Opinion
9:98-CV-0607 (NAM)(GLS)
February 26, 2001
FOR THE PETITIONER: SANDY GLOVER, Petitioner, Pro Se, Elmira Correctional Facility, Elmira, NY.
FOR THE RESPONDENT: HON. ELIOT SPITZER, OF COUNSEL: SENTA B. SIUDA, ESQ., Office of Attorney General, Syracuse, NY.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner, pro se Sandy Glover ("Glover") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on April 14, 1998. On May 21, 1998, the Hon. Rosemary S. Pooler, then-District Judge, issued an order directing Glover to file a supplemental affidavit so that the court could determine whether this matter could proceed in this District. Docket No. 3. This affidavit was filed, Docket No. 4, and this court then issued an order pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254, directing, inter alia, the Office of the Attorney General for the State of New York ("Attorney General") to file a response. Docket No. 5. The Attorney General filed an answer and memorandum of law requesting dismissal of the petition, Docket Nos. 12 and 13, to which Glover filed a reply and addendum. Docket Nos. 17 and 18. Since Glover's reply papers contained new legal arguments, respondent filed a sur-reply, in the form of a letter, addressing these new arguments. Docket No. 20.
II. Discussion
A. State Court Proceedings
The testimony at trial revealed that a number of individuals met Glover in his apartment during the early morning hours of April 19, 1991, to finalize plans for a robbery at an apartment on Catherine Street in the City of Utica ("Catherine Street Apartment"). Trial Tr. of Anthony Britt ("Britt") and Glover (3/3/92) ("Tr.") at P. 283-84. In order to prevent area competition with his drug trafficking, Glover planned to rob the occupants of the Catherine Street Apartment of drugs, money and other property. Id. at 286. Soon after this meeting, a number of individuals, including Glover, left the apartment to commit the crime. Id. at 287-97. Glover drove his car with four other individuals to the site of the robbery while Henry Oliver, Jr., and two passengers followed Glover in another car, armed with two shotguns. Id. at 621-24. Standish Dublin ("Dublin") was in the Catherine Street Apartment at the time of the robbery, and observed three individuals break into the apartment, one of whom was carrying a shotgun. Id. at 192. She then heard a gunshot, and noticed that James Basnight ("Basnight") had been shot in the stomach. Id. at 193-96.
Respondent provided various state-court records along with his response.
Upon returning to his apartment, Glover asked Anthony Green ("Green") to clean the shotguns that had been used in the crime. Id. at 645. The money, drugs and other items stolen from the apartment were then divided up among the participants. Id. at 656-59. The police eventually recovered a shotgun used in the robbery, Id. at 670-71, and Glover and the other participants were subsequently arrested.
On May 31, 1991, an Oneida County Grand Jury charged Glover with second degree felony-murder, first degree robbery and fourth degree conspiracy. See Indictment No. 91-272. After a jury trial, Glover and co-defendant Britt were found guilty on all counts. Id. at 1698-1700. The Hon. John T. Buckley sentenced Glover to an indeterminate sentence of twenty-five years to life imprisonment on the second degree murder conviction with lesser, concurrent sentences on the other convictions. Sentencing Tr. (5/15/92) at 4-6. Glover appealed to the Appellate Division, Fourth Department which unanimously affirmed. People v. Glover, 206 A.D.2d 826 (4th Dep't 1994). The Court of Appeals denied Glover leave to appeal. People v. Glover, 85 N.Y.2d 973 (1995).
Glover filed his petition on April 14, 1998. This petition does not clearly indicate the Grounds in support of the application. Instead, on unnumbered P. 8, he lists "points" numbered one through six. The next two pages list four additional "points," also numbered one through four, as well as five additional items numbered "VI" through "X." Pet at unnumbered PP. 9-10. In responding to the petition, respondent categorized the above into three general claims: (i) the prosecution failed to prove the predicate felony required for the felony-murder conviction; (ii) the trial court abused its discretion in denying Glover's motion for severance; and, (iii) Judge Buckley committed numerous errors during the course of the criminal trial. In reply, Glover did not object to the respondent's characterization of his claims, however, Glover noted that respondent failed to address his claim of ineffective assistance. Docket No. 17. At the request of the court, the respondent filed a supplemental response which addressed this claim.
