Opinion
No. CV-03-6121 (CPS).
June 28, 2004
MEMORANDUM AND ORDER
Petitioner Melchion Eastman moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2254. Following a jury trial in February 1997, petitioner was convicted in New York state court of robbery in the second degree, aggravated unlicensed driving of a motor vehicle in the first degree, and two counts of possessing a loaded rifle or shotgun. Petitioner argues that the prosecution's knowing use of allegedly false material testimony violated his right to due process.
For the reasons set forth below, petitioner's motion is denied.
BACKGROUND
The following facts are derived from trial transcripts, the parties' briefs filed on direct appeal and the papers exchanged in connection with the present petition.
On February 22, 1996, at approximately 1:20 a.m., at the Gaseteria service station at 2235 Flatbush Avenue in Brooklyn, the attendant, Bola Akande ("Akande"), was about to enter the service station office when a small grayish-blue four-door car pulled up to the gas pump and honked. After speaking to the driver, as Akande turned to put gas into the car, the car pulled away and two men, one with a gun and one without, stood on either side of him. The man without the gun, whom Akande later described as an approximately six-foot tall African-American wearing a green jacket and with a small lock of long hair on the back of his head, demanded money from Akande. Akande gave the man without the gun a $20 bill from the last sale of gasoline and $38 was taken from Akande's pocket. Akande was then led into the service station office by the same individual while the man with the gun followed them closely. Inside the office, both men demanded that Akande open the safe. Akande explained that he could not open the safe. The men then attempted to open the safe but failed, warned Akande not to move or he would be killed, and left. After twenty minutes, Akande called 911 to report the robbery. Akande was told to remain at the Gaseteria until the police arrived.
At approximately 1:40 a.m., Officer Nicholas Davella, after hearing a radio report of a subsequent gas station robbery in the same vicinity, noticed a vehicle whose appearance and occupants matched the description in the radio report. To be more specific, Officer Davella noticed that three African-American males were in the vehicle, that the vehicle was a small four-door grayish-blue Toyota, and that the driver was wearing a greenish-colored jacket. As Officer Davella followed the car, it ran a red light, crashed into a parked car and all of the occupants fled on foot. Two of the occupants, including the driver wearing the green jacket, ran north and one occupant ran east. As Officer Davella followed the two individuals heading north in his patrol car, he put out a description of them over the police radio. The two individuals running north separated and Officer Davella ordered the closer of the two, the man with the greenish jacket, to stop. The man stopped and started running in the opposite direction. Officer Davella again ordered him to stop, come out from between two parked cars, and get down on the ground. The individual began to comply, Officer Davella began to exit his police vehicle, and the individual stood up and ran into the backyards of East 53rd Street. Approximately seven to ten police cars responded to that location and the officers began searching the backyards.
The fact that the radio report of a second robbery, approximately 20 minutes after the Gaseteria robbery, described the color of the vehicle and the occupants was revealed in defendant's cross-examination of Officer Davello, but the report itself was not admitted into evidence. (Tr. 306-308.) The indictment charged petitioner with both robberies, but the counts related to the second robbery were severed before trial and ultimately dismissed.
At trial, Officer Davella described the vehicle color as "light gray, grayish," "gray," "grayish," "very light blue," "very light blue [that] can be misconstrued as gray," and "light blue." (Tr. 206, 255-56, 307.)
At trial, Akande identified a photograph of the car that Officer Davella followed as the car he was about to gas up when he was attacked by the petitioner and the man with the gun.
Petitioner, wearing a green jacket, was found hiding in the backyards by Officer Joseph O'Brien at approximately 1:56 a.m. Officer O'Brien later described the petitioner as an African-American male with a "a knot of hair, big knot of hair on the back of his head." (Tr. 161.) A loaded .380 semi-automatic silver pistol was found on the ground where petitioner had stopped between the two parked cars when ordered to do so the second time by Officer Davella. In addition, a loaded Maverick shotgun was recovered from the front seat of the car and a loaded.22 semi-automatic rifle was found outside the driver's door.
