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rejecting claim that petitioner's exclusion from sidebar conference violated his constitutional rights because petitioner had not “proffered any evidence suggesting that his presence during this sidebar conference would have had any effect on the course of the trial”
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98 Civ. 0373 (LTS) (KNF)
May 4, 2001
OPINION AND ORDER
The Court has received Magistrate Judge Fox's Report and Recommendation dated November 27, 2000 (the "Report") which recommends that the Court deny Juan Pujols' petition for habeas corpus. On December 4, 2000, petitioner Pujols filed an objection to the Report.
In reviewing a report and recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636 (b)(1)(C). "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." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted). See also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (court may accept report if it is "not facially erroneous"). The Court is required to review de novo those portions of the Report and Recommendation to which objection is made. See id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
Petitioner Pujols' December 4, 2000 submission to the Court reads in relevant part as follows: "On December 2, 2000 I received the Report and Recommendation and objected to the report in it's [sic] entirety. Please accept this letter motion as my objection and I have served the Respondent with a copy of this letter." The letter contains no further elaboration of Petitioner Pujols' objection.
28 U.S.C. § 636 (b)(1)(C) provides: "[w]ithin ten days . . . any party may serve and file written objections to such proposed findings and recommendations." Petitioner's objection was filed timely, but consists merely of a vague, conclusory statement objecting the Report as whole. "Such a submission cannot be treated as an objection within the meaning of 28 U.S.C. § 636." Vargas v. Keane, No. 93 Civ. 7852, 1994 WL 693885, at *1 (S.D.N.Y. Dec. 12, 1994), aff'd, 86 F.3d 1273 (2d Cir.),cert. denied, 519 U.S. 895 (1996). When a petitioner makes only conclusory or general objections, the court reviews the report and recommendation for clear error. See Camardo v. General Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (court need not consider objections which are frivolous, conclusory, or general and constitute a rehashing of the same arguments and positions taken in original pleadings); Chambrier v. Leonardo, No. 90 Civ. 0173, 1991 WL 44838, at *1 (S.D.N.Y. Mar. 26, 1991) (restatement of allegations already before the court and assertion that valid constitutional claim exists insufficient to form specific objections); Schoolfield v. Dep't of Correction, No. 91 Civ. 1691, 1994 WL 119740, at *2 (S.D.N.Y. April 6, 1994) (objections stating that magistrate judge's decisions are wrong and unjust, and restating relief sought and facts upon which complaint grounded, are conclusory and do not form specific basis for not adopting report and recommendation); see also Fed.R.Civ.P. 72(b), Advisory Comm. Note (when no specific, written objections filed, "court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation").
Magistrate Judge Fox's well-reasoned opinion addresses thoroughly each of Petitioner's claims. The Court has carefully reviewed the Report and has determined that there is no clear error. The Court adopts the Report and Recommendation for the reasons stated therein. Accordingly, the petition is dismissed.
The petitioner may not appeal this order to the Court of Appeals, unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253 (c)(1). A certificate will be granted "only if the applicant has made a substantial showing of the denial of a constitutional right" 28 U.S.C. § 2253 (c)(2); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability). Having thoroughly considered the petition and the Report and Recommendation, the Court finds that the Petitioner will not be able to sustain this burden. Accordingly, the Court declines to issue a certificate of appealability.See Fed.R.App.P. 22(b). In addition, the Court certifies pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).
TO THE HONORABLE LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE I. INTRODUCTION
Before the Court is Juan Pujols' ("Pujols") pro se petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254 and respondent's answer objecting to the petition. For the reasons set forth below, I recommend that the petition be dismissed.
II. BACKGROUND
On April 2, 1989, Anna Sylvia Hernandez ("Hernandez") was shot at point-blank range in an upper Manhattan restaurant. Hernandez and Pujols had been in a relationship prior to the shooting. According to several witnesses, Pujols shot Hernandez, asked them if she was dead and walked out of the restaurant after being assured that Hernandez was dead. Hernandez was rushed to a hospital, where she remained for eleven weeks. She then spent four months in a rehabilitation center. The bullet, which penetrated Hernandez's lung and spine, left her paralyzed from the waist down. Pujols was arrested on April 3, 1989, after surrendering to the police. The next day, two witnesses viewed a lineup and each identified petitioner as the shooter. Those witnesses also identified Pujols as the shooter at his trial, as did Hernandez.
Pujols was convicted of Attempted Murder in the Second Degree in the New York State Supreme Court, New York County, on May 7, 1990. He was sentenced as a second felony offender to an indeterminate prison term of from twelve and one-half to twenty-five years. Thereafter, on April 17, 1991, Pujols made a motion pursuant to New York Criminal Procedure Law ("CPL") § 440.10, to vacate the judgment of conviction. In the motion, he claimed, among other things, that the prosecutor had violated New York State's Rosario rule by failing to provide defense counsel with a police "DD-5" report containing a statement of prosecution witness Reynaldo Almonte. In a written decision dated January 27, 1992, Justice Joan Sudolnik, the trial judge, denied Pujols's motion, finding, inter alia, that petitioner had "not met his burden of proving by a preponderance of the evidence that he did not have the report at trial." (Respondent's Exh. G at 4-5).
This rule, announced in People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, cert. denied, 368 U.S. 866, 82 S.Ct. 117 (1961), and later codified in CPL §§ 240.44 and 240.45, requires the State to turn over the prior recorded statements of their witnesses that relate to their direct trial testimony.
On June 29, 1993, the Appellate Division unanimously affirmed petitioner's conviction and the denial of his motion to vacate the judgment. See People v. Pujols, 194 A.D.2d 505, 599 N.Y.S.2d 568 (1st Dept. 1993). The court found that "[r]eview of the record indicates that the hearing court properly held that defendant did not meet his burden of proving by a preponderance of the evidence that Rosario material had not been turned over to him at trial." People v. Pujols, 194 A.D.2d at 505, 599 N.Y.S.2d at 569. The court also rejected Pujols' claim that he had been denied his right to be present at all material stages of the trial, because the trial judge and counsel, outside the presence of Pujols, had interviewed a juror who appeared to have dozed during the taking of testimony. The Appellate Division found that since the questioning of the juror had nothing to do with Pujols' guilt or lack of guilt, his absence from the conference with the juror "did not have a substantial effect on his opportunity to defend." Id. The court also rejected a claim by Pujols that his sentence was excessive. It determined that the trial judge had not abused her discretion when sentencing Pujols. Id.
On August 25, 1993, the New York Court of Appeals denied petitioner's application for leave to appeal. See People v. Pujols, 82 N.Y.2d 724, 602 N.Y.S.2d 822 (1993). By motion dated August 11, 1993, Pujols again sought to vacate thejudgment pursuant to CPL § 440.10. Pujols argued that the prosecutor had knowingly adduced false evidence at trial. Specifically, Pujols claimed that Hernandez had not been left paralyzed from the shooting, as she had testified at trial, and that several people had told petitioner so both before and after the trial. Justice Sudolnik denied petitioner's motion in a written decision dated October 12, 1993. (See Respondent's Exh. T). On October 25, 1993, Pujols applied to the Appellate Division for leave to appeal the trial judge's decision on his motion. The Appellate Division, on January 18, 1994, denied petitioner's application. (See Respondent's Exh. W).
By motion dated May 20, 1995, Pujols requested that his sentence be set aside pursuant to CPL § 440.20. Petitioner argued that his sentence should be altered because the trial judge had based her sentencing determination on false information about the victim's physical condition. In a written decision dated July 3, 1995, Justice Sudolnik denied petitioner's motion. On July 20, 1995, Pujols applied to the Appellate Division for leave to appeal Justice Sudolnik's decision and, on November 2, 1995, the Appellate Division denied petitioner's application. See Respondent's Exh. AC).