B. Claims in Petition
1. Proof of Predicate Felony
Two theories are proposed by Glover in support of this argument. He claims that the prosecution failed to prove: (a) robbery as a predicate felony to the felony-murder conviction; and, (b) the shotgun was operable.
"A person commits felony-murder when he commits or attempts to commit a predicate felony 'and, in the course of and in furtherance of such crime or of immediate flight therefrom,' he or another participant 'causes the death of a person' other than one of the participants (Penal Law § 125.25[3])." People v. Parks, 95 N.Y.2d 811, 814 (2000). Robbery is one of the enumerated acts which can serve as a predicate for felony-murder. Id.
"[I]n felony-murder the underlying felony is not so much an element of the crime but instead functions as a replacement for the mens rea or intent necessary for common-law murder." People v. Berzups, 49 N.Y.2d 417 (1980).
After a conviction, courts are to view the evidence in the light most favorable to the prosecution. See People v. Contes, 60 N.Y.2d 620 (1983); Davis v. McLaughlin, 122 F. Supp.2d 437, 441 n. 5 (S.D.N.Y. 2000) (citation omitted). The evidence demonstrated that Glover planned the robbery at the Catherine Street Apartment, and drove some of the participants to the crime scene. Tr. at 286, 621-24. This conduct is sufficient to sustain a conviction for first degree robbery. People v. Morton, 135 A.D.2d 1024 (3rd Dep't 1987) (affirming conviction for first degree robbery where defendant drove other participants to scene of robbery), leave to appeal denied, 71 N.Y.2d 1030 (1988). Any contention that property was not forcibly stolen from the Catherine Street Apartment is also without merit, as the testimony demonstrated that money, drugs and other property were stolen. Id. at 656-59. Additionally, Basnight, who was not a participant in the crime, was shot during this robbery, Id. at 193-96, and died as a direct result of the gunshot wound to his abdomen. Id. at 1019-21.
This statute reads, in part:
A person is guilty of robbery in the first degree when he forcibly steals property and when, in the course of the commission of the crime or of immediate flight therefrom, he or another participant in the crime:
1. Causes serious physical injury to any person who is not a participant in the crime; or
2. Is armed with a deadly weapon; or
3. Uses or threatens the immediate use of a dangerous instrument . . . .
N Y Penal L. § 160.15.
Furthermore, the testimony established that the shotgun was operable at the time of the robbery. Dublin was in the Catherine Street Apartment at the time of the robbery and testified that she heard a gunshot, and noticed that Basnight had been shot in the stomach. Id. at 193-96.
In light of the foregoing, Glover's claims that the prosecution failed to prove that: (a) a robbery took place on the night of the murder; or, (b) the shotgun was operational are without merit.
2. Failure to Grant Motion to Sever
Glover also contends that the trial court improperly denied his request to sever his trial from his co-defendant, Britt.
The decision whether to grant a severance is "committed to the sound discretion of the trial judge." United States v. Casamento, 887 F.2d 1141, 1149 (2d Cir. 1989), cert. denied, 493 U.S. 1081 (1990); People v. Mahboubian, 74 N.Y.2d 174 (1989). A defendant seeking to overturn a denial of a severance motion must show that he was so severely prejudiced by the joinder as to have been denied a fair trial, "'not that he might have had a better chance for acquittal at a separate trial.'" United States v. Burke, 700 F.2d 70, 83 (2d Cir.) (quoting United States v. Rucker, 586 F.2d 899, 902 (2d Cir.), cert. denied, 464 U.S. 816 (1983)); Roberts v. Berry, 1988 WL 138251, at *3 (E.D.N.Y. Dec. 19, 1988) (court may grant habeas relief on claim based upon failure to sever trial from co-defendant only where petitioner establishes he was deprived of a fundamentally fair trial).
Glover appears to argue that Judge Buckley was required to sever the trial because the jurors would find him guilty due to his association with co-defendant Britt, who actually shot the victim. Glover states that the probability that he would have been convicted was "remote" had he been tried separately. Pet. at unnumbered P.8.