At approximately 2:40 a.m., while riding with two officers to the arrest scene, Akande described the robbers. At the scene, Akande identified petitioner, still wearing the green jacket, as the unarmed robber who demanded money from him at the Gaseteria. Akande was then taken to the police station where he identified the silver pistol recovered from between the parked cars as the gun used during the robbery. Five days later, Akande identified the second man in the robbery, the man who held the gun, from a lineup at the police station.
While in a holding cell at the police station after his arrest, petitioner volunteered the name and home address of the individual who committed the robbery. Later that day, on the way to central booking, petitioner identified the building in which the individual lived and the windows that corresponded to his apartment. (Tr. 317-322.) A few days later, the police went to the apartment and picked up a man with the same name and took him to the precinct for a lineup, where he was identified by Akande as the man with the gun in the robbery at the Gaseteria. (Tr. 322-336.) This individual pled guilty before trial.
As a result of these events, petitioner was charged in Kings County with robbery in the first degree, robbery in the second degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, aggravated unlicensed operation of a motor vehicle in the first degree, and two counts of possessing a loaded rifle in violation of New York City Administrative Code § 10-131(h). See N.Y. Penal Law § 160.15; N.Y. Penal Law § 160.10; N.Y. Penal Law § 265.03; N.Y. Penal Law § 265.02; N.Y. Veh. Traf. Law § 511[a][ii].
Petitioner proceeded to trial, represented by Helen Wells, Esq. At trial, petitioner argued that Akande was mistaken and that petitioner was not involved in the robbery at the Gaseteria. Two defense witnesses testified that at the time of the Gaseteria robbery, petitioner was at an Amoco station where Dollar Van drivers, including petitioner, generally met after work. Specifically, Cedric Jackson testified that petitioner was at the Amoco station when he arrived at 11:00 p.m., and was still there when he left at 1:45 a.m. Jackson testified that around 1:40 a.m., a gray four-door Honda Civic with three men pulled up to the curb near the Amoco station and parked. The three men exited the Honda and the driver was talking with petitioner, who was wearing a green jacket, when Jackson left the Amoco station. Jackson also testified that petitioner had told him that he had arrived at the Amoco station driving a bluish Toyota Corolla that day, which remained at the Amoco station while Jackson was there.
Akande testified that the robbery occurred at 1:20 a.m.
Jackson testified that the Toyota was "bluish," "blue," "like a sky blue," "like a blue, sky blue, grayish," and that the paint was changing colors and noted that "you can still see it was sky blue, but you can see it's getting lighter, like the sun and acid rain eating away." (Tr. 447-48, 515-16.) Jackson also identified a picture of the vehicle chased by Officer Davella as the Toyota used by petitioner that day. (Tr. 519.)
Kevin Morris, a witness for the defense, testified that petitioner, whom he described as wearing a blue, green and black jacket, was at the Amoco station when he arrived at 11:15 p.m. and did not leave until 1:45 a.m. Morris testified that a small four-door gray Honda Civic with three men pulled up at the curb of the Amoco station at 1:40 p.m. The three men got out of the car and the one who was driving began talking with petitioner. Morris testified that at 1:45 a.m. petitioner and two men from the gray Honda got into a blue Toyota Corolla and drove off with petitioner in the driver's seat. On cross-examination, Morris testified that on the evening in question, petitioner had an "artistic haircut" with longer hair on the back crown of his head. (Tr. 663.) Morris also identified a picture of the vehicle followed by Officer Davella as the Toyota Corolla petitioner drove away from the Amoco that night.
Morris also described the car as "sky blue." (Tr. 623.)
On February 5, 1997, petitioner was convicted by a jury in the Supreme Court of New York, Kings County, of robbery in the second degree, aggravated unlicensed driving of a motor vehicle in the first degree, and two counts of possessing a loaded rifle or shotgun. On April 10, 1997, petitioner was sentenced to concurrent prison terms of four and a half to nine years for the robbery and to one year each for the unlicensed operation of a motor vehicle and for the firearms violation. Petitioner is currently on parole.
