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concluding that the excluded statements were properly excluded as hearsay that lacked "circumstantial guarantees of trustworthiness" and did not fall under any hearsay exception
Summary of this case from BUIE v. PHILLIPSOpinion
No. 03 Civ. 7965 (RMB).
August 3, 2006
DECISION AND ORDER
I. Background
On or about October 8, 2003, Kevin Buie ("Buie" or "Petitioner") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 alleging that his rights under the Due Process and Confrontation Clauses of the United States Constitution were violated, in connection with his murder conviction in 1993 in New York State Supreme Court, Bronx County, by: (1) "the prosecution's belated disclosure . . . of Brady material revealing the name and address of two witnesses, [Lisa Dortch and Robin Scott]" (citing Brady v. Maryland, 373 U.S. 83, 87 (1963)); (2) "the preclusion of cross-examination of the investigating detective regarding the . . . statements of these witnesses;" and (3) "the court's refusal to allow counsel to introduce the police reports containing those witnesses' . . . statements." (Petition for Writ of Habeas Corpus, dated October 8, 2003 ("Petition"), at 2; Petitioner's Memorandum of Law in Support of Petition for Writ of Habeas Corpus, dated December 1, 2003 ("Pet'r Mem."), at 24.)
On July 12, 1993, after a jury trial, Petitioner was convicted of three counts of murder in the second degree, attempted murder in the second degree, and robbery in the first degree. (Report and Recommendation, dated March 22, 2006 ("Report"), at 1.) He was sentenced to 62½ years to life in prison. (Report, at 1.) The New York Supreme Court, Appellate Division, First Department affirmed the conviction on December 20, 2001, People v. Buie, 289 A.D.2d 140, 140 (N.Y.App.Div. 2001) ("Judgment . . . convicting defendant . . . [is] unanimously affirmed"), and on July 12, 2002, the New York State Court of Appeals denied Petitioner's leave to appeal. People v. Buie, 98 N.Y.2d 695 (2002).
On March 22, 2006, Magistrate Judge Ronald L. Ellis, to whom the matter had been referred, issued a thorough and thoughtful Report and Recommendation recommending that the Petition be denied because: (1) "the prosecution did not violate its obligations under Brady;" (2) "[i]t cannot be said that the trial court's evidentiary decision `effectively precluded the presentation of [Buie's] defense;'" and (3) "[i]t was within the trial court's discretion to . . . preclude the introduction of hearsay evidence." (Report, at 9-14.)
Petitioner timely filed objections to the Report on April 18, 2006, also arguing that "in the event that a writ of habeas corpus is not issued, a certificate of appealability should be granted." (Petitioner's Objections to the Magistrate Judge's Report, dated April 18, 2006 ("Objections"), at 3-18.)
For the reasons stated below, the Report is adopted in its entirety and the Petition is dismissed.
II. Standard of Review
The Court may adopt those portions of a magistrate judge's report to which no objections have been made and which are not facially erroneous. See Fed.R.Civ.P. 72(b); see, e.g., Cablevision Sys. N.Y. City Corp. v. Pierce, No. 04 Civ. 9863, 2006 WL 888162, at *1 (S.D.N.Y. April 5, 2006); Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y. 1991). The Court conducts a de novo review of those portions of a magistrate's report to which objections have been made. See, e.g., Pizzaro, 776 F.Supp. at 817. Once objections are received, a district judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the magistrate. See, e.g., Flores v. Osaka Health Spa, Inc., No. 05 Civ. 962, 2006 WL 1192738, at *1 (S.D.N.Y. May 3, 2006); Deluca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y. 1994).
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), "[a]n application for a writ of habeas corpus . . . 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d) (2000).
III. Analysis
The facts as set forth in the Report are incorporated herein by reference unless otherwise noted. The Court has conducted a de novo review and concludes that the recommendations of Magistrate Judge Ellis are supported by the record and the law in all material respects. See Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y. 1991). Petitioner, in his Objections, raises substantially the same arguments that were presented to Judge Ellis and does not provide a basis for departing from the Report's conclusions and recommendations.
