Opinion
02 CV 3776 (GBD) (RLE).
August 10, 2006
MEMORANDUM DECISION AND ORDER
Pro se petitioner Angel Romero seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction for burglary and attempted robbery in the first degree in New York State Supreme Court, Bronx County, on February 23, 1999. Romero was sentenced as a persistent violent felony offender to concurrent indeterminate terms of twenty years to life and sixteen years to life, respectively. Petitioner filed the instant application arguing that his conviction was against the weight of evidence and that his right to counsel was violated.
This matter was referred to Magistrate Judge Ronald L. Ellis for a report and recommendation ("Report"). Magistrate Judge Ellis issued a Report wherein he recommended that petitioner's writ of habeas corpus be denied. In his Report, Magistrate Judge Ellis advised the parties that failure to file timely objections to the Report will constitute a waiver of those objections. Petitioner filed a timely objection to the Report. Petitioner objects to Magistrate Judge Ellis's finding that, viewed in the light most favorable to the prosecution, a trier of fact could find the essential elements of burglary and attempted robbery beyond a reasonable doubt. Petitioner also objects to the magistrate judge's recommendation that the right to counsel claim should be dismissed based on Magistrate Judge Ellis's finding that the state court decision was not "contrary to, or invol[ing] an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.
When timely objection has been made to a magistrate judge's report, the district judge is required to "make a de novo determination . . . of any portion of the magistrate's disposition to which specific written objection has been made. . . ." Fed.R.Civ.P. 72(b) (2005); see also 28 U.S.C. § 636(b)(1)(C) (2005). The district judge is not required to conduct a de novo hearing on the matter. United States v. Raddatz, 447 U.S. 667, 676 (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. . . .'" Nelson v. Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985) (quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983)). Thus, the district court is obligated to "exercise . . . sound judicial discretion with respect to whether reliance should be placed on [the magistrate judge's] findings."American Express Int'l Banking Corp. v. Sabet, 512 F.Supp. 472, 473 (S.D.N.Y. 1981), aff'd, 697 F.2d 287 (2d Cir. 1982). The district judge may then accept, reject, or modify, in whole or in part, the findings or recommendations of the magistrate judge, receive further evidence, or recommit the matter to the magistrate judge with additional instructions. See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C).
The referring district judge may accept the portions of the magistrate judge's report and recommendation to which no specific written objections are made, provided there is no clear error on the face of the record. Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); see also Heisler v. Kralik, 981 F. Supp. 830, 835 (S.D.N.Y. 1997), aff'd 164 F.3d 618 (2d Cir. 1998). With respect to those portions of the Report to which there were no objections, this Court finds that the record is not facially erroneous. Upon a de novo review, the Court adopts the Report in its entirety.
The Court will grant a writ of habeas corpus if one of two conditions is satisfied: "the state court adjudication (1) resulted in a decision that was contrary to clearly established federal law, as determined by the Supreme Court of the United States, or (2) involved an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States." Williams v. Taylor, 529 U.S. 362, 412 (2000) (internal quotations omitted); see also Shabazz v. Artuz, 336 F.3d 154, 160-61 (2d Cir. 2003). A state court decision is contrary to federal law if the state court applies "a conclusion opposite to that reached by [the] Supreme Court on a question of law" or if it "decides a case differently than [the] Supreme Court on a set of materially indistinguishable facts." Williams, 829 U.S. at 413. A state court decision involves an "unreasonable application" of Supreme Court precedent "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Id. "Clearly established federal law" refers only to Supreme Court "holdings as opposed to the dicta, of its decisions as of the time of the relevant state court decision."Id. at 412.
An adjudication on the merits occurs when a state court: "(1) disposes of the claims `on the merits;' and (2) reduces its disposition to judgment." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting 28 U.S.C. § 2254(d)). State courts are not required to explain their reasoning process in order to adjudicate on the merits. Id. at 311. The Court reviews the claims, which were adjudicated on the merits in the appellate court, under the standard of deference set forth in 28 U.S.C. § 2254(d)(1).
In habeas review, the Court cannot "redetermine [the] credibility of witnesses whose demeanor has been observed by the state trial court." Marshall v. Lonberger, 459 U.S. 422, 434 (1983). "[A]ssessments of the weight of the evidence or the credibility of witnesses are for the jury and not grounds for reversal on appeal." Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996). The Court may only consider "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).
At trial, the complaining witness testified to her encounter with petitioner, thoroughly describing him. She recounted her selection of the petitioner's photograph, as well as the lineup identification. One of the investigating detectives corroborated her testimony. Petitioner cross-examined both witnesses. The parties stipulated to the absence of fingerprints recovered from the complaining witness's apartment following the incident. Petitioner failed to produce any other evidence in his defense. Given these facts, and when viewed in the light most favorable to the prosecution, a trier of fact could have found the essential elements of burglary and attempted robbery beyond a reasonable doubt. Petitioner's weight of evidence claim is dismissed.
A defendants Sixth Amendment right to counsel "does not attach until a prosecution is commenced, that is, at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information or arraignment." McNeil v. Wisconsin, 501 U.S. 171, 175 (1991) (internal quotations omitted). The Appellate division held the hearing court had properly denied petitioner's suppression motion. It noted that "[t]here had been no accusatory instrument filed in this case. . . . [nor a] basis upon which to disturb the court's credibility determinations." People v. Romero, 722 N.Y.S.2d 536 (App.Div. 2001). Under the AEDPA, petitioner must present clear and convincing evidence to demonstrate that criminal proceedings had commenced at the time of his lineup. See 28 U.S.C. § 2254(e)(1). He fails to meet this burden. The case was still in the investigatory stage at the time petitioner's lineup was performed. At that point, he had not been formally charged with any crime. There was no requirement that an attorney be present at the lineup. The state court decision was not "contrary to, or involv[ing] an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Petitioner's right to counsel claim is dismissed.
As petitioner has not made a substantial showing of the denial of a federal right, a certificate of appealability will not issue. 28 U.S.C. § 2253; Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); United States v. Perez, 129 F.3d 255, 259-260 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1011 (2d Cir. 1997). Additionally, 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. Coppedge v. United States, 269 U.S. 438 (1962).