"A person is guilty of robbery in the second degree when he forcibly steals property and when . . . he is aided by another person actually present." N.Y. Penal Law § 160.10[1]. "A person is guilty of the offense of aggravated unlicensed operation of a motor vehicle in the first degree when such person . . . is operating a motor vehicle while such person has in effect ten or more suspensions, imposed on at least ten separate dates for failure to answer, appear or pay a fine." N.Y. Veh. Traf. Law § 511[3] [a] [ii]. New York City Administrative Code § 10-131(h) makes it "unlawful for any person to carry or possess a loaded rifle or shotgun in public within the city limits." NYC Code § 10-131(h). Violation of NYC Code § 10-131(h) is "a misdemeanor punishable by a fine of not more than one thousand dollars, or imprisonment not exceeding one year, or by both such fine and imprisonment." NYC Code § 10-131(h).
Petitioner, represented by Allen Fallek of the Legal Aid Society, Criminal Appeals Bureau, appealed his conviction on due process grounds. Specifically, petitioner argued that his conviction was obtained by the prosecution's knowing use of materially false testimony. Petitioner argued that Akande testified falsely when he said he provided a detailed description of the unarmed robber to the 911 operator, and that the trial court improperly precluded the defense from impeaching Akande's testimony with an audiotape of the 911 call. Petitioner further argued that the prosecutor relied upon this false testimony in summation to argue that Akande had furnished a pre-arrest description of petitioner.
Testimony Regarding the 911 Call
The following testimony was elicited from Akande during defendant's cross-examination:Q Good afternoon, Mr. Akande.
A Good afternoon.
Q Mr. Akande, I am going to take you back to February 22, 1996, the morning of the alleged robbery. Now, when the robbery took — when the alleged robbery took place, you testified that twenty minutes later, you called 911?
A Yes.
. . .
Q Now, at the time that you dialed 911, you did not give a description of the clothing that the alleged perpetrator had on, did you?
PROSECUTION: Objection. COURT: Overruled. WITNESS: Excuse me, again?
Q At the time that you dialed 911 —
COURT: Rephrase the question, Ms. Wells.
Q When you dialed 911, and you talked to someone on the other side, you did not provide — give a description of the clothes the perpetrators had on?
PROSECUTION: Objection.
Q Do you know what I mean by perpetrators?
A Yes, I do.
COURT: Sustained. Hold it. When they speak and I speak, everybody stops, okay. Sustained as to form.
Q Did you give a description of the clothes that the perpetrators had on?
PROSECUTION: Objection. COURT: I will allow it. WITNESS: Well, they asked me and I described how it all happened.
Q You described what, sir?
A How everything happened. I told them everything on the phone.
Q Did you give a description of the clothes?
A Yes, I did.
Q Did you give a description of the person or persons?
A I didn't, at that time.
Q And what clothes did you tell them on the 911 tape the perpetrators had on?
PROSECUTION: Objection, it calls for hearsay. COURT: It's what he said. I will allow it.
WITNESS: I told them — I don't describe everything that happened and they told me to hold on and they will get in touch with me.
Q Now, when you made the call to 911, what description of the clothes did you give?
A I said green jacket, light green jacket.
Q What did you give as to height?
A I said taller than me, about six feet. I said taller than me.
Q What description did you give as to complexion?
. . .
A I said he is a black man.
Q What did you give as to hair?
A I said when he was back, facing me, he has a funny hair, a small hair growth at the back of the head.
Q Could you repeat that, please?
A I said he has the artistic hairstyle at the back of the head, which is longer than the other hairs.
. . .
Q So, you told him that he had hair on the back of the head that was longer than the other kind of hair?
A Yes, that stood out.
Q That stood out?
A Yes, of the other hairs.
Q You gave that description of which one of the perpetrators?
A The one that took money from me, Melchion Eastman.
Q Would that be the tall one?
A The one in front of me, yes.
Q You gave an artistic hairstyle?
A Artistic hairstyle. He had hair at the back of his head, the way he bobbed his hair. It's longer at that point than other parts.
Q You saw the person's entire head that night?
A Yes. He was in front of me. I was following him. When I went inside the office, he was following me. I was able to see his head from behind.
. . .
Q When the officers showed up that hour later, you talked to the officers?
A Yes.
Q Did you give them, at that time, a description of the perpetrators?
PROSECUTION: Objection. WITNESS: Yes, I told them — COURT: Overruled. WITNESS: That was when with I was talking to them, I told them everything that
happened and I described what happened.
Q Now, when the two officers arrived at your station, did you give them a description of the two perpetrators?
