Opinion
00 CIV. 2301 (VM)(DFE).
July 23, 2002
MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION
On June 5, 2002, Magistrate Judge Douglas F. Eaton issued a Report and Recommendation ("Report") recommending that petitioner Samuel Arroyo's ("Petitioner") petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied. None of the parties has filed objections to the Report.
In reviewing the Report and Recommendation, 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.A. § 636(b)(1)(C) (West 2002). "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 record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted). See also Pizarro v. Bartlet, 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 make a de novo determination as to the aspects of the Report to which objections are made. See id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
The Court has thoroughly reviewed Magistrate Judge Eaton's comprehensive and well-reasoned Report and has determined that there is no clear error on the face of the record. The Court adopts the Report for the reasons stated therein. Accordingly, the petition for writ of habeas corpus is denied.
Magistrate Judge Eaton's Report follows.
Petitioner Samuel Arroyo brings this pro se habeas petition challenging his conviction after a 1992 trial in Supreme Court, New York County, before Justice Leslie Crocker Snyder. The jury found Arroyo and Chris Claudio guilty of Attempted Murder in the Second Degree, Conspiracy in the Second Degree, and Criminal Possession of a Weapon in the Second Degree. Arroyo was sentenced to consecutive terms of eight and one-third to twenty-five years on the attempted murder and five to fifteen years on the conspiracy. He also received a concurrent term of five to fifteen years on the weapon possession count. The state courts affirmed the conviction. People v. Arroyo, 254 A.D.2d 55, 678 N.Y.S.2d 722 (1st Dept. 1998), aff'd, 93 N.Y.2d 990, 695 N.Y.S.2d 537 (1999).
Arroyo's pro se petition is dated January 31, 2000. On January 22, 2001, Assistant District Attorney Morrie Kleinbart filed a memorandum of law and annexed an appendix containing the prior briefs and opinions as Exhibits A B F (I will cite certain of those exhibits as "Exh. ___."). The trial transcript is unnecessary for the resolution of this petition. Arroyo did not submit a reply.
Factual Background
On the evening of January 8, 1991, Samuel Arroyo drove Chris Claudio (the gunman) and Jose Sorrentini (a lookout) from Manhattan to the Bronx, in furtherance of their plan to kill Guy Maresca. A short time later, Claudio fired a single shot through a window of Maresca's car, shattering the window and lodging in the back of the driver's seat, only inches from Maresca's body. At this point, Claudio's gun jammed and the three conspirators drove away.
Legal Analysis
Petitioner's appellate counsel Lynne Stewart filed a brief to the Appellate Division (Exh. A) raising nine points. However, when she was later granted leave by the Court of Appeals, she filed a 28-page brief (Exh. D) which was entirely devoted to only one of those issues. That was a sentencing issue based entirely on state law, regarding the propriety of the consecutive sentence.
In his petition, Arroyo essentially attempts to revive all of the points that his attorney raised in the Appellate Division. His petition lists the following grounds; after each ground, I have cited to the discussions of that issue in the Appellate Division briefs:
1. That the evidence was legally insufficient to establish guilt, because the testimony of accomplice Sorrentini was not corroborated to the degree required by New York's accomplice rule (Exh. A at 13; Exh. B at 37);
2. That New York County was an improper venue for trial, even though the record showed that Arroyo joined the murder conspiracy in Manhattan and then drove the gunman from Manhattan to the victim in the Bronx (Exh. A at 15; Exh. B at 45);
3. That the judge should have suppressed the victim's selection of Arroyo from a line-up, because the line-up was unduly suggestive (Exh. A at 18; Exh. B at 52);
4. That his warrantless arrest was illegal due to a three-month pre-arrest delay (Exh. A at 44; Exh. B at 68);
5. That there were numerous instances of judicial interference and prosecutorial misconduct at trial (Exh. A at 46; Exh. B at 70, 75);
6. That Raymond Colon, petitioner's trial counsel, did not provide effective assistance (Exh. A at 58; Exh. B at 83);
7. That the trial was tainted by cumulative error by the trial court, the prosecution, and the defense counsel (Exh. A at 62);
8. That the consecutive sentences were unlawful (Exh. A at 63; Exh. B at 92); and
9. That the sentence was harsh and excessive (Exh. A at 65; Exh. B at 96).
9.1 Grounds 1 through 7 and 9 are barred because they were not presented to the highest court of New York.
9.2
28 U.S.C. § 2254(b)(1) states: "An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the state. . . ." "[B]efore seeking a writ of habeas corpus in federal court, a state prisoner must first have presented his claim to the highest court of the state." Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000); Fama v. Commissioner of Correctional Services, 235 F.3d 804, 808 (2d Cir. 2000) (citing Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971)).
Grounds 1 through 7 and 9 were not presented to the highest court of New York, and therefore they were not exhausted. Petitioner no longer has any way to bring those grounds to the highest court of the state. He has not shown any cause for the failure to exhaust, and has not shown any prejudice from the failure. Therefore, Grounds 1 through 7 and 9 cannot be the basis of a habeas petition in Federal court. See ADA Kleinbart's 1/22/01 Mem. at 2-6.
9.3 Ground 8 does not claim any violation of the Constitution or laws of the United States.
Ground 8 argues that the consecutive sentences are unlawful because the two counts arose from a single actus reus. Attorney Stewart reasonably decided that this argument was best presented as an issue of New York law. Her brief to the Appellate Division (Exh. A at 63-67) made no claim that the sentence violated Federal law. Her brief to the Court of Appeals (Exh. D) made no mention of any principle of Federal law except on page 22, in footnote 2, where Ms. Stewart wrote:
This court has noted that the constitutional prohibition against double jeopardy "is embodied in, if not * * * extended by" Penal Law § 70.25(2) (People v. Snyder, 241 N.Y. 81, 83 [construing former Penal Law § 1938, the statutory precursor to Penal Law § 70.25]). Section 70.25(2) does not prohibit convictions of multiple offenses containing overlapping elements. Rather, the statute prohibits double punishment for an act or omission which violates more than one section of the law and is accordingly punishable in different ways. We respectfully submit that there is the potential for serious abuse of the Constitutional prohibition against double jeopardy in cases where, such as here, the additional element of conspiracy may be added to the substantive offense.
This footnote merely urged the New York Court of Appeals to interpret the New York statute to avoid "the potential for serious abuse of the Constitutional prohibition." The District Attorney's brief then devoted four pages (Exh. E at 39-45) which explained that Federal law was unfavorable to Ms. Stewart's sentencing argument. The Court of Appeals affirmed the consecutive sentences. Its opinion (Exh. F) made no mention of Federal law, for the excellent reason that the appeal presented no claim of violation of Federal law.
28 U.S.C. § 2254(a) states: "The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(d) states: "An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States. . . ."
Petitioner's appeal to the highest court of New York did not claim any "violation of the Constitution or laws . . . of the United States," and certainly did not present that court with any Supreme Court decision showing that his consecutive sentence was in violation of "clearly established Federal law."
Conclusion and Recommendation
For the reasons stated above, I recommend that Arroyo's habeas petition be denied.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, any party may object to this recommendation within 10 business days after being served with a copy, by filing written objections with the Clerk of the U.S. District Court and mailing copies (a) to the opposing party, (b) to the Hon. Laura Taylor Swain, U.S.D.J. at Room 426, 40 Foley Square, New York, N.Y. 10007 and (c) to me at Room 1360, 500 Pearl Street, New York, N.Y. 10007. Failure to file objections within 10 business days will preclude appellate review. Thomas v. Arn, 474 U.S. 140 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988). Any request for an extension of time must be addressed to the District Judge.