On December 12, 1995, Pujols petitioned the Appellate Division for a writ of error coram nobis, asserting that he had been denied effective assistance of appellate counsel. Pujols claimed that he had been prejudiced by counsel's failure to present the Rosario issue as a question of federal constitutional law. Furthermore, petitioner, for the first time, characterized the DD-5 report as Brady material. The Appellate Division denied petitioner's application for a writ of error coram nobis on May 14, 1996. By letter dated June 7, 1996, Pujols applied for leave to appeal the Appellate Division's decision to the New York Court of Appeals. On June 25, 1996, the New York Court of Appeals dismissed Pujols' application on the ground that the order sought to be appealed was not appealable. (See Respondent's Exh. A-H).
On December 13, 1996, Pujols submitted his fourth post-conviction motion, pursuant to CPL § 440.10(1)(h), asserting that the judgment had been obtained in violation of his state and federal constitutional rights. See Respondent's Exh. AI). In this motion, Pujols claimed the following: (1) the lineup conducted on April 4, 1989, had been conducted in an impermissibly suggestive manner and in the absence of counsel; and (2) an officer who had signed one of the police reports pertaining to Pujols' case had been subsequently convicted for evidence tampering. In a written decision dated February 24, 1997, Justice Sudolnik denied petitioner's motion. On February 28, 1997, Pujols applied to the Appellate Division for leave to appeal Justice Sudolnik's decision. On May 20, 1997, the Appellate Division denied petitioner's application.
On March 21, 1997, Pujols, for the second time, applied to the Appellate Division for a writ of error coram nobis, asserting that he was denied effective assistance of appellate counsel. This time, Pujols faulted his appellate counsel for: (1) not challenging the lineup as impermissibly suggestive; (2) not claiming that the lineup had been wrongly conducted in the absence of counsel; (3) not asserting that his right to testify in the grand jury had been violated; and (4) not raising any issue with respect to the police officer convicted for evidence tampering. On September 23, 1997, the Appellate Division denied petitioner's application in all respects.
Pujols now seeks a writ of habeas corpus from this court. Pujols presents the following five claims in his application for the writ: (1) he was denied his right to be present at a bench conference concerning a juror who had allegedly slept during the trial; (2) the sentence he received was excessive; (3) he was deprived of due process because at trial, the prosecutor relied on the perjured testimony of Hernandez; (4) the post-arrest lineup was impermissibly suggestive; and (5) he was deprived of his right to counsel at the lineup.
After filing his petition for a writ of habeas corpus, Pujols withdrew ground numbers one, seven, and eight. Therefore, the Court has not considered those claims in this writing.
III. DISCUSSION
A. Pujols' Right To Be Present At All Material Stages of the Trial
Pujols claims that he was denied his right to be present at all material stages of the trial when a juror disqualification inquiry was held in his absence. Just prior to the court's final instructions to the jury, defense counsel requested that one of the jurors be excused, claiming that she had been sleeping during a portion of the trial. The trial judge held a sidebar conference, with the juror and counsel present, but without Pujols. The court questioned the juror about whether she had been sleeping, noting that "from time to time you had your head down and your eyes closed." (T 591) The juror assured the court that she had heard all the testimony. (T 591-92) Both defense counsel and the prosecutor stated that they had no questions of the juror, at which point the juror left the courtroom. (T 592) Justice Sudolnik stated that she had watched the juror during the trial and had observed that, while at times her eyes had been closed or her head had been down, she had been awake at all times. (T 592) Therefore, the court found no basis for excusing the juror. (T 593) The prosecutor concurred, but defense counsel maintained his objection. (T 593)
"T" followed by a numeral is a reference to the relevant page of the trial transcript.
Pujols now maintains that this juror inquiry was a material element of the trial that concerned an issue "fraught with implications for [the juror's] ability to impartially assess the evidence and deliberate on Petitioner's fate." (Petitioner's Brief at 43). He argues that he would have been able to ask questions that his counsel or the court did not ask and that his contribution to the inquiry "might have persuaded the State Court to discharge the juror." (Id. at 44). As a result, Pujols contends, his constitutional right to be present at all material stages of his trial was violated.