A Immediately they came and said I should lock up the whole station so I can follow them to East 54th.
Q So you did not give them a description?
A I did inside the car. I had given a description inside the car.
Q You gave them a description inside the car?
A Yes.
Q And that was inside of the police car?
A Inside the police car.
(Tr. at 112-18, 126-27.)
When the cross-examination was finished, defense counsel moved to introduce into evidence an audiotape of the 911 call in order to impeach Akande's credibility since Akande did not in fact give a description of the perpetrators to the 911 operator. Defendant argued that the omission of a description of the perpetrators on the 911 tape was a prior inconsistent statement and should be admitted to impeach Akande's testimony.
Because it was unclear from the testimony if Akande was in fact responding to questions about what information he gave during the 911 call or what information he gave during the course of the evening to the police, the court agreed to allow the defendant to bring Akande back to re-examine his testimony regarding the 911 call and to confront him with the tape if his testimony was inconsistent with it. Because the 911 tape was hearsay, the court ruled that before it could be introduced into evidence for its truth, the defendant would have to establish its authenticity. Specifically, the court instructed defendant that Akande would have to be asked when and at what time he placed the call, what questions he was asked by the operator and what descriptions he gave. The court also ruled that the tape would be admissible to impeach Akande if he testified that he was asked for a description by the 911 operator, if he testified that he gave a description of the perpetrators to the 911 operator, or if he testified that he could not remember.
When Akande was recalled the next morning he testified that he was not asked by the 911 operator for a description of the perpetrators and that he did not give any:
Q When you spoke to the operator you told her that you had been robbed?
A Yes.
Q Did the operator ask you any questions?
A She asked me location, and when it occurred.
. . .
Q Did she ask you the complexion of the, the ethnic group of the person who robbed you?
A No.
Q Did she ask you the height of the person who robbed you?
A No.
Q Did she ask you anything about the clothing of the people or the person that robbed you?
A No.
Q Did she ask you what — whether it was a black man or a white man?
A No.
(Tr. at 380-88.) As a result, the audiotape of the 911 call was not admitted into evidence either for its truth or for purposes of impeachment.
At the close of the prosecution's case, the Assistant District Attorney expressed concern that the jury might infer, having learned that Akande did not give a description of the perpetrators to the 911 operator, that Officer Davella followed the car petitioner was driving based on racial profiling. During the cross-examination of Officer Davella defendant solicited information that Officer Davella received over the radio a description of a car containing occupants suspected to have committed a robbery that alerted him to the car driven by petitioner. However, officer Davella's testimony had not made clear that the radio report related to the subsequent robbery. Thus, the prosecution argued Akande's cross-examination testimony could raise doubts about Officer Davella's credibility by creating the inference that Akande's call to 911 did not provide sufficient information to follow petitioner's car.
PROSECUTION: I'm a little bit concerned about the testimony, the testimonial evidence that is provided by Mr. Akande. If we leave it the way it is, I'll be forced to argue on summation a point that did not happen, which is the fact that Mr. Akande, gave a description to the 911 operator. We know from listening to the tape, that he did not give a description to the 911 operator.
(Tr. 433.)
In order to resolve any confusion the prosecution asked that the audiotapes of the radio report, of Akande's 911 call and of the second 911 call reporting the subsequent robbery be admitted.
PROSECUTION: [P]erhaps the way to clear the this is let the whole truth come out by playing Mr. Akande's tape. Play the 911 tape made by the second victim of the robbery and play what central dispatcher gave over —
COURT: She will not agree to that. That's too prejudicial, unless you want to leave
out the second transmission regarding the second arrest.
DEFENSE: No, the tape is out, so let it be out. That's strongly objected to.
COURT: Now you don't want it?
DEFENSE: It would be strongly objected to.
COURT: You wanted it before, now you don't want it?
DEFENSE: No.
(Tr. at 433-35.) The court interpreted defense counsel's statements as a withdrawal of the motion to admit the tape of Akande's 911 call and denied the prosecution's request to admit the second 911 call and the police radio report. In later discussions with the court following the reading of Akande's testimony to the jury during deliberations, defense counsel argued that she had not previously withdrawn her application to have the 911 audiotape admitted into evidence, but the court disagreed with her characterization of the previous conversation. (Tr. at 875.)
