Opinion
00 Civ. 9103 (HB)
August 29, 2002
Angel Serrano, Green Haven Correctiona Facility, Stormville, NY, Pro Se.
Dian Kerr McCullough, Attorney General of the State of New York, New York, NY, Attorney for Charles Greiner.
MEMORANDUM ORDER
Following a jury trial, petitioner Angel Serrano ("Serrano") was convicted in New York State Supreme Court on February 6, 1997, of one count of robbery in the first degree and one count of bribery in the third degree. Serrano was sentenced on March 4, 1997, to an indeterminate term of 20 years to life imprisonment. On November 30, 2000, Serrano filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on the grounds that (1) the evidence at trial was insufficient to establish the element of possession with respect to his robbery conviction; (2) the trial court's jury charge was improper; (3) the trial court improperly permitted the prosecution to reopen its case to present additional testimony; (4) his sentence was unconstitutional; and (5) the evidence at trial was insufficient to prove his identity in relation to the robbery. On May 7, 2001, I referred this case to Magistrate Judge Debra Freeman. Serrano, with leave of the court, filed an amended petition on July 27, 2001, that did not contain any new arguments in support of his claims asserted in the original petition. Additionally, Serrano filed a supplemental "Exhibit #8" on February 7, 2002. On February 13, 2002, Judge Freeman issued a Report and Recommendation ("Report") that recommended that Serrano's motion be denied and his petition dismissed. Petitioner timely objected to portions of the Report. For the following reasons, I adopt the Report by Judge Freeman in its entirety. Petitioner's motion is hereby DENIED and the petition is dismissed.
I. DISCUSSION
A. Standard of Review
The Federal Magistrate Act provides that a district judge may "designate a magistrate to conduct hearings, including evidentiary hearings" in order to "submit to a judge of the court proposed findings of fact and recommendations for the disposition . . . of applications for post-trial relief made by individuals convicted of criminal offenses. . . ." 28 U.S.C. § 636(b)(1)(B). In reviewing the Report, this Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1); see Fed.R.Civ.P. 72(b). Additionally, any party may object to the Magistrate Judgets findings and recommendations. See id. If an objection is timely filed, as is the case here, the Court is bound to make a "de novo determination of those portions of the report . . . or recommendations to which objection is made." Id. See United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
B. Serrano's objections
Serrano objects to those portions of the Report that found that (1) his first and second claims were procedurally barred, (2) there was sufficient evidence for a jury to convict him at trial on the robbery charge, (3) there was no error by the trial court in permitting the prosecution to reopen its case for additional testimony, and (4) his challenge to his sentence was not a cognizable claim for habeas review. Petitioner's objections, which essentially only reiterate his prior arguments set forth in his petition and reply papers, are without merit.
I agree with the Report's finding that Serrano's first claim challenging the sufficiency of the evidence with respect to the element of possession in his robbery charge, and his second claim with respect to the jury charge, are procedurally barred from habeas review in light of the Appellate Division's affirmance of his conviction in People v. Serrano, 261 A.D.2d 197 (1st Dep't 1999); see Coleman v. Thompson, 501 U.S. 722, 729 (1991) (finding federal habeas review unavailable where the question has been decided by a state court on a state law ground, substantive or procedural, that is independent of the federal question and adequate to support the judgment). In a written opinion, the Appellate Division found both claims unpreserved and noted they were without merit in any event. See Serrano, 261 A.D.2d at 198.
As to petitioner's fifth claim with respect to the sufficiency of evidence at trial establishing his identify in the robbery, I again agree with the Report's finding, and that of the jury, that there was sufficient evidence to convict Serrano of the charge. See, e.g, United States v. Carson, 702 F.2d 351, 361 (2d Cir. 1983) (finding that the appropriate inquiry on an insufficiency claim is "whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt . . . view[ing] the evidence in the light most favorable to the government, and constru[ing] all permissible inferences in its favor" (citations omitted).
With respect to Serrano's third claim, that the trial court improperly permitted the prosecution to reopen its case for additional testimony, the Report was correct when it concluded that Serrano failed to establish error or that any error was so prejudicial as to deny him due process.See Rosario v. Kuhlman, 839 F.2d 918, 925 (2d Cir. 1988) ("[E]rroneous evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus. Rather, the writ would issue only where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial.") (emphasis in original) (quotation and citation omitted).
Finally, Serrano's contention that the state court improperly relied on his 1989 conviction for attempted burglary in the second degree in determining that he was a persistent violent felony offender as defined in the New York State penal law presents a question of state law and therefore, as the Report found, is not a proper subject for a federal habeas corpus petition. See 28 U.S.C. § 2254. The Appellate Division also found no merit to this claim. See Serrano, 261 A.D.2d at 198. To the extent that Serrano challenges his 1997 sentence as cruel and unusual punishment in violation of the Eighth Amendment, that claim, as the Report fully sets forth in detail, is additionally without merit.
Having conducted a careful de novo review of the petitioner's claims, his objections and Judge Freeman's Report, which I note was a well-reasoned and comprehensive thirty-one page analysis, the Report is adopted in its entirety.
II. CONCLUSION
For the foregoing reasons, Serrano's petition for a writ of habeas corpus is DENIED. The Clerk is instructed to close this case and remove it from my docket.