Taylor v. Kuhlmann
| Decision Date | 22 February 1999 |
| Docket Number | No. CV 94-2218 ADS.,CV 94-2218 ADS. |
| Parties | Rodolfo TAYLOR, Petitioner, v. Robert KUHLMANN, Superintendent, Sullivan Correctional Facility; Dennis Vacco, Attorney General, the State of New York, Respondents. |
| Court | U.S. District Court — Eastern District of New York |
Rodolfo Taylor, Beacon, New York, petitioner pro se.
Office of the Suffolk County District Attorney, Riverhead, New York, by Guy Arcidiacono, Assistant District Attorney, of counsel, for the respondents.
Rodolfo Taylor, Beacon, NY, pro se.
Office of Suffolk County Dist. Atty. (Guy Arcidacono, Asst. Dist. Atty., of Counsel), Riverhead, NY, for Respondents.
The habeas corpus petitioner, Rodolfo Taylor, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, in which he claimed the following six grounds for relief: (1) he was denied the right to counsel during a series of lineups; (2) the witnesses identifications of him were the product of unduly suggestive lineups; (3) the trial court committed two evidentiary errors during the pre-trial Wade/Dunaway suppression hearing when it precluded defense counsel from establishing the exact time of petitioner's arrest and how the lineup participants were selected; (4) the trial court erred by entering a conviction under Indictment Number 1135-84 for Robbery in the First Degree rather than Robbery in the Second Degree; (5) he was illegally arrested at his home in violation of his Fourth Amendment rights; and (6) he was denied the effective assistance of counsel at trial.
In a Report and Recommendation dated November 13, 1997, United States Magistrate Judge Arlene R. Lindsay recommended that Taylor's petition be denied in its entirety. This Court granted Taylor an extension of time to object to the Report. He filed an initial objection on September 11, 1998 and a supplemental objection on October 16, 1998. By a letter to the Court dated December 9, 1998, respondent's counsel indicated that he was not filing any objections to the Magistrate Judge's Report and Recommendation.
Pursuant to 28 U.S.C. § 636(b)(1), any party may file written objections to the Report and Recommendation of the Magistrate Judge. See also Fed.R.Civ.P. 72(a). Where, as here, objections have been filed, the district court is required to make a de novo determination as to those portions of the Report and Recommendation to which objections were made. See 28 U.S.C. § 636(b)(1); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989).
The Court has carefully reviewed Judge Lindsay's thoughtful, detailed and thorough Report and Recommendation, as well as the petitioner's submissions and objections, and concurs with Judge Lindsay's recommendations for the reasons set-forth in her well-reasoned Report.
Accordingly, it is hereby
ORDERED, that the Court adopts the Report of United States Magistrate Judge Arlene R. Lindsay, dated November 13, 1997, recommending that Taylor's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be dismissed; and it is further
ORDERED, that Taylor's petition for a writ of habeas corpus is dismissed in its entirety; and it is further
ORDERED, that the Clerk of the Court is directed to close this case.
SO ORDERED.
REPORT & RECOMMENDATION
The district court has referred Rodolfo Taylor's ("Petitioner's" or "Taylor's") habeas corpus petition, filed pursuant to 28 U.S.C. § 2254, to the undersigned for a report recommending whether habeas relief is warranted. In his pro se petition, Taylor challenges two convictions entered after two separate jury trials in the County Court of the State of New York, Suffolk County, for three counts of robbery in the first degree. (New York Penal Law § 160.15). A judgment of conviction for two counts of robbery in the first degree was entered on September 3, 1985 under Indictment No. 1355-84, and a judgment of conviction for one count of robbery in the first degree was entered on October 31, 1985, under Indictment No. 1185-84, as amended on November 1, 1985. Petitioner was sentenced to two indeterminate terms of incarceration of nine to eighteen years on each indictment to be served consecutively.
Taylor has raised the following grounds in support of his petition: (1) that he was entitled to have an attorney present at the time he appeared in a series of lineups and, the failure to provide him with counsel violated his constitutional rights; (2) that the lineups were unduly suggestive; (3) that the trial court committed reversible error with respect to two evidentiary rulings during the Wade/Dunaway hearing when it precluded defense counsel from establishing the exact time of petitioner's arrest and how the lineup participants were chosen; (4) that the trial court committed reversible error by entering a conviction under Indictment No. 1135-84 for robbery in the first degree rather than robbery in the second degree; (5) that he was illegally arrested at his home in violation of his fourth amendment rights and, therefore, the lineup identifications obtained as a result of the illegal arrest should have been suppressed; and (6) that his trial counsel's assistance was ineffective because counsel failed to move for suppression of the lineup identifications as a product of his illegal arrest. For the following reasons, it is RECOMMENDED that the district court deny Taylor's petition.