In summation, defense counsel noted that the 911 operator had not asked Akande for a description of the robbers and argued that Akande gave no description of the robbers until after the defendant was already in custody. (Tr. at 722-24, 741.) Defense counsel then urged the jury to have Akande's testimony read back to them during deliberations. (Tr. at 724.) In response, the prosecutor argued that defense counsel had accused Akande of lying about the fact that he was robbed simply because the 911 operator did not ask him for a description of the perpetrators. (Tr. at 743-44.) The prosecutor also urged the jury to have Akande's testimony read back to them and stated that Akonde "does give the 911 operator a description of the people who robbed him." (Tr. at 744.)
Shortly after the jury began deliberations, it asked to have all of Akande's testimony regarding the 911 call and his description and identification of the defendant read back. (Tr. at 839.) Thereafter, the jury sent two notes at the same time, asking for Akande's testimony concerning his 911 call on both direct examination and cross. (Tr. at 910) In response, Akande's entire testimony was read to the jury. (Tr. at 911-24). When the jury subsequently sent notes announcing they were deadlocked, the court delivered an Allen charge and adjourned them for the night. The jury returned the next day and reached a verdict.
Post-Trial Procedural Developments
Defendant timely appealed, arguing that the court's ruling not allowing the defense to impeach Akande's testimony with the 911 audiotape was erroneous and required reversal. Defendant also argued that the prosecutor's statement that Akande gave the 911 operator a description of petitioner was false and violated his Fourteenth Amendment right under the United States Constitution, as discussed in Napue v. Illinois, 360 U.S. 264 (1959), not to be convicted on the basis of evidence known to be false by the prosecution.
On November 2, 2002, the Appellate Division, Second Department, affirmed petitioner's conviction, finding that he had "waived any argument with respect to his claim that the trial court precluded impeachment of the complaining witness' testimony with a tape of a call to the police emergency telephone line when he withdrew his application to have the entire tape played for the jury." People v. Eastman, 749 N.Y.S.2d 171 (App.Div. 2d Dep't 2002). The Appellate Division also found that the prosecutor's misconduct did not rise to the level of reversible error. Id. On March 4, 2003, the New York State Court of Appeals denied petitioner leave to appeal without opinion. People v. Eastman, 99 N.Y.2d 628 (2003).
The current petition for habeas relief was filed in December 2003, raising the same claims that were raised on direct appeal. Respondent argues that petitioner's claim as it pertains to the trial court's preclusion of the 911 audiotape is procedurally barred from federal habeas review because the Appellate Division denied the claim on an adequate and independent state procedural ground. With respect to petitioner's claim of prosecutorial misconduct, respondent argues it is without merit because the Appellate Division's rejection of this claim was not contrary to or an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States.
DISCUSSION
A state prisoner who has been placed on parole, as is the case here, is "in custody" within the meaning of 28 U.S.C. § 2254 so that a federal district court has jurisdiction to hear and determine his claim that his sentence was imposed in violation of the United States Constitution. Harned v. Henderson, 588 F.2d 12, 13 (2d Cir. 1978) ("Parole is `custody' for purposes of federal habeas corpus."); see also Jones v. Cunningham, 371 U.S. 236, 242-243 (1963) ("custody and control of parole board involve[s] significant restraints on petitioner's liberty" sufficient to invoke writ of habeas corpus).
Before a federal court may grant a petitioner's application for a writ of habeas corpus, it must be clear that the petitioner has exhausted his state remedies either on direct appeal or through collateral attack of his conviction. See 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 119 S.Ct. 1728, 1731-32 (1999); Ex parte Royall, 117 U.S. 241 (1886); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994). It is undisputed that all of petitioner's claims are exhausted and properly before the Court for habeas review. In addition, the petition is in writing, signed, and verified, see 28 U.S.C. § 2242, and was timely filed, see 28 U.S.C. § 2244(d)(1).