Pujols' claim that the court's conduct violated his right to be present at all material stages is not supported by law. The constitutional right of a criminal defendant to be present at all material stages of a trial is rooted in the Sixth Amendment but is protected by the Due Process Clause of the Constitution in situations where the defendant is not actually confronting witnesses or evidence. See United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 1484 (1985). In Snyder v. Massachusetts, 291 U.S. 97, 105-106, 54 S.Ct. 330, 332 (1934), the Supreme Court explained that a criminal defendant has a due process right to be present at a proceeding "whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge." The Supreme Court elaborated that "the presence of a defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only."Snyder, 291 U.S. at 107-108, 54 S.Ct. at 333. Furthermore, the Supreme Court, in Gagnon, stated, "[t]he defense has no constitutional right to be present at every interaction between a judge and a juror. . . ."United States v. Gagnon, 470 U.S. at 526, 105 S.Ct. at 1484 (quotingRushen v. Spain, 464 U.S. 114, 125-126, 104 S.Ct. 453, 459, (1983)(Stevens, J., concurring in judgment)).
In this case, petitioner's presence during the sidebar conference regarding the juror was not required to ensure a fair and just hearing for petitioner, or a "reasonably substantial . . . opportunity [for petitioner] to defend against the charge." Snyder, 291 U.S. at 105-106, 54 S.Ct. at 332. Pujols was able to view the conduct of the juror at issue throughout the trial. He had the opportunity to consult with his attorney before the attorney attended the sidebar conference. His claim that his presence at the inquiry "might have persuaded the State Court to discharge the juror," is speculative and has no factual basis. Pujols has not proffered any evidence suggesting that his presence during this sidebar conference would have had any effect on the course of the trial. See Gagnon, 470 U.S. at 527, 105 S.Ct. at 1484-85; see also Kentucky v. Stincer, 482 U.S. 730, 746-747, 107 S.Ct. 2658, 2668 (1987). Since petitioner's trial was not "thwarted by his absence" from the proceeding at issue, petitioner has suffered no deprivation of due process. SeeSnyder, supra.
In light of the above, it is clear that petitioner does not have a constitutionally protected right to be present at every sidebar conference. His absence from the particular sidebar at issue does not violate due process.
B. Pujols' Claim That His Sentence Was Excessive
In the third ground of the petition, Pujols claims that the sentence imposed on him is excessive and, thus, constitutes cruel and unusual punishment. Petitioner explains that "in light of his responsible behavior towards his family and his minimal prior criminal history," his sentence was excessive. (Petitioner's Brief at 49). This claim fails on the merits. As noted by the Second Circuit, "[n]o federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Rather, "when a statute provides for punishment thought to be violative of the [Eighth] amendment the constitutionality of the statute itself must be attacked." United States v. Dawson, 400 F.2d 194, 200 (2d Cir. 1968).
In the present case, Pujols, a second felony offender (New York Penal Law § 70.06[1]) who stood convicted for the Class B Felony of Attempted Murder in the Second Degree, was sentenced to an indeterminate prison term of from twelve and one-half to twenty-five years. New York Penal Law §§ 70.06(3)(b), 70.06(4)(b). Petitioner received the maximum sentence permitted by statute. No attack is made by petitioner on the validity of the statute under which he was sentenced. Accordingly, the instant claim presents no federal constitutional issue for habeas corpus review and should be dismissed.
