Opinion
06 Civ. 3887 (DLC).
February 2, 2007
For Petitioner: Anthony O'Garro, pro se.
For Respondent: Yael V. Levy, Peter D. Coddington, Assistant District Attorneys, Office of the Bronx District Attorney, Bronx, New York.
OPINION AND ORDER
Pro se plaintiff Anthony O'Garro ("O'Garro") filed this timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on May 22, 2006. On June 7, this Court referred the action to Magistrate Judge James C. Francis pursuant to 28 U.S.C. § 636(b). On October 24, Judge Francis issued his Report ("Report") recommending that the petition be denied. For the following reasons, the Report is adopted.
BACKGROUND
The facts relevant to O'Garro's petition are set out in the Report and summarized here. On the afternoon of November 17, 1998, two men robbed the D-Cap insurance office. One man, identified at trial as O'Garro, pointed a gun at employee Francis Blanco ("Blanco") and demanded money. After she gave them cash, they left. Blanco watched as the two men walked toward a four-door black car.A mechanic, Joseph Dunn ("Dunn") arrived at around this time and called 911 on Blanco's behalf, relaying Blanco's description of the perpetrators and her description of their car as black. It appears that Dunn, who did not testify at trial, also saw the car and added to his 911 call the fact that the car was a Buick.
Within an hour, the police, acting on a tip, drove Blanco to 1956 Crotona Parkway, telling her to look out and see if she recognized anyone. A black Buick was parked outside 1956 Crotona Parkway, and Blanco identified it as looking like the vehicle that she saw, noting that "it was the same shape."
About twenty-five minutes later, after darkness had fallen, O'Garro emerged from 1956 Crotona Parkway. Blanco told the officers that she thought she recognized him as the perpetrator but was not sure because she could not see his face. He was not wearing clothes matching Blanco's previous description.
O'Garro drove away in the Buick, and the officers and Blanco followed him. Blanco identified O'Garro as one of the robbers when the cars were approximately ten to fifteen feet apart. When the police removed O'Garro from his car, Blanco again identified him. When asked if she was sure, she answered that she was one hundred percent sure.
The trial court held a hearing on the question of whether the police procedures that led to Blanco's pretrial identification of O'Garro were unduly suggestive. It held that they were not.
At trial, the parties agreed not to reveal the informant's tip, but only that the police acted "based upon an investigation." The court ruled that any introduction of Blanco's statement to a defense investigator that "it was as if [the police] had already known who it was so they asked me to ride around with them and they drove to the car and asked me if that was it," would permit the prosecution to recall a police officer to testify about the informant's tip. The defense then agreed to admission of Blanco's statement with the quoted portion redacted.
The trial court admitted into evidence the tape of Dunn's 911 call. Later, the court instructed the jury that the tape was admitted not for the truth of its contents, but "as a narrative of the events which occurred and to explain the actions undertaken by the police that day."
O'Garro was convicted in New York State Supreme Court, Bronx County, of robbery in the first degree. He was declared a persistent violent felony offender, see N.Y.P.L. §§ 70.04[b], 70.08, and sentenced to an indeterminate prison term of twenty-four years to life. One of O'Garro's predicate offenses was a 1981 Bronx County conviction, although O'Garro argued that he had not been informed of certain defenses to the crime to which he pled guilty, and that his conviction was beyond the ten-year statute of limitations for a predicate offense since incarceration in a youth facility does not toll the statute of limitations. He argued that he had not knowingly waived his right to challenge the constitutionality of the 1981 conviction.
On direct appeal, the Appellate Division affirmed the conviction and the denial of his motion to set aside his sentence. See C.P.L. § 440.20. The New York Court of Appeals denied leave to appeal, People v. O'Garro, 5 N.Y.3d 766 (2005), and the United States Supreme Court denied O'Garro's petition for certiorari. O'Garra v. New York, 126 S.Ct. 627 (2004). In his appeal, O'Garro raised all the claims he raises in his habeas petition, plus one claim not raised here. They were addressed by the Appellate Division on the merits and rejected.
In his petition, O'Garro contends: (1) that he was convicted on the basis of an unduly suggestive pretrial identification; (2) that introduction at trial of a 911 tape violated the Due Process and Confrontation Clauses of the United States Constitution; (3) that the trial judge's ruling on the statement Blanco made to a defense investigator violated the Due Process and Confrontation Clauses of the United States Constitution; (4) that O'Garro's sentencing as a persistent violent felony offender was based upon an unconstitutional 1981 conviction and ineffective assistance of counsel in two later convictions, who should have challenged the 1981 conviction; and (5) that Apprendi v. New Jersey, 530 U.S. 466 (2000), requires a jury to determine whether he is a persistent violent felony offender for sentencing purposes.
After examining the merits of each of these claims, Judge Francis recommended in a Report issued on October 24, 2006 that the petition be denied. O'Garro has filed objections to the Report.
DISCUSSION
In reviewing the Report, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 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." Urena v. People of the State of New York, 160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001) (citing Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)). The court shall make a de novo determination of the portions of the report to which petitioner objects. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). An objection which merely refers to previously filed papers or arguments or which is "devoid of any reference to specific findings or recommendations" and "unsupported by legal authority" does not require de novo review. Mario v. P C Foods, Inc., 313 F.3d 758, 766 (2d Cir. 2002). At the same time, "the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest."Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis and citation omitted).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, modified the standard under which federal courts review Section 2254 petitions. When a claim has been adjudicated on the merits in state court proceedings, habeas relief may not be granted unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." The court presumes that factual findings by a state court are correct unless the petitioner rebuts this presumption by "clear and convincing evidence." 28 U.S.C. §§ 2254(d)(1), (d)(2). 28 U.S.C. § 2254(e)(1); Miller-El v. Dretke, 545 U.S. 231, 240 (2005).
