate Judge's conclusion that any error was harmless. See Brecht v. Abrahamson, ___ U.S. ___, ___ - ___, 113 S.Ct. 1710, 1717-19, 123 L.Ed.2d 353 (1993). That is, assuming arguendo that the judge improperly admitted the eyewitness identification, I agree that because petitioner's defense was not one of mistaken identity, petitioner cannot claim "that the error had substantial and injurious effect or influence in determining the jury's verdict." Id.

I also concur in the Magistrate Judge's determination that petitioner's claims regarding the inadequacy of the indictment and the improper submission of the defective indictment to the grand jury are procedurally barred, and that the court may raise this bar sua sponte in spite of respondent's failure to do so. Washington v. James, 996 F.2d 1442, 1448-51 (2d Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 895, 127 L.Ed.2d 87 (1994). Specifically, I find that the state courts rejected petitioner's N.Y.Crim.Proc.L. § 440.10 motions regarding the constitutionality of the indictment solely pursuant to Crim.Proc.L. § 440.10(3)(a); therefore, the state courts relied on an adequate and independent state procedural ground in denying petitioner relief. See Coleman v. Thompson, 501 U.S. 722, 738-40, 111 S.Ct. 2546, 2559, 115 L.Ed.2d 640 (1991); Wedra v. LeFevre, 988 F.2d 334, 338-39 (2nd Cir.1993). Furthermore I agree that petitioner has not shown cause for the procedural default, or that a miscarriage of justice would result if this court declined to hear his barred claim. See Murray v. Carrier, 477 U.S. 478, 495-96, 106 S.Ct. 2639, 2649-50, 91 L.Ed.2d 397 (1986).¹

Finally, I agree with the Magistrate Judge's determination that petitioner's claim of ineffective assistance of counsel is without merit for the reasons detailed in his Report. See Report and Recommendation, pp. 194-96.

Accordingly, I adopt Magistrate Judge Dolinger's Report and Recommendation, and the petitioner's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied.

SO ORDERED.

REPORT AND RECOMMENDATION

DOLINGER, United States Magistrate Judge.

Pro se petitioner Michael Roberts seeks a writ of habeas corpus to challenge his 1987 conviction in New York State Supreme Court, Bronx County, on a charge of Burglary in the Second Degree. Petitioner is serving a prison term of fifteen years to life on this conviction.

In his petition, Roberts originally asserted five enumerated grounds for relief, one of which encompassed multiple claims that had previously been raised on two state court post-appeal motions to vacate his conviction. By Opinion and Order filed June 17, 1992, the District Court found that petitioner had failed to exhaust available state court remedies with respect to his third and fourth claims, which challenged, respectively, one aspect of the trial court's jury instructions and the court's refusal to grant a hearing on his motion to suppress eyewitness identification testimony. Accordingly, the District Court denied petitioner's application for appointment of counsel and directed petitioner to withdraw the unexhausted claims or face dismissal without prejudice of the entire petition. (See Opinion & Order at 8-13.)

In response to this decision, petitioner filed a "Motion to Amend," in which he sought leave to delete the third and fourth claims. Based on that amendment, the District Court permitted Roberts to proceed with the balance of his petition (see Order dated June 31, 1992), and subsequently referred the petition to me for a Report and Recommendation. (See Order dated March 11, 1993.)

For the reasons that follow, I recommend that the writ be denied and the petition dismissed with prejudice.

A. Petitioner's Current Claims

Petitioner now asserts, in substance, eight claims. First, he challenges a ruling by the trial court precluding testimony by him that would assertedly have established bias on the part of the complaining witness. Second, he attacks a ruling by the trial court precluding his counsel from cross-examining the wife of the complaining witness concerning her possible knowledge of her husband's earlier narcotics conviction. Third, petitioner in effect reiterates all of the grounds that he had previously raised on two motions filed in state court under N.Y.Crim.Proc.L. § 440.10 to vacate the conviction. In the course of these two motions, petitioner argued that the prosecutor had improperly resubmitted to the grand jury an as-yet unfiled indictment in order to elicit additional evidence, that the evidence presented to the grand jury was insufficient to justify indictment, that the prosecutor had engaged in misconduct before the grand jury, that the indictment was facially insufficient, that the prosecutor had violated Crim.Proc.L. § 710.30 by failing to give timely notice that the State would call two witnesses to give identification testimony, and that petitioner had been denied effective assistance of trial counsel.

B. Prior Proceedings

Petitioner's current predicament is an outgrowth of events that occurred on January 29, 1987, when he was arrested for having allegedly entered the Bronx apartment of Mr. Clarence White and Ms. Vilma Escobar for the purpose of stealing money and property. Roberts was indicted on one count of Burglary in the Second Degree, one count of Petit Larceny, and one count of Criminal Possession of Stolen Property in the Fifth Degree.

Petitioner's trial began on December 8, 1987 before the Hon. George Covington and a jury. At trial, both Mr. White and Ms. Escobar¹ testified that on the evening of January 29, 1987, they and their ten-year-old son had locked the apartment and gone to dinner. (Tr. 30A-32A², 56, 78.) On their return later that night, they discovered that the apartment lights had been turned on, and they found petitioner crouched in the living room, holding a television that had been taken from the bedroom. (Tr. 31A-34A, 43A, 13, 57-60.) Nearby on the floor was a vase containing money that had also been removed from the bedroom. (Tr. 33A, 60, 78.) According to both witness, petitioner sought to escape through an opened window, and, despite Mr. White's efforts to restrain him, he leaped down to the courtyard below and began to flee. (Tr. 34A-37A, 5-6, 30-31, 59.)

Mr. White testified that he had chased petitioner for a number of blocks, until his quarry stopped,...