C. Due Process and Perjured Trial Testimony
In the fourth ground of his habeas corpus petition, Pujols claims that the prosecutor knowingly relied on the perjured testimony of Hernandez in order to obtain a conviction. Petitioner made the same claim at a post-conviction hearing that took place on September 15, 1993. Pujols moved to vacate the judgment entered against him pursuant to CPL § 440.10(1)(c), claiming that Hernandez's testimony regarding the nature of her injuries was false and known to the prosecutor to be false. Hernandez appeared before the court in a wheelchair and testified that she had no feeling below her chest and that she was unable to move her limbs or control her bladder and bowel movements. Pujols alleged that people told him prior to and immediately after the trial that Hernandez was seen working at her restaurant. In addition, petitioner submitted three affidavits from individuals who claim to have seen Hernandez "walking and dancing just after petitioner's trial without the assistance of any person or thing, e.g., a walker." (Respondent's Exh. T). In denying the motion, Justice Sudolnik stated that the information pertaining to Hernandez's physical condition could have been discovered before trial and could have been incorporated into Pujols' first post-judgment motion. (Respondent's Exh. T). Thus, Justice Sudolnik barred petitioner's knowing-use-of-perjury claim pursuant to CPL §§ 440.10(3)(a) and 440.10(3)(c) . Id. Pujols' subsequent application for leave to appeal was denied by the Appellate Division without an opinion. (Respondent's Exh. W).
CPL 440.10(3) states, in relevant part:
[T]he court may deny a motion to vacate a judgment when: (a) Although facts in support of the ground or issue raised upon the motion could with due diligence by the defendant have readily been made to appear on the record in a manner providing adequate basis for review of such ground or issue upon an appeal from the judgment, the defendant unjustifiably failed to adduce such matter prior to sentence and the ground or issue in question was not subsequently determined upon appeal. . . .
Since this issue was decided on adequate and independent state law grounds, it is barred from federal habeas review. Under the "adequate and independent state ground" doctrine, a federal court may not review a question of federal law decided by a state court if the state court's decision rested on a state law ground, be it substantive or procedural, that is independent of the federal question and adequate to support the judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 2553 (1991). This doctrine applies not only to direct review of state court judgments, but also to federal habeas corpus petitions. See id.; Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989);Wainwright v. Sykes, 433 U.S. 72, 81, 97 S.Ct. 2497, 2503 (1977). Recognizing that a reviewing court is often faced with ambiguities in ascertaining the bases for state court decisions, the Supreme Court established a conclusive presumption of federal jurisdiction unless the state court clearly and expressly states that its decision rests on independent state grounds. See Coleman v. Thompson, 501 U.S. at 733, 111 S.Ct. at 2556 (quoting Michigan v. Lone, 463 U.S. 1032, 1040-41, 103 S.Ct. 3469, 3476). Although the Long presumption arose in the context of direct review, it was extended to federal habeas cases inHarris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 1043 (1985). Therefore, in the habeas context, where a petitioner first presented his federal claims in state court, and the decision of the last state court to hear those claims "fairly appeared to rest primarily on resolution of those [federal] claims, or to be interwoven with those [federal] claims, and did not clearly and expressly rely on an independent and adequate state ground, a federal court may address the petition." Coleman v. Thompson, 501 U.S. at 735, 111 S.Ct. at 2557. However, as emphasized by the Supreme Court, the Hams presumption does not apply unless the state court decision "fairly appear[s] to rest primarily on federal law or to be interwoven with federal law." Id. Accordingly, if a federal court has no "good reason to question whether there is an independent and adequate state ground for the decision, . . . [t]here is little need for a conclusive presumption." Id. at 739, 2559.
The Harris presumption does not apply to this case. It does not "fairly appear" that the New York courts relied primarily on federal law in disposing of Pujols' claim. Rather, Justice Sudolnik referred solely to the applicable provisions of the CPL in denying the motion. The Appellate Division, First Department, affirmed Justice Sudolnik's decision without issuing an opinion, thereby creating the presumption that it adopted the determination on the same grounds. See YLST v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 2594 (1991). Accordingly, this claim is barred from federal habeas corpus review.
The Supreme Court has stated that "[i]n all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565. Pujols has not attempted to show cause for the default. In addition, a review of the record fails to show that a dismissal of this claim will result in a fundamental miscarriage of justice.