With respect to the admissibility of the 911 tape habeas relief is not available because the state court's ruling on this claim rests on an adequate and independent ground. When a state court rejects a federal constitutional claim on an independent and adequate state law ground, including procedural default, a federal habeas court is barred from reaching the merits of the claim unless petitioner can show (1) good cause excusing the default and ensuing prejudice, or (2) the likelihood that failure to consider the claim will result in a fundamental miscarriage of justice. Harris v. Reed, 489 U.S. 255, 262 (1989); see also Coleman v. Thompson, 501 U.S. 722, 735 (1991); Flores v. Greiner, 2000 WL 1052054, *10 (E.D.N.Y. June 19, 2000). A procedural default only acts as a bar to consideration of a federal claim on habeas review if the last state court rendering a judgment in the case "clearly and expressly" states that its judgment rests on a state procedural bar. Coleman, 501 U.S. at 735. Failure to object at trial is an independent and adequate state procedural bar. See N.Y.C.P.L. § 470.05; see also Murray v. Carrier, 477 U.S. 478, 485-92, 497 (1986) (contemporaneous objection rule is adequate and independent state ground); Wainwright v. Sykes, 433 U.S. 72, 86, 90 (1977) (same); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (violation of New York's contemporaneous objection rule is adequate and independent state ground).
New York's contemporaneous objection rule states in pertinent part:
For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.
N.Y.C.P.L. § 470.05[2].
Here, the Second Department explicitly declined to address petitioner's contention that the trial court improperly precluded impeachment of Akande's testimony with the 911 audiotape on the ground that the contention was unpreserved for appellate review because petitioner's counsel withdrew the application to have the entire tape played for the jury. Petitioner argues with some force that in fact the application was not withdrawn. Even if the trial court and the Second Department misapplied the state contemporaneous objection statute, the error does not create a constitutional concern. In all events the inconsistency in Akande's testimony was readily apparent by comparing his statements regarding the 911 call on cross-examination and the next morning when the cross-examination was resumed — statements which were reviewed by the jury during deliberations so that any error was harmless.
In addition to arguing that preclusion of the 911 audiotape requires relief, petitioner argues that the prosecutor's use of Akande's testimony later retracted by the witness violated petitioner's due process right to a fair trial. The prosecutor's use in summation of the witness' first statement about describing petitioner to the 911 operator was obviously improper and a use of testimony which the prosecutor knew to be false. Yet, even the use of false testimony against a defendant does not amount to a violation of due process unless the evidence "is so extremely unfair that its admission violates fundamental conceptions of justice." Dowling v. United States, 493 U.S. 342, 352, (1990) (internal quotation marks omitted); see also United States v. Shih Wei Su, 335 F.3d 119, 126-27 (2d Cir. 2003). For the erroneous admission of prejudicial evidence to amount to a denial of due process, the item must have been "sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it." Dunnigan v. Keane, 137 F.3d 117, 126 (2d Cir. 1998) (quoting Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992)); see also Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (evidence must be "crucial, critical, highly significant"). The foolish errors of the prosecution here had no such significance.
In summation the prosecution said that Akande provided a description of the defendant to the 911 operator, knowing that in fact he did not. Both the prosecution and the defense in summation urged the jury to closely examine Akande's testimony. The jury's request to have Akande's testimony read to them twice weighs in favor of finding his testimony regarding the 911 call material. However, Akande's initial cross-examination testimony alone, in which he appears to state that he gave a description of the defendant to the 911 operator, is not sufficiently material "to provide the basis for conviction or to remove a reasonable doubt" because it was contradicted the following morning with testimony elicited by defense counsel clearly stating Akande did not give such information to the 911 operator. All of Akande's testimony regarding the 911 call was twice read to the jury during deliberations. More significant, during deliberations the jury was read Akande's testimony in which he said he gave a description of the defendant to the police officers on the way to the arrest scene. Accordingly, Akande's initial 911 testimony on cross-examination was not sufficiently material to provide the basis for petitioner's conviction, nor would the admission of the 911 audiotape create a reasonable doubt on the record regarding petitioner's guilt.
CONCLUSION
For the reasons stated above, petitioner's request for relief pursuant to 28 U.S.C. § 2254 is denied. Petitioner is denied a certificate of appealability because he has not made "a substantial showing of the denial of a constitutional right." Reyes v. Keane, 90 F.3d 676, 680 (2d Cir. 1996).
The Clerk is directed to furnish a filed copy of the within to all parties and to the magistrate judge.
SO ORDERED.