As to any portion of the Report to which no objections have been made, the Court concludes that the Report is not clearly erroneous. See Pizarro, 776 F.Supp. at 817. Any of Petitioner's Objections not specifically addressed in this Order have been considered de novo and rejected.
(1) Brady Claim
Magistrate Judge Ellis correctly found that Petitioner failed to demonstrate two necessary elements of a Brady violation. (See Report, at 8-9) (citing Brady, 373 U.S. at 87). First, "the potentially favorable information was disclosed to defense counsel a year and a half before trial" and "the defense did have sufficient information to further investigate, which is allBrady requires." (See Report, at 9); see also U.S. v. Coppa, 267 F.3d 132, 144 (2d Cir. 2001). Second, "a prospective witness's name and address" is not consideredBrady material and its "discovery . . . is within the discretion of the trial court." (See Report, at 9) (citingMetts v. Miller, 995 F.Supp. 283, 294 n. 16 (E.D.N.Y. 1997)). The statements of Lisa Dortch, who reported some of the aftermath of the shootings from her sixth floor apartment across the street from the crime scene, and Robin Scott, who never indicated that she witnessed the crime, could properly be considered unreliable and not material. (Tr. at 560-562); see U.S. v. Eltayib, 88 F.3d 157, 167 (2d Cir. 1996) (when a witness observed the suspect "on the deck of a bobbing ship in the middle of the night, nervous, and possibly dazed . . . at a distance of 35 to 40 feet for fifteen (or perhaps only a few) minutes . . . the indicia of reliability [were] few and weak."); see also Brown v. Keane, 355 F.3d 82, 91 (2d Cir. 2004) (when "[t]here was no reasonable basis in the evidence to find that the [witness] saw the defendant shooting . . . there was no reasonable basis to conclude that the [witness' statement] . . . carried particularized guarantees of trustworthiness"); see also Kyles v. Whitley, 514 U.S. 419, 434 (1995).
(2) Cross Examination
Magistrate Judge Ellis also correctly found that because "defendants were allowed to proceed with some cross-examination as to credibility and reliability of the witness" there was no violation of the Confrontation Clause. (See Report, at 12);see also U.S. v. Roldan-Zapata, 916 F.2d 795, 806 (2d Cir. 1990). Petitioner extensively cross-examined Detective O'Brien, the lead detective in this case. (Tr. at 511-513, 579-580, 586-606, 607-608.) Magistrate Judge Ellis also correctly summarized the opportunities that the Petitioner had to "attack the police investigation" and "the credibility or reliability" of Natasha Hyndman, the (lone) surviving victim as well as the state's key witness. (Report, at 12-13.) Therefore, "it cannot be said that the trial court's evidentiary decision `effectively precluded the presentation of [Petitioner's] defense."' (See Report, at 13); Roussopoulos v. McGinnis, No. 00 Civ. 1826, 2002 WL 31641605, at *8 (E.D.N.Y. Nov. 18, 2002) (citing U.S. v. Reindeau, 947 F.2d 32, 35 (2d Cir. 1991)).
(3) Exclusion of Hearsay Evidence
Magistrate Judge Ellis correctly concluded that the hearsay evidence excluded by the trial court lacked "equivalent circumstantial guarantees of trustworthiness." Fed.R.Evid. 807; (see Report, at 13); see also U.S. v. Rosa, 11 F.3d 315, 333 (2d Cir. 1993). The excluded statements also did not fall under hearsay exceptions. See Fed.R.Evid. 804(b); see also Brown v. Keane, 355 F.3d 82, 91 (2d Cir. 2004); U.S. v. Zapata, 357 F.Supp.2d 667, 669 (S.D.N.Y. 2005); Fox v. Scully, No. 90 Civ. 7041, 1991 U.S. Dist. LEXIS 4036 at *11 n. 2 (S.D.N.Y. March 27, 1991).
Certificate of Appealability
Because Petitioner has not made a "substantial showing of the denial of a constitutional right," the Court will not grant a certificate of appealability. 28 U.S.C. § 2253(c)(2); see Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000).
IV. Conclusion
For the foregoing reasons, the Court denies the Petition and declines to grant Petitioner a certificate of appealability. The Clerk of the Court is respectfully requested to close this case.