Opinion
00-CV-0515E(Sr)
February 3, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Petitioner Owens, currently incarcerated in a New York State prison and serving an indeterminate term of imprisonment of twenty-five years to life following his conviction in New York State Supreme Court, Erie County, filed a June 15, 2000 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action was subsequently referred to Magistrate Judge H. Kenneth Schroeder, Jr., pursuant to 28 U.S.C. § 636(b)(1)(B), for an evaluation of the merits and a recommended disposition. Judge Schroeder filed a March 25, 2003 Report and Recommendation ("R R") in which he recommended that the petition be denied in its entirety. By Order, dated April 16, 2003, petitioner's motion to extend time to file Objections to the R R was granted. Owens subsequently filed his Objections to the R R on May 23, 2003.
Petitioner was convicted of two counts of Murder in the Second Degree, two counts of Robbery in the First Degree, two counts of Criminal Possession of a Weapon in the Third Degree and one count of Assault in the Second Degree. Owens was sentenced as a persistent violent felony offender pursuant to New York Penal Law § 70.08 and New York Crim. Proc. Law § 400.16.
While familiarity with the facts of this case is presumed, relevant facts will be discussed as needed. Petitioner contends in support of his habeas petition that (1) the trial court improperly denied his motion to suppress the in-court identifications that had been made by two witnesses, (2) the trial court improperly denied his Batson motion after the prosecutor allegedly exercised a peremptory challenge to exclude an African-American juror due to her race and (3) the trial court erred in refusing to charge the jury that he could have used justified deadly force if he was being robbed or if there was an attempt to rob him. Pet. ¶ 12.
A more detailed recitation of the facts and procedural history in this case is set out in Magistrate Judge Schroeder's R R.
Bateon v. Kentucky, 476 U.S. 79 (1986).
After an extensive examination of the state court record, Judge Schroeder concluded that petitioner's due process rights were not violated by the in-court identifications inasmuch as they were independently reliable and not impermissibly suggestive. R R, at 10-15. In addition, Judge Schroeder found that the trial judge's determinations with regard to the Batson motion were supported by the record and that petitioner did not present any evidence that would rebut the presumption of correctness of the trial court findings. Applying the three-step Batson analysis, Judge Schroeder found that there was no basis in the record to find that the prosecutor's stated reason for his use of the peremptory challenge was a pretext for race discrimination. Id. at 15-18. Lastly, Judge Schroeder found that upon review of the state court record, the evidence presented at trial did not support the justification charge that petitioner had requested. Judge Schroeder found that the trial court's omission of petitioner's requested charge had not caused him any actual prejudice and that the trial court's interpretation of the facts was reasonable and consistent with established federal law. Id. at 18-21.
See Purkett v. Elem, 514 U.S. 765, 767-768 (1995) (per curiam) (applying the three-step Bateon framework to respondent's allegation that the prosecutor had improperly used two peremptory challenges to strike two black men from the jury panel).
In response to the Batson challenge, the prosecutor argued that the defense did not establish a prima facie case of juror exclusion due to race. Nonetheless, in order to expedite the process, the prosecutor proffered that he had used his peremptory challenge against the potential juror because her brother had been prosecuted by the Erie County District Attorney's Office — the same office that was prosecuting Petitioner — and had been incarcerated as a result. See R R, at 3-4 (examining the state court trial transcript of the voir dire).
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate" and may adopt those parts of the R R to which no specific objection is raised, so long as such are not clearly erroneous. 28 U.S.C. § 636(b)(1)(C). It is entirely within the province of this Court to adopt the portions of the R R to which no specific objection has been raised. See Black v. Walker, 2000 WL 461106, at *1 (W.D.N.Y. 2000). However, the undersigned must make a de novo determination with respect to those portions of the R R to which specific objections have been made. 28 U.S.C. § 636(b)(1)(C); see also United States v. Raddatz, 447 U.S. 667, 673-676 (1980).
The court now turns to petitioner's specific objections. Petitioner's principal and only specific objection to the R R is that Judge Schroeder erred in relying on Batson when reviewing his claim that the prosecutor's use of a peremptory challenge in a racially discriminatory manner violated the Equal Protection Clause of the Fourteenth Amendment. Petitioner argues that the appropriate legal analysis is now governed by Miller-El v. Cockrell, 537 U.S. 322 (2003), which purportedly refined the Batson analysis. Pet.'s Objs., at 2-4. However, contrary to petitioner's assertion, the Miller-El decision did not refine or change the applicable three-step Batson analysis. The Miller-El petitioner, who had asserted a Batson violation in support of his habeas petition, was denied relief by the district court and subsequently denied a certificate of appealability ("COA") by the Court of Appeals for the Fifth Circuit. At issue on appeal to the Supreme Court was the appropriate standard for federal courts to apply in determining whether to issue a COA to habeas petitioners. Miller-El, at 327 ("At issue here are the standards AEDPA imposes before a court of appeals may issue a COA to review a denial of habeas relief in the district court."). In reversing the court of appeals' decision, the Miller-El Court reviewed petitioner's Batson claim and held that he was entitled to a COA because it was debatable that purposeful discrimination occurred during jury selection in the state trial court. Id. at 341-348. In any event, if anything, the Miller-El decision only reaffirms the applicable framework to be utilized by a trial court that is faced with a Batson challenge. As such, Judge Schroeder's conclusion and findings with regard to the trial court's findings concerning petitioner's Batson challenge were not erroneous. See R R, at 15-18 (discussing the three-step Batson analysis and concluding that an examination of the record supported the trial court's determination that the prosecutor's stated reason for excluding the relevant juror was race-neutral). Thus, petitioner's objection that Judge Schroeder erred in relying on Batson to evaluate his equal protection claim is overruled.
See Miller-El, at 338 (holding that because petitioner's habeas petition rested on a Bateon violation, resolution of his certificate of appealability application required a consideration of the three-step framework mandated by Batson).
Petitioner's other objections are that (1) Judge Schroeder erred in his determination that the relevant in-court identifications made at trial were not in violation of his due process rights and (2) Judge Schroeder's interpretation of the record and his subsequent finding that petitioner was not entitled to the requested jury instruction regarding justification was erroneous. Pet.'s Objs., at 4-7. However, such objections are mere reiterations of petitioner's arguments that he made in support of his habeas petition and he has not identified any specific portions of the R R to which he objects. In addition, plaintiff has failed to offer any credible reasons why Judge Schroeder's analyses were erroneous or even unreasonable. In any event, the Court has conducted a de novo review of the relevant portions of the R R and concurs with Judge Schroeder's findings. See R R, at 10-15 (citing relevant cases and explaining why the in-court identifications made during petitioner's trial were not impermissibly suggestive); see also id. at 19-22 (examining the record and explaining why omission of petitioner's requested jury charge did not violate his due process rights).
Specifically, Judge Schroeder found that the record did not support petitioner's claims that he was the only constant participant among two separate line-ups and that an identification of him through a photograph was unduly suggestive — arguments petitioner now seeks to renew in his objections to the R R. As Judge Schroeder noted, the record reflects that petitioner and the same stand-ins had participated in both line-ups and that all of the stand-ins were of the same race, approximate age, had similar features, were given the same instructions and wore similar clothes to petitioner. See R R, at 14 (citing trial record). With regard to the photograph identification, the record reflects that it was not impermissibly suggestive and that, regardless, the witness who made the identification had an independent basis for such. Id. at 13-14.
Significantly, the New York State Appellate Division, Fourth Department had previously found that "[t]here [was] no reasonable view of the evidence that [petitioner] used deadly physical force in an attempt to prevent or terminate a robbery." People v. Owens, 256 A.D.2d 1220, 1222 (4th Dep't 1998). As Judge Schroeder noted, such holding "constitutes a reasonable interpretation of the facts and is consistent with clearly established Federal law." R R, at 21.
Accordingly, it is hereby ORDERED that petitioner's Objections are overruled, that Judge Schroeder's R R is adopted in its entirety, that petitioner's petition for a writ of habeas corpus is dismissed and that, there being no substantial question for appeal, a certificate of appealability will not issue.