Severance is required only where the core of each defense is in "irreconcilable conflict" with the other and where there is a significant danger that the conflict alone would lead the jury to infer a defendant's guilt. People v. Cardwell, 78 N.Y.2d 996, 997-98 (1991) (citation omitted). Moreover, where proof against the defendants is supplied by the same evidence, only the most cogent reasons warrant a severance. People v. Bornholdt, 33 N.Y.2d 75, 87 (1973), cert. denied sub nom. Victory v. New York, 416 U.S. 905 (1974), see also, United States v. Cervone, 907 F.2d 332, 341 (2d Cir. 1990) (prejudice resulting from denial of motion to sever must be so substantial as to amount to a miscarriage of justice.).
Glover has failed to articulate any cogent reason in support of his contention that the trial court erred by failing to sever his trial from co-defendant Britt. Their defenses were not "in irreconcilable conflict", and there was ample evidence at trial that implicated Glover in the crime without regard to Britt. Additionally, because the two were charged with fourth degree conspiracy, Judge Buckley's decision to try the two together was entirely reasonable. Since no evidence has been presented that indicates that severance was required, the court recommends that this theory for relief be denied.
3. Trial Court Rulings
Glover has asserted numerous errors on the part of the trial court that he claims warrants the granting of his petition, which this court addresses seriatim.
A. Jury Selection
Glover contends that Judge Buckley committed error by "improperly limit[ing Glover's] jury selection." Docket No. 1 at unnumbered P. 9. However, Glover has failed to provide any facts in support of this claim or otherwise identify the legal basis for this argument.
A trial court has broad discretion to restrict the scope of voir dire by counsel. People v. Jean, 75 N.Y.2d 744, 745 (1989); U.S. v. Tutino, 883 F.2d 1125 (2nd Cir.), cert. denied, 493 U.S. 1081 (1990). Glover has failed to articulate any legal or factual basis upon which this court could find the trial court abused its discretion during the course of the voir dire. Accordingly, this court finds that Glover's application cannot be granted on this theory. See e.g., U.S. v. Taylor, 562 F.2d 1345, 1355 (2nd Cir), cert. denied sub nom. Salley v. U.S., 432 U.S. 909 (1977) (affirming conviction where trial court did not abuse discretion by limitations placed on voir dire).
B. Right to Confront Prosecution Witness
Glover claims that "the trial court improperly limited his right of confrontation against a key prosecution witness." Pet. at unnumbered P. 8. However, he has not provided any factual allegations in support of this claim, and does not specify to which witness this claim refers.
To the extent this claim is based upon limitations imposed on the cross-examination of a prosecution witness, the court notes that a trial court's discretion in limiting cross-examination will not be reversed unless there has been a "clear abuse of discretion coupled with a showing of prejudice" to the party. Gomez v. LeFevre, 1988 WL 88444, at *6 (N.D.N.Y. Aug. 19, 1988) (McAvoy, J.) (internal quotations and citation omitted), aff'd, 880 F.2d 1318 (2nd Cir. 1989). Glover has failed to establish either an abuse of discretion on the part of Judge Buckley, or any prejudice sustained by Glover concerning the cross-examination of any prosecution witness.
Moreover, any claim based upon an allegedly erroneous evidentiary ruling of Judge Buckley must also fail. "On a habeas petition, the federal court is, of course, limited to a determination of whether the challenged ruling involved error of constitutional magnitude." Roberts v. Scully, 875 F. Supp. 182, 188 (S.D.N.Y.) (citation omitted), aff'd, 71 F.3d 406 (2nd Cir. 1995). Evidentiary rulings are left to the discretion of the trial court. Rashid v. Kuhlman, 2000 WL 1855114, at *13 (S.D.N.Y. Dec. 19, 2000) (citations omitted). A petitioner contending that the trial court wrongfully excluded evidence bears the "heavy burden" of establishing that the exclusion violated an identifiable constitutional right. Roberts, 875 F. Supp. at 189 (citation omitted). No such evidence has been presented by Glover.
On appeal, Glover argued that he was entitled to impeach a government witness by playing for the jury a video tape of a robbery at a Utica bank committed by this witness.
Moreover, only the introduction of improper evidence that is "so extremely unfair that its admission violates fundamental conceptions of justice" is reviewable by a habeas court. Rashid, 2000 WL 1855114, at *13 (internal quotation and citation omitted).
Since Glover has failed to provide any evidence that his constitutional rights were violated with respect to the manner in which defense counsel was permitted to conduct his cross-examination, or by Judge Buckley's failure to allow certain evidence requested by him to be presented in his defense, the court recommends that his petition be denied as to these claims.