A. Pretrial Identification
The petition asserts that the trial court erred in admitting an unduly suggestive pretrial identification. The Report found that the identification was not the result of unduly suggestive procedures, but that its admission was appropriate in any event under the multi-factor test in Neil v. Biggers, 409 U.S. 188, 199-200 (1972).
O'Garro does not dispute that the Report uses the correct legal standard. He objects to the Report's conclusion that sufficient independent indicia of reliability existed to show that Blanco identified the right perpetrator given certain actions by the police. O'Garro has not provided clear and convincing evidence that the fact finding of the trial court at the Wade hearing was incorrect. See 28 U.S.C. § 2254(e)(1); Miller-El, 545 U.S. at 240. Moreover, the finding by the state courts that Blanco's pretrial identification was sufficiently reliable to be admitted at trial was not an unreasonable application of the standards for evaluating reliability articulated in Biggers, 409 U.S. at 199-200.
See United States v. Wade, 388 U.S. 218 (1967).
B. 911 Tape
The petition asserts that the admission of a tape recording of Dunn's 911 call, where Dunn did not testify at trial, violated O'Garro's rights under the Confrontation Clause of the United States Constitution. See Crawford v. Washington, 541 U.S. 36, 59-60 (2004). The Report found that admission of the tape did not implicate the Confrontation Clause because the trial court admitted it for a non-hearsay purpose and instructed the jury it was not to consider the tape evidence of the truth of the matter asserted therein.
O'Garro's objection merely restates the argument in the petition. Reviewing the Report for clear error, and finding none, the recommendation to deny this element of O'Garro's petition is adopted.
C. Statement to Defense Investigator
The petition objects to the trial court's ruling that Blanco's statement to police investigators that "it was as if they had already known who it was," if elicited, would open the door to prosecution testimony regarding the police informant's tip. The Report found that the ruling legitimately sought to avoid leaving the jury with an undue impression of police misconduct and was "harmonious with the goal of ensuring the legitimacy of the truthfinding process." Howard v. Walker, 406 F.3d 114, 129 (2d Cir. 2005).
O'Garra objects that compliance with the rules of evidence does not necessarily imply compliance with the Confrontation Clause. The Report relied on Delaware v. Van Arsdall, 475 U.S. 673 (1986), to find that "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits . . . based on concerns about . . . prejudice [and] confusion of the issues. . . ." Id. at 679. O'Garro has not shown that the Appellate Division unreasonably applied Supreme Court precedent when it concluded that the admission of Blanco's remark "would have placed an unsolved mystery before the jury . . . [and] invited unfair speculation" that could have prejudiced the jury against the state. People v. O'Garra, 791 N.Y.S.2d 538, 540 (N.Y.App.Div. 2005).
D. Sentencing as Persistent Violent Felony Offender
The petition asserts that O'Garro was wrongfully sentenced as a persistent violent felony offender because a 1981 conviction, one of his predicate offenses, was unconstitutional. The Report found that O'Garro's sentencing claim is barred by Lackawanna County District Attorney v. Coss, 532 U.S. 394, 403-04 (2001), which held with exceptions that do not apply here that a federal habeas petitioner may not challenge a state conviction used to enhance a sentence on the ground that the prior conviction was unconstitutionally obtained "once a state conviction is no longer open to direct or collateral attack in its own right." The Report also concluded that O'Garro's claims of ineffective assistance of counsel at his 1985 and 1986 sentencings for other predicate felony offenses, in particular that his attorneys in those proceedings should have attacked his 1981 conviction, fail because neither of those convictions remains open to collateral attack or falls within an exception stated in Coss.
O'Garro argues in his objection that Rompilla v. Beard, 545 U.S. 374 (2005), allows a habeas court to reach his ineffective assistance claim. In Rompilla, the petitioner challenged the assistance provided at the sentencing for the conviction which was under collateral review. Id. at 378-79. Here, O'Garro asks for review of assistance provided at the 1985 and 1986 sentencing proceedings.
E. Apprendi Claim
The petition asserts that O'Garro's sentencing as a persistent violent felony offender was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). The Report found that New York Penal Law Section 70.08's requirement that a defendant have two predicate felony convictions falls within Apprendi's "fact of a prior conviction" exception and that the sentencing court's determination of the length of the petitioner's prior incarceration for purposes of determining whether he was a persistent violent felony offender was not contrary to nor an unreasonable application of Supreme Court precedent.
O'Garro has not made any specific objections to this part of the Report. Finding no clear error, the Report is adopted.
CONCLUSION
The recommendation of Magistrate Judge Francis is adopted, and the petition for a writ of habeas corpus is denied. The request for appointment of counsel is denied.
In addition, the Court declines to issue a certificate of appealability. O'Garro has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted. Grotto v. Herbert, 316 F.3d 198, 209 (2d Cir. 2003). The Court also finds, 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, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition and close the case.
SO ORDERED: