Opinion
No. 00 Civ. 6668 (VM)
July 30, 2002
DECISION AND ORDER
Petitioner Jame Allen ("Allen") seeks a writ of habeas corpus pursuant to 2 U.S.C. § 2254 challenging his New York state court convictions for two counts of Attempted Robbery in the Second Degree, to counts of Assault in the Second Degree and one count of Assult in the Third Degree. In a Report and Recommendation (the "Report") dated June 25, 2002, Magistrate Judge Douglas F. Eat n recommended that the petition be denied in all respects. The Report is attached and incorporated hereto.
The Court has considered each of the three issues raised in Allen's petition, Magistrate Judge Eaton's analysis and conclusions with respect to each of them and Allen's objections to the Report dated July 10, 2002. For the reasons set forth below, the Court finds no meritorious basis in law to support Allen's challenge to his conviction on any of his asserted grounds.
With respect to Allen's claim of an unduly suggestive lineup, the Court agrees with the Report that this claim was not presented to the highest court of the state. As a consequence of Allen's failure to exhaust this claim and of his failure to demonstrate prejudice, it cannot serve as the basis of habeas relief in this Court. See Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir.), cert. denied, 531 U.S. 819 (2000).
Second, Allen was not denied his "constitutional right to a fair trial" when the trial court rejected his trial counsel's challenge of two jurors for cause. Allen failed to substantiate a federal constitutional dimension to this claim before the New York Court of Appeals and to demonstrate any partiality in the panel of jurors ultimately sitting. SeeRoss v. Oklahoma, 487 U.S. 81, 88 (1988).
Finally, Allen claims that he was denied his constitutional rights to due process and equal protection of the laws under the Fourteenth Amendment, after the Appellate Division failed to reconsider its decision after the New York Court of Appeals decided People v. Johnson, 730 N.E.2d 932 (N.Y. 2000). The Court concurs with the report in that Allen tailed initially to present a clear issue of federal law in his initial appeal to the Appellate Division. Furthermore, Johnson was decided after Allen's conviction became final, and Allen presents no grounds warranting retroactive application of that decision.
For the reasons set forth above, the Court accepts and adopts the Report in its entirety. Accordingly, it is hereby
ORDERED that Allen's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DENIED; and it is further
ORDERED that the petition is dismissed with prejudice; and it is finally
ORDERED that the Clerk of Court is directed to close this case.
As Allen has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c); United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997), cert. denied, 525 U.S. 953 (1998). The Court certifies that, pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962).