C. Missing Witness Charge
Glover also contends that the trial court improperly failed to provide the jury with a missing witness charge, although he offers no legal argument in support of this claim.
A missing witness charge allows the jury to draw an adverse inference that the testimony of uncalled witnesses would have been unfavorable to the party that declined to call them. United States v. Torres, 845 F.2d 1165, 1169 (2d Cir. 1988). The decision to give such a charge rests within the discretion of the trial court. Sagendorf-Teal v. County of Rennselaer, 100 F.3d 270, 275 (2nd Cir. 1996) (citation omitted). "A trial court's failure to deliver a requested missing witness charge, like any jury charge, does not raise a constitutional issue and cannot serve as the basis for federal habeas relief unless the failure 'so infected the entire trial that the resulting conviction violated due process.'" Rivera v. Keane, 1999 WL 816178, at *5 (S.D.N.Y. Oct. 13, 1999) (quoting Henderson v. Kibbe, 431 U.S. 145, 154 (1977)) (other citations omitted). As the Rivera court noted:
"[D]ecisions in this area will rarely support reversal or habeas relief since reviewing courts recognize 'the aura of gamesmanship that frequently accompanies requests for a missing witness charge as to which the trial judge will have a surer sense' than any reviewing court." Malik v. Kelly, No. 97 CV 4543, 1999 WL 390604, at *7 (E.D.N.Y. Apr. 6, 1999) (quoting United States v. Torres, 845 F.2d 1165, 1171 (2d Cir. 1988) (internal quotation omitted)).
Glover has failed to establish that the trial court's refusal to provide the jury with a missing witness charge was an error that violated his right to due process. Therefore, this theory does not afford him a basis for relief.
D. Supplemental Instructions
Glover next argues that his conviction "must be reversed because the trial court gave supplemental instructions to the jury, over objections, which were simplistic, misleading and legally erroneous." Docket No. 1 at unnumbered P. 8. Specifically, Glover contends that Judge Buckley's response to several questions posed by the jury were "the functional equivalent of directing a guilty verdict against the petitioner and interfered with the jurors' independent judgment." Docket No. 18 at 2-3. Glover continues by arguing that the jury necessarily relied on the trial judge to assist them in their deliberations concerning his guilt, rendering their verdict "a nullity." Id. at 4.
In responding to a juror's question, the court "must give such requested information or instruction as the court deems proper." McShall v. Henderson, 526 F. Supp. 158, 161 (S.D.N.Y. 1981) (quoting New York's Criminal Procedure Law § 310.30). The trial judge is afforded a "broad range of discretion . . . in responding to the request." Moore v. Scully, 956 F. Supp. 1139, 1146 (S.D.N Y 1997) (citations omitted). As the Second Circuit has held:
Once the judge has made an accurate and correct charge, the extent of its amplification must rest largely in his discretion. The trial judge, in the light of the whole trial and with the jury before him, may feel that to repeat the same words would make them no more clear, and to indulge in variations of statement might well confuse. How far any charge on technical questions of law is really understood by those of lay background would be difficult to ascertain, but it is certainly more evident in the living scene than in a cold record.
United States v. Sacco, 436 F.2d 780, 783 (2d Cir. 1971).
This court, after reviewing the questions posed by the jury cited by Glover and Judge Buckley's responses to them, finds that his responses were reasonable and did not invade the province of the jury, or otherwise call into question the integrity of the jury's verdict. Therefore, the court recommends the denial of the petition on this theory.
E. Admission of Drugs into Evidence
Glover contends that "the admission of large quantities of drugs into evidence over objection denied Glover a fair trial because they had a highly prejudicial effect but no relevance to the crime charged." Docket No. 1 at unnumbered P. 8. No supporting facts or legal argument are offered by Glover in support of this theory.
The testimony revealed that the motive behind the conspiracy and robbery that resulted in the death of Basnight was to prevent a rival drug dealer from reducing the profits shared by Glover in the drug trade. Tr. at 286. The drugs admitted into evidence established motive for the robbery, and as such, were properly admitted into evidence. U.S. v. Pacheco, 902 F. Supp. 469, 474 (S.D.N.Y. 1995) ("it is generally proper to admit evidence that proves motive to commit a crime") (citing United States v. Willoughby, 860 F.2d 15, 24 (2d Cir. 1988)) (other citation omitted)). Thus, this claim must be denied.
