Walker v. Hood

• Decision Date: 09 February 1988
• Docket Number: No. 86 Civ. 3347 (RJW).,86 Civ. 3347 (RJW).
• Citation: 679 F. Supp. 372
• Parties: Charles WALKER, Petitioner, v. David HOOD, Superintendent, Otisville Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Respondents.
• Court: U.S. District Court — Southern District of New York

679 F. Supp. 372

Charles WALKER, Petitioner, v. David HOOD, Superintendent, Otisville Correctional Facility, and Robert Abrams, Attorney General of the State of New York, Respondents.

No. 86 Civ. 3347 (RJW).

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

February 9, 1988.

Charles Walker, pro se.

Robert Abrams, Atty. Gen. of the State of N.Y., New York City, for respondents; Eugene Murphy, Asst. Atty. Gen., New York City, of counsel.

OPINION

ROBERT J. WARD, District Judge.

Charles Walker petitions this Court pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By order dated February 6, 1987, the petition was referred to the Honorable James C. Francis, IV, United States Magistrate, pursuant to 28 U.S.C. § 636(b)(1) and Rule 4 of the Local Rules for Proceedings Before Magistrates, to hear and report. On August 26, 1987, Magistrate Francis filed his Report and Recommendation (the "Report"), in which he recommended that the petition be dismissed in its entirety, because it contained both exhausted and unexhausted claims.

Petitioner filed his objections to the Report on September 9, 1987, and respondents responded to petitioner's objections by letter filed with the Court on September 25, 1987. For the reasons hereinafter stated, the Court concludes that it is appropriate to consider the merits of the three grounds for relief set forth in the petition. The Court has considered petitioner's contentions de novo, and determined that petitioner's first ground warrants the relief requested. Accordingly, petitioner's writ is granted and respondents are ordered to provide petitioner with a new trial.

BACKGROUND

Petitioner Walker challenges a jury verdict in the Supreme Court of New York, New York County (Williams, J.). Trial commenced on November 11, 1982. Walker was convicted of two counts of robbery in the first degree, attempted robbery in the first degree, attempted murder in the second degree, criminal possession of a weapon in the second degree and grand larceny in the second degree. He was sentenced January 17, 1983 to a prison term of four to eight years on the first degree robbery count to run consecutively to the following concurrent prison sentences: two to six years for attempted first degree robbery, four to eight years for attempted murder, two to six years for criminal possession of a weapon and one to three years for grand larceny.¹ The Appellate Division, First Department, affirmed the conviction without opinion on May 28, 1985. The New York Court of Appeals on August 28, 1985 denied Walker's request for leave to appeal.

Walker's habeas corpus petition sets forth three grounds for relief. First, Walker asserts that the trial judge, in misapplying the New York State Notice of Alibi Statute and instructing the jury to disregard Walker's alibi testimony, violated Walker's right to testify on his own behalf. Second, Walker argues that two photographic show-ups conducted at trial violated his right to due process. Finally, Walker contends that the admission of an appointment book to impeach him on a collateral matter was highly prejudicial, depriving him of his due process right to a fair trial.

In his Memorandum of Law, filed May 12, 1987, Walker made additional arguments challenging his conviction. Walker argued that the erroneous exclusion of transcripts from the "911" police emergency calls following the crime denied him his right to confront the evidence against him and to present exculpatory evidence to the jury. In addition, Walker claimed that the suggestiveness of the victim's identification of him at the crime scene, and the refusal of the trial judge to hold a Wade hearing to determine the extent of the suggestiveness, violated his right to due process.

DISCUSSION

To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record. See Rule 72, Fed.R.Civ.P., Notes of Advisory Committee on Rules (citing Campbell v. United States District Court, 501 F.2d 196, 206 (9th Cir.), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974)). However, when timely objection has been made to a portion or portions of a magistrate's report, the district judge must "make a de novo determination ... of any portion of the magistrate's disposition to which specific written objection has been made." Rule 72(b), Fed.R.Civ.P.; see also 28 U.S.C. § 636(b)(1). The judge may then accept, reject, or modify, in whole or in part, the magistrate's proposed findings and recommendations. 28 U.S.C. § 636(b)(1).

A district court's obligation to make a de novo determination of properly contested portions of a magistrate's report does not require that the judge conduct a de novo hearing on the matter. United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412-13, 65 L.Ed.2d 424 (1980). It is sufficient that the district court "arrive at its own, independent conclusion about those portions of the magistrate's report to which objection is made...." Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir.1983). To this end, the court must "exercise ... sound judicial discretion with respect to whether reliance should be placed on the magistrate's findings." American Express Int'l Banking Corp. v. Sabet, 512 F.Supp. 472, 473 (S.D.N.Y.1981), aff'd mem., 697 F.2d 287 (2d Cir.), cert. denied, 459 U.S. 858, 103 S.Ct. 129, 74 L.Ed.2d 111 (1982).

1. Exhaustion

Applications for habeas corpus relief may not be addressed on the merits by a federal court until the petitioner has exhausted available state court remedies. Duckworth v. Serrano, 454 U.S. 1, 3, 102 S.Ct. 18, 19, 70 L.Ed.2d 1 (1981).² "Mixed" petitions, those containing both exhausted and unexhausted claims, must be dismissed in their entirety. Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198, 1205, 71 L.Ed.2d 379 (1982); Holland v. Scully, 797 F.2d 57, 64 (2d Cir.), cert. denied, ___ U.S. ___, 107 S.Ct. 237, 93 L.Ed.2d 162 (1986).

In concluding that Walker had presented a mixed petition, Magistrate Francis considered not only the three grounds set forth in the petition itself, but also the additional arguments that Walker presented in his Memorandum of Law, filed May 12, 1987. The Magistrate expressly determined that Walker's three original grounds for relief, those set forth in his petition, were exhausted, but found that the two additional arguments were not exhausted. Report at 4.

The Magistrate certainly acted appropriately in construing Walker's pleadings liberally in light of his pro se status, see Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972) (per curiam), and in considering all arguments raised, even if technically, they may not have been properly pleaded. In his Objections to the Report, however, Walker argues that he had not intended to add additional grounds for relief in his Memorandum of Law, but merely intended to bolster his three original grounds by presenting new supporting arguments. The rule requiring liberal construction of a pro se litigant's pleadings should not be applied to Walker's disadvantage. Accordingly, this Court will consider here only petitioner's three original grounds.³ The new arguments raised in petitioner's Memorandum of Law will be considered to the extent they shed light on the grounds for relief properly before the Court.

Because respondents did not object to Magistrate Francis' determination that Walker's three original claims had been exhausted, and because there is no clear error on the face of the record, this Court adopts Magistrate Francis' determination of the issue. Because all the claims before the Court have been exhausted, the Court concludes that the petition is properly before it, and now proceeds to a determination of the merits of the petition.

2. Petitioner's Right to Present his Alibi Testimony to the Jury

The Court of Appeals for the Second Circuit has unequivocally recognized the right of an accused to testify in his own defense and to present his version of events to the jury.⁴ This right is derived from the compulsory process clause of the Sixth Amendment and the due process requirements of the Fifth Amendment, applied to the states through the Fourteenth Amendment, and finds additional support in the Ninth Amendment.

Not to be deprived of liberty without due process of law under the Fifth Amendment includes the right to a fair adversary process, a part of which is the right to be present and to take the witness stand in one's own defense. The right to testify on one's own behalf is also derived from the compulsory process clause of the Sixth Amendment. That Amendment, directed generally to the rights of the accused, includes an accused's right to call "witnesses in his favor." Logically included within the right to call any witness is the accused's right to testify himself should he possess evidence in favor of the defense. That this unmentioned right is a constitutional one is further fortified by the rule of construction contained in the Ninth Amendment.... The full scope of the specific guarantees is not limited by the text, but embraces their purpose to provide broad freedom from all "arbitrary impositions and purposeless restraints."

United States v. Bifield, 702 F.2d 342, 349 (2d Cir.) (citations omitted), cert. denied, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983). See also United States v. Bentvena, 319 F.2d 916, 943 (2d Cir.) (the "privilege" to testify in one's own behalf has importance similar to the right to be present at one's trial and to present a defense), cert. denied, 375 U.S. 940, 84 S.Ct. 345, 11 L.Ed.2d 271 (1963).

The accused's right to testify is implicated not only where he is totally precluded from taking the stand, e.g., United States v. Butts, 630 F.Supp. 1145, 1148 (D.Me.1986); see also United States v. Walker, 772 F.2d 1172, 1178 & n. 10 (5th Cir.1985) (abuse of discretion for...