Opinion
No. 97 CIV. 7485 (DLC)
May 17, 2000
For Petitioner, Lawrence Martin, Pro Se, 96R-8687, Groveland Correctional Facility, Sonyea, N Y 14556-0001
For Respondent, Tiffany M. Foo, Assistant Attorney General, Office of the New York Attorney General, New York, N Y 10271-0332
OPINION and ORDER
On March 17, 1997, this Court's Pro Se Office received from Lawrence Martin ("Martin") this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 to attack his conviction for drug offenses following a nonjury trial. On February 9, 2000, Magistrate Judge Kevin Fox issued a Report and Recommendation ("Report") recommending that the petition be denied. For the following reasons, the petition is denied.
On January 26, 2000, Martin submitted a motion for summary judgment in which he asserted the same grounds for relief as those set forth in his petition. Accordingly, for the reasons stated below, the motion for summary judgment is also denied.
BACKGROUND
The evidence at trial established that Martin had been arrested on June 1, 1996, by police officers after they observed what they believed to be a drug transaction. The officers recovered crack vials from Martin and from a paper bag that Martin discarded as he was arrested.Martin waived his right to counsel and represented himself both before and during trial. Prior to trial, Martin moved for a Mapp hearing. The trial judge initially granted the request, but after Martin claimed that no drugs had been recovered from him at the time of the arrest, ruled that the hearing was unnecessary. After Martin waived his right to trial by jury, Martin's advisory counsel provided Martin with the Rosario and other material provided to the defense by the prosecution and the Court gave Martin an opportunity to review the materials.
At trial, Martin denied possessing or selling cocaine on the day of his arrest. The judge found Martin guilty of Criminal Possession of a Controlled Substance in the Third Degree and sentenced him as a predicate felon to a term of 4 1/2 to 9 years in prison.
Martin filed a motion to vacate the judgment pursuant to Section 440.10, N.Y. Crim. Proc. L. The Supreme Court of New York County denied the motion on March 9, 1998, and on May 4, 1998, denied Martin's motion for reconsideration. On June 24, 1998, the Court of Appeals denied Martin leave to appeal from an order of the Appellate Division on May 21, 1998, and on August 7, 1998, denied Martin's application for reconsideration.
On or about November 15, 1996, Martin filed a notice of appeal from the judgment of conviction. The Appellate Division affirmed the conviction on June 15, 1999. See People v. Martin, 691 N.Y.S.2d 763 (1st Dep't 1999). The Court of Appeals denied Martin leave to appeal on October 28, 1999.
This petition followed. On July 23, 1999, Judge Fox recommended that this Court find that all but one of Martin's claims had been exhausted, to wit, the claim that the prosecution had failed to stipulate to a correction to the trial record, which failure interfered with Martin's right to appeal from his conviction. The respondent did not object to the Report and Martin indicated that he wished to withdraw the unexhausted claim. The recommendation was adopted and the matter returned to Judge Fox for consideration of the merits of the remaining seven claims
Martin's surviving claims are as follows: (1) Martin's arrest was made without probable cause; (2) he did not have an opportunity to testify before the grand jury before it voted to indict him; (3) the prosecution failed to announce and certify its readiness for trial; (4) the trial court failed to hold a combined Mapp-Dunaway hearing; (5) the trial court improperly changed the theory of the indictment; (6) the trial court refused to allow Martin to require a police officer witness to produce his identification credentials; and (7) the prosecution failed to provide Martin with Brady and Rosario material. The Report recommending dismissal of these claims is the subject of this Opinion. Through submissions of February 17 and March 10, 2000, Martin has objected to portions of the Report as described below; the respondent has not.
DISCUSSION
In reviewing the Report, this 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."Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N Y 1985) (citations omitted). See also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (court may accept report if it is "not facially erroneous"). The Court shall make a de novo determination of those portions of the Report to which objection is made. See id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997)
Section 2254, as amended by the AEDPA, provides for the following standard of review:
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; 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.28 U.S.C. § 2254 (d). As the Supreme Court has recently elaborated,
[u]nder the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the United States Supreme Court] on a question of law or if the state court decides a case differently than [the United States Supreme Court] has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the United States Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). With respect to factual findings, Section 2254(e)(1) states that "a determination of a factual issue made by a State court shall be presumed to be correct" and that a petitioner is required to rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1)
A. The Legality of the Arrest
Martin contends that his arrest, which was based on the seizure of drugs from him, was made without probable cause and that the refusal of the trial judge to conduct a pretrial suppression hearing violated his Fourth Amendment rights. When the state has provided an opportunity for a full and fair hearing on a Fourth Amendment claim, a state prisoner cannot obtain habeas relief for violation of his Fourth Amendment rights. SeeStone v. Powell, 428 U.S. 465, 481-82 (1976); Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991). This holds true even if the federal court would reach a different result. See Capellan v. Riley, 975 F.2d 67, 71 (2d Cir. 1992). A petitioner may only obtain review in a federal habeas petition of a Fourth Amendment claim when (1) the state has provided no corrective procedures to redress the Fourth Amendment violation, or (2) the state provided corrective procedures, "but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Id. at 70 (citing Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (en banc))
In an attempt to challenge the legality of his arrest, Martin requested a pretrial suppression hearing. Had Martin successfully moved to suppress the evidence obtained from him, then he would have effectively challenged the legality of his arrest and left the state without evidence on which to proceed to trial. Martin's request for a suppression hearing was granted, but when he appeared before the trial court for the hearing, he stated that "[t]hey didn't obtain any drugs from me." The trial courti then explained that a Mapp hearing "is granted. generally because the defendant has said that drugs were obtained from [him] illegally," and that based on Martin's assertion that no drugs were seized, there was no need for such a hearing. Martin stated that he understood. Martin raised this issue on direct appeal to the Appellate Division, which rejected the claim as unpreserved.