F. Charge Relating to Conspiracy
In this claim, which is also not supported by any factual or legal argument, Glover appears to contend that the proof at trial did not support a conviction for both criminal conspiracy and accessory to the robbery which resulted in the felony-murder conviction.
The crime of conspiracy is an offense separate from the crime that is the object of the conspiracy. Therefore, "accessorial conduct may not be equated with mere membership in a conspiracy and the State may not rely solely on the latter to prove guilt of the substantive offense." People v. McGee, 49 N.Y.2d 48, 57-58 (1979), cert. denied sub nom. Waters v. New York, 446 U.S. 942 (1980).
There was testimony that demonstrated Glover was an accomplice to the robbery. He drove to the scene of the crime and directed other participants as to which doors they should enter during the robbery. Tr. at 622-24, 635. There was also independent evidence that Glover participated in a criminal conspiracy. For example, testimony revealed that Glover planned the robbery several days in advance. Id. at 1103-06. In light of the foregoing, the court finds no error on the part of Judge Buckley in permitting the jury to consider convictions on both of these counts in the indictment.
G. Accomplice Testimony
In this claim, Glover appears to contend that because the prosecution failed to advise the Grand Jury that accomplice testimony must be corroborated, his conviction must be overturned.
Judge Buckley considered and denied a motion by Glover's counsel to dismiss the indictment based upon claimed "legal insufficiencies." See Decision and Order of Judge Buckley (1/6/92) at ¶ 5; see also, Decision and Order of Judge Buckley (1/10/92) (finding that "sufficient legal evidence was presented to the Grand Jury to support the indictment").
An order denying a motion to dismiss an indictment on the ground of insufficiency of Grand Jury evidence is not reviewable upon an appeal from an ensuing judgment of conviction which is supported by legally sufficient trial evidence. People v. Widmer, 137 A.D.2d 929, 931 (3rd Dep't) (citations omitted), leave to appeal denied, 72 N.Y.2d 868 (1988). Moreover, the Second Circuit has held that because "federal grand jury rights are not cognizable on direct appeal where rendered harmless by a petit jury, similar claims concerning a state grand jury proceeding are a fortiori foreclosed in a collateral attack brought in a federal court." Lopez v. Rilely, 865 F.2d 30, 32 (2d Cir. 1989) (citing United States v. Mechanik, 475 U.S. 66, 70 (1986)); see also, Broome v. Coughlin, 871 F. Supp. 132, 135 (N.D.N.Y. 1994) (Kaplan, J., sitting by designation) (claims that evidence before the grand jury was insufficient to support indictment are not cognizable for habeas review).
Since any alleged errors committed before the Grand Jury were rendered harmless by the jury's verdict, the court recommends that this challenge to Glover's conviction be denied.
4. Ineffective Assistance of Counsel
Glover's final claim alleges ineffective assistance. He argues that his counsel's failure to request that the court "charge that Green was an accomplice as a matter of law or request that the jury be allowed to determine whether or not he was an accomplice as a matter of fact" demonstrates that his counsel's performance was objectively unreasonable. Docket No. 17 at 7. Glover also contends that counsel was required to object to Judge Buckley's "Falsus in Uno, Falsus in Omnibus" charge ("witness credibility charge"). Specifically, Glover contends that by stating that "a material fact is one which is necessary for conviction," Judge Buckley "removed any reasonable doubt which the jury could have entertained based on any such false testimony, and counsel's failure to object to this charge" prejudiced Glover because it "foreclosed Federal Habeas Corpus review" of this claim. Id. at 9. Finally, Glover argues that the reasonable doubt charge was constitutionally deficient because the trial court emphasized that the prosecution need only prove "every material allegation" in the indictment. He contends that this instruction diminished the People's burden of establishing defendant's guilt beyond a reasonable doubt as to every element of the crime charged. Id. at 10-17.
This instruction stated:
You may choose to believe all, part or none of the testimony of a particular witness. If you find that a witness willfully has given false testimony as to any material fact, on the basis that if he would lie about one thing, he would lie about another, you may disregard all or part of his testimony. A material fact is one which is necessary for conviction. However, this is just another factor, and you may accept so much of the testimony as you choose to believe and disregard the remainder.
