Opinion
99-CV-0678E(Sr)
December 6, 2001
MEMORANDUM and ORDER
Robert Lee Owens, proceeding pro se, filed a petition for a writ of habeas corpus September 21, 1999 pursuant to 28 U.S.C. § 2254 on the following grounds: (1) he was compelled to wear prisoner clothing at trial in violation of his constitutional right to wear non-prisoner clothing; (2) the testimony of Dr. Markson that, if the victim's wound had gone untreated, a substantial risk of death existed was irrelevant and prejudicial; and (3) the hearsay statement by the complainant — viz., petitioner tried to kill me while I was sleeping — was erroneously admitted over objection as an excited utterance and impermissibly bolstered the trial testimony of the complainant. The undersigned referred this matter to Magistrate Judge H. Kenneth Schroeder, Jr. for a consideration of the merits and legal issues raised by petitioner in his application for post conviction relief.
After the filing on April 12, 2001 of Judge Schroeder's Report and Recommendation (the "RR") — in which he recommended that the petition be denied in its entirety —, petitioner filed an objection to the RR on all grounds raised in his original habeas corpus petition. For the reasons set forth below, this Court adopts the RR in its entirety and denies petitioner's petition for habeas corpus relief on the same grounds as recommended in and by the RR.
While familiarity with the facts of this case is presumed, the relevant details will be repeated. Owens was found guilty on charges of assault in the first degree, criminal possession of a weapon in the third degree, burglary in the first degree and robbery in the first degree. Prior to the start of jury selection, petitioner's counsel asked Judge Dennis Bender to make a comment to the jury concerning the fact that petitioner was dressed in prison attire. The requested remark was made during jury selection and no further curative action was requested. During the trial Calvin Carver testified that on the morning of May 3, 1994 he found the victim, Michael Taylor, standing outside his door nude and bleeding. Over petitioner's counsel's objection, Judge Bender allowed Mr. Carver to testify that Mr. Taylor had told him that petitioner had tried to kill him while he was asleep, as an excited utterance. There was also testimony put forward at trial by Dr. Markson — the physician who treated Mr. Taylor — that if his wounds had been left untreated, they would have been a risk of death therefrom.
Following his conviction, petitioner was sentenced as a second violent offender to a prison term of eighteen to thirty-six years. He then filed a timely notice of appeal to the New York State Appellate Division, Fourth Department, where he raised all three grounds on which his present petition is based. On June 10, 1998 petitioner's conviction was unanimously affirmed on the basis that none of the issues raised on appeal had been preserved for review. People v. Owens, 251 A.D.2d 1037 (4th Dep't 1998). Petitioner then sought leave to appeal his conviction to the New York State Court of Appeals, but only on the ground that he had been improperly forced to appear in prison clothing. On September 21, 1998 such petition was denied. People v. Owens, 92 N.Y.2d 928 (1998). On September 21, 1999 petitioner filed a claim in this Court for federal habeas corpus relief raising the three grounds which he raised in his direct appeal to the Fourth Department. Judge Schroeder's RR recommended that his claim be denied on all grounds because petitioner could not make the necessary showing under 28 U.S.C. § 2254(d) that the adjudication of the merits of his claim in state court proceedings had resulted in a decision that was either contrary to clearly established federal law or based upon an unreasonable determination of the facts. Petitioner then filed an objection to such recommendation which objection restated the three grounds that he had raised on his direct appeal to the Fourth Department. This Court opines that Judge Schroeder's RR is correct in every aspect and should therefore be adopted in its entirety.
Petitioner's objection did not state specific objections to the RR but rather expressed disagreement with the fact that Judge Schroder did not recommend that he be given a new trial because he felt that his first trial was not fair for the reasons listed in his appeal to the Fourth Department.
Instead of objecting to having to wear prison clothes at his trial, petitioner's counsel merely asked for a cautionary instruction to be given to the jurors. The Fourth Department held that such did not preserve the issue for appeal. Judge Schroeder was correct in recognizing that "[a] procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar" — Harris v. Reed, 489 U.S. 255, 263 (1989) — and that failure to raise an issue at trial is an adequate and independent state ground. Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977). Therefore this Court is barred from hearing the merits of petitioner's claim of his having to wear prison clothes at trial because he did not appeal from such.
Petitioner has similarly defaulted on his remaining two grounds for relief. As noted supra, petitioner did not raise his two other claims for relief in his direct appeal to the New York State Court of Appeals. This results in a procedural default of such claims. O'Sullivan v. Boerckel, 526 U.S. 838, 848 (1999). Judge Schroeder therefore properly recommended that the petition based on these two grounds should similarly be denied.
Petitioner did make a vague reference to his remaining two claims in his petition for leave to appeal to the New York Court of Appeals when he concluded his application by stating that "[a]pplicant specifically requests that every issue of law presented by the record in this case be considered in conjunction with this application." This is insufficient to have exhausted his claims before such court. Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991); Jordan v. Lefevre, 206 F.3d 196, 198-199 (2d Cir. 2000).
Accordingly, it is hereby ORDERED that Judge Schroeder's RR dated April 12, 2001 shall be adopted in its entirety, that petitioner's petition for a writ of habeas corpus is denied and that this case shall be closed.