Prior to July 1984, Detective Robert Anderson of the Third Precinct of the Suffolk County Police Department had been assigned to investigate a series of gas station robberies including the robbery of a Texaco station located at Motor Parkway and the Long Island Expressway in Brentwood, New York ("the Texaco robbery") which occurred on February 22, 1984, and two robberies of a Shell gas station located at Route 111 and Spur Drive in Central Islip, New York, which occurred on June 2nd and again on June 10, 1984.1 (T. 10-11, 77-80). Harold Bailey had been working as an attendant at the Shell station on June 10th and had witnessed that robbery. (T. 15). On July 1, 1984, Detective Anderson asked Bailey to come to the Third Precinct to view a photo spread. (T. 13). Bailey was shown a photo spread and identified the petitioner Rodolfo Taylor as the person who committed the June 10th robbery. (T. 16). Based on Bailey's identification, Anderson told Taylor's parole Officer, Officer Houlan, that Taylor was a robbery suspect in the robberies and they discussed transporting the petitioner to the precinct to appear in a lineup. (T. 139, 140).
On July 3, 1984, Taylor was asked to accompany Officer Houlan and two Suffolk County police officers to the Third precinct where he appeared in a series of ten lineups. (T. 96) Five witnesses — Dennis Ford, Daniel Farrell, and Kathleen Young (the eye-witnesses of the June 2nd Shell robbery), Gary Meenahan (the victim of the February 22nd Texaco robbery) and Bailey — each viewed two separate lineups in which they all positively identified Taylor as the individual who had committed the robbery he or she had witnessed. (T. 24, 26, 39, 43, 53, 55, 64A, 65, 71, 72). Although Detective Anderson considered Taylor to be technically under arrest after each witness identified him, petitioner was not actually placed under arrest until the conclusion of the lineups. (T. 56, 74). At that time, Detective Anderson recorded his pedigree information: Taylor was 23 years old, 6'2½" tall and weighed approximately 160 pounds. (S.102).
Rodolfo Taylor was subsequently charged with two counts of robbery in the first degree under Indictment No. 1185-84 for the Texaco and June 10th Shell robberies and with two counts of robbery (robbery in the first and second degree) under Indictment No. 1355-84 for the June 2nd Shell robbery.
On June 13 and June 17, 1985, the trial court held an extensive pre-trial Wade/Dunaway hearing on the charges contained in both indictments.2 Taylor challenged the photo spread identification and the lineups as unduly suggestive and violative of his due process rights. (T. 8). He further challenged the failure to provide him with counsel at the lineups and raised the issue of probable cause for his arrest. Id. Detective Anderson was the only witness who testified at the hearing. He described the procedures used to conduct both the photo spread shown to Bailey and the lineups viewed by all the witnesses.
With respect to the photo spread, Detective Anderson testified that on July 1, 1984, Harold Bailey was shown a photo spread at the Third Precinct. (T. 13). Anderson had prepared a folder of photographs that had been numbered one through eight. (T. 131). Each photograph was placed behind a manila folder with a cut-out exposing only the face of a black male. (T. 14). Anderson told Bailey to look at the photographs and, if he recognized one of them as the subject who robbed him, to tell Anderson the number of the photograph. (T. 15). Bailey looked at the photographs for about a minute and identified photograph numbered "2" as the person who robbed him. This was a photograph of Rodolfo Taylor. (T. 16, 131-132). Bailey indicated that he was 100% certain of his identification, and placed his initials on the back of the photo as did Detective Anderson and Sergeant Sievers, who was also present. (T. 16-17). The photo spread was then introduced into evidence. (T. 14-15).
Detective Anderson then proceeded to describe in detail the procedures used to conduct each of the lineups in which Taylor participated on July 3, 1985. Anderson described the two lineups which were viewed by Bailey: The lineups consisted of five black males, one of whom was Rodolfo Taylor, all dressed in blue coveralls. (T. 18). Taylor was given his choice of a number and the remaining numbers were distributed to the four stand-ins. (T. 19). Each stand-in...
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