Tr. at 1616-17 (emphasis added). Such an instruction "permits the jury to accept so much of a witness's testimony as it believes true and reject such part as it deems false." People v. Jackson, 65 N.Y.2d 265, 273 n. 7 (1985).
The Supreme Court has articulated a two-pronged test to determine whether a criminal defendant received effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 688-90, 694 (1984). To establish ineffective assistance, a habeas petitioner must show: (1) that counsel's representation fell below an objective standard of reasonableness measured by prevailing professional norms; and, (2) prejudice, i.e., that there is a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different. United States v. Gordon, 156 F.3d 376, 379 (2d Cir. 1998) (per curiam) (citing Strickland, 466 U.S. at 688-90); Brown v. Artuz, 124 F.3d 73, 79-80 (2nd Cir. 1997), cert. denied, 522 U.S. 1128 (1998); Mask v. McGinnis, 233 F.3d 132, 140 (2d Cir. 2000).
Trial counsel's failure to request an accomplice charge concerning Green was reasonable; the charges against Green in connection with this crime were ultimately dismissed. Docket No. 20 at P. 2. Glover does not articulate any theory as to why the jury would have found Glover to be less culpable had this charge been given, and has presented no evidence that, considering the totality of the evidence, the result of his trial would likely have been different had this charge been given. As noted above, testimony demonstrated that Glover not only planned the robbery, but also drove other participants to the crime scene and orchestrated the manner in which the other participants would enter the Catherine Street Apartment.
As to the witness credibility charge, Glover speculates that the instruction might have misled the jurors as to how to assess the credibility of the witness, and states his belief that there was "no way that a lay-jury could properly comprehend what a 'material fact' is." Docket No. 17 at 8. However, courts cannot grant habeas relief based upon unsubstantiated conclusions, opinions or speculation. Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (federal courts should not grant "habeas relief on the basis of little more than speculation with slight support"); Osinoiki v. Riley, 1990 WL 152540, at *3 (E.D.N.Y. Sept. 28, 1990) (denying petition for writ of habeas corpus requesting bail, where two of petitioner's bases for relief were based on "nothing more than rank speculation"); Jones v. O'Keefe, 2000 WL 1290595, at *5 (S.D.N.Y. Sept. 12, 2000) (same) (citations omitted). Moreover, as noted above, Judge Buckley ended this portion of the charge by reminding the jurors that they were free to "accept so much of the testimony as you choose to believe and disregard the remainder." Tr. at 1617. Glover has not established that by failing to object to this charge, his counsel acted in an objectively unreasonable manner, or that the result of his trial would likely have been different if his attorney objected to this charge.
Finally, as to the reasonable doubt charge, Id. at 1624-25, Glover's argument that this charge diminished the prosecution's burden of establishing his guilt beyond a reasonable doubt as to every element of the crime is without merit. The court has reviewed this charge and finds that, in its entirety, it was sufficiently clear and did not "dilute the presumption of innocence" to which defendant was entitled, particularly in light of the fact that this charge clearly instructed the jurors that Glover was presumed innocent until such time as the jurors were convinced of his guilt beyond a reasonable doubt, and that the burden of proof remained at all times with the prosecution. Id. at 1624; see U.S. v. Bifield, 702 F.2d 342, 351 (2nd Cir.) (where instructions as to reasonable doubt are sufficiently clear and do not dilute presumption of innocence, error in instruction is, at most, harmless), cert. denied, 461 U.S. 931 (1983). Moreover, the court finds unpersuasive, Glover's argument that a reasonable juror would not believe each element of the crimes charged to be "material," and the record is devoid of any request by the jurors for clarification as to the meaning of "material." Therefore, trial counsel did not act in an objectively unreasonable manner when he did not object to this charge, and Glover has failed to establish that the outcome of the trial would have been different even if counsel's conduct was objectively unreasonable. Accordingly, this court recommends that this Ground of the petition be denied.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that Glover's petition be DENIED and DISMISSED, and it is further
ORDERED, that the Clerk serve a copy of this Order and Report-Recommendation on the parties by regular mail, and it is further
ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings, who has agreed to make them available for any appellate review.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have TEN (10) DAYS within which to file written objections to the foregoing report-recommendation. Any objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.