The trial record rebuts petitioner's assertion that the prosecutor knowingly relied on perjured testimony. A redacted set of Hernandez's medical records was received into evidence at petitioner's trial without objection. (T 371-373; People's Exh. 6). These records refer to Hernandez's inability to move her lower extremities, which were described as "flaccid" and devoid of feeling. (Respondent's Brief at 28). They also contain a physician's diagnosis of paraplegia. Id.
Thus, Pujols has not overcome the procedural default of his claim, and accordingly, the claim must be dismissed.
D. Pujols' Claims Regarding the Post-Arrest Lineup
Petitioner makes two claims concerning the post-arrest lineup identification proceeding: (1) it was impermissibly suggestive because a detective told a lineup viewer that petitioner would be in the lineup; and (2) it was conducted in the absence of counsel. These claims are identical to the claims presented in Pujols' fourth state court post-judgment motion, which sought to vacate the judgment pursuant to CPL § 410.10(1)(h). In deciding these two claims concerning the lineup, Justice Sudolnik found: (a) that the conduct of the lineup and the absence of counsel had been "fully explored" at a Wade hearing; (b) that sufficient facts appeared in the record to have allowed review on direct appeal; and (c) that petitioner failed unjustifiably to raise the issues on appeal. (Respondent's Exh. AJ). Accordingly, Justice Sudolnik barred those claims pursuant to CPL § 440.10(2)(c) . Pujols' subsequent application for leave to appeal was denied by the Appellate Division without an opinion. (See Respondent's Exh. AM). Therefore, it can be presumed that these claims were decided on adequate and independent state law grounds, and that petitioner is not entitled to have these claims considered during federal habeas corpus review. See YLST, 501 U.S. at 803, 111 S.Ct. at 2594.
A hearing held pursuant to United States v, Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967), determines whether pretrial procedures used by law enforcement officials to identify a defendant as the perpetrator of a crime were tainted.
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Pujols has not attempted to show cause for the procedural default. In addition, a review of the record fails to show that a dismissal of these claims will "result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565.
Pujols alleges that the lineup in which he was identified by Jose Gomez ("Gomez"), an eyewitness to the crime, was tainted because a detective told Gomez, just before the lineup occurred, that petitioner was in it. Pujols presents no Second Circuit case that supports the proposition that a substantial likelihood of irreparable misidentification exists merely because the police told a lineup viewer that the suspected perpetrator would be in the lineup. In fact, the Second Circuit has held just the opposite. See Hodge v. Henderson, 761 F. Supp. 993, 1007-1008 (S.D.N.Y. 1990) (telling witness that perpetrator would be in lineup did not create substantial likelihood of misidentification; "it is implicit in the viewing of a lineup that a suspect might appear. . . . [S]uch information does not predispose the viewer of the lineup to select any particular person. . . ."), aff'd 929 F.2d 61 (2d Cir. 1991).
Pujols' claim regarding the denial of counsel at the lineup is also meritless. The Sixth Amendment right to counsel attaches only "at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 1882 (1972). Under CPL § 100.05, a New York criminal action commences with the filing of an accusatory instrument, which includes a felony complaint. See Meadows v. Kuhlmann, 812 F.2d 72, 77 (2d Cir.), cert. denied, 482 U.S. 915 (1987). In this case, the lineup was conducted on April 4, 1989, one day before the felony complaint was filed. (Respondent's Exh. A at 4). Therefore, since adversarial judicial proceedings had not commenced until after the lineup in question had taken place, petitioner had no federal constitutional right to have counsel present.
IV. RECOMMENDATION
Based on the above, I recommend that Pujols' habeas corpus petition be dismissed. I also recommend that the court decline to issue a certificate of appealability pursuant to 28 U.S.C. § 2253 (c)(1)(A). Pujols has not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253 (c)(2).
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636 (b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, 40 Centre Street, Room 426, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Swain. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Hermann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
Respectfully submitted,
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(c) Upon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so. . . .