Martin does not claim that New York State lacks corrective procedures to redress an alleged Fourth Amendment violation, nor does he claim that an "unconscionable breakdown" in those procedures has occurred. Indeed, Martin availed himself of New York's statutory procedures when he requested a Mapp hearing and presented his arguments regarding these issues to the trial court. As the trial court informed him, however, because he disclaimed any possessory interest in the contraband, and indeed asserted that no drugs were seized from him, Martin had no standing to contest the seizure. See United States v. Osorio, 949 F.2d 38, 40 (2d Cir. 1991); United States v. Torres, 949 F.2d 606, 608 (2d Cir. 1991). Because Martin has enjoyed a full and fair opportunity to assert these claims in state court, habeas review is precluded.
Martin also contends that by refusing to hold a suppression hearing, the trial court in effect changed the theory of the prosecution and the indictment. Martin is incorrect. The trial court's refusal was based on an analysis of the legal requirements for holding a hearing, and did not change in any way the nature of the crimes for which Martin was indicted or the prosecution's burden of proof at trial. Martin is therefore not entitled to habeas corpus relief on this claim.
B. Grand Jury Presentation
Martin contends that his Fourteenth Amendment rights to due process and equal protection were infringed when the state refused to honor his request to testify before the Grand Jury. Martin raised this issue on his direct appeal to the Appellate Division, which rejected it as unpreserved. See People v. Martin, 691 N.Y.S.2d 763 (1st Dep't 1999). The Report recommended that, because Martin failed to make a timely objection at trial, this claim be dismissed on the grounds that (1) there was a procedural default, which provided an independent and adequate state ground for the state court's rejection of the claim, and (2) there had been no showing by Martin of either cause or prejudice to overcome the default. Martin's objections contain no argument addressed to this analysis.
Martin did, however, raise this issue at trial when he objected that "[b]efore I give testimony, the vote was gotten from the Grand Jury. That is another thing." The trial judge instructed Martin that that was an issue for appeal, not for the trial. It appears, therefore, that there was no procedural default.
Martin's claim of deficiency in a state grand jury proceeding is not, however, a ground for federal habeas corpus relief. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989). See also United States v. Eltayib, 88 F.3d 157, 173 (2d Cir. 1996) (noting that the guilty verdict of a petit jury cures any defect in the grand jury proceeding). Furthermore, there is no constitutional right to appear before a grand jury. See United States v. Occhipinti, No. 91 Cr. 0168, 1991 WL 84557, at *3 (S.D.N.Y. May 14, 1991) (CBM) (citing United States v. Thompson, 144 F.2d 604, 605 (2d Cir. 1944) (Hand, J.) (" [A]lthough grand juries have in recent times occasionally invited persons, whose conduct they are examining, to appear, they are never obliged to do so.")). Martin is therefore not entitled to habeas relief on this ground.
C. Failure to Announce Readiness for Trial
Martin contends that his Fourteenth Amendment rights to due process and equal protection were infringed when the state failed to announce its readiness for trial prior to his trial. The Report recommended dismissal on the ground that there was a procedural default and a failure to establish either cause or prejudice. Martin's objections do not address this analysis in the Report, and finding no clear error, the Report's recommendation is adopted.
D. Refusal to Require Trial Witness to Produce Police Credentials
Martin contends that his Sixth Amendment right to confrontation was denied when the trial judge rejected his request that a police officer witness be required to produce his credentials during his trial testimony. The Report's detailed discussion of this issue concluded that the trial court acted well within its discretion in ruling as it did. Martin objects that there was a "structural defect" in the proceedings against him in that had the officer produced his credentials, they would have shown that he was not who he claimed to be, thereby making a different verdict probable. A "structural defect," such as deprivation of the right to counsel, is a defect "affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Arizona v. Fulminante, 499 U.S. 279, 310 (1991). Trial error, on the other hand, "`occur[s] during the presentation of the case to the jury,' and is amenable to harmless-error analysis." Brecht v. Abrahamson, 507 U.S. 619, 629 (1993) (quoting Fulminante, 499 U.S. at 307-308). A trial error will only require reversal upon habeas review if it "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). As detailed in the Report, the trial court's ruling was not in error and the witness's testimony provided the court with sufficient proof of the witness's identity. Because there was neither error nor injurious effect, this argument is properly dismissed.
E. Brady and Rosario Violations
Martin contends that he was denied copies of certain materials which the state was required to give him pursuant toBrady v. Maryland or the Rosario doctrine. The Report recommended dismissal of these claims. There being no objection and no clear error, the recommendation is adopted.
Martin contends in his objections that the Report's analysis is flawed at various points because the Magistrate Judge relied upon an erroneous trial transcript. This contention is an attempt to reinsert into the petition the very claim that Martin agreed to dismiss. In the Report issued on July 23, 1999, Judge Fox pointed out that one of Martin's claims — the claim that the prosecution's failure to stipulate to corrections in the trial record rendered his direct appeal ineffective — was an unexhausted claim. By letter of August 13, 1999, Martin indicated a wish to withdraw the unexhausted claim. Having made that decision, Martin cannot now rely on essentially the same argument as the means by which to undercut the analysis of the merits of his remaining claims.
CONCLUSION
For the reasons stated, the petition for a writ of habeas corpus is denied. I find that the petitioner has not made a substantial showing of the denial of a constitutional right and appellate review is therefore not warranted. See Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). In addition, I find, pursuant to 28 U.S.C. § 1915 (a)(3), that any appeal from this Order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962)
SO ORDERED: