The opinion of the court was delivered by: Sprizzo, District Judge:
MEMORANDUM OPINION AND ORDER
Petitioner Anthony Peterson brings this petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254 (1988),
challenging his state court conviction on rape, sodomy, robbery
and kidnapping charges. Petitioner makes three claims: (1) that
he was deprived of the right to testify on his own behalf by
the state court's rulings on the admissibility of evidence of
similar crimes for impeachment purposes; (2) that he was denied
due process because the sentencing court considered similar
crimes for which the prosecution asserted that petitioner was
responsible in fixing his sentence; and (3) that he was denied
due process by the trial court's questioning of witnesses. The
matter was referred to Magistrate Sharon E. Grubin, who
recommended that the petition be denied. The Court has reviewed
the Magistrate's Report and Recommendation ("Report") and the
objections thereto de novo, see 28 U.S.C. § 636(b) (1988), and
for the reasons set forth below the petition is dismissed.
Petitioner was convicted, after a jury trial, of two counts
of rape in the first degree, one count of sodomy in the first
degree, two counts of robbery in the first degree and two
counts of kidnapping in the second degree. He was sentenced on
June 25, 1985 to consecutive terms of imprisonment of eight and
one-third to twenty-five years on each rape count, the sodomy
count and the robbery counts, and concurrent terms of eight and
one-third years to twenty-five years on the kidnapping counts.
The convictions were affirmed without opinion by the Appellate
Division of the
New York State Supreme Court on December 2, 1986, People v.
Peterson, 125 A.D.2d 1014, 508 N.Y.S.2d 360 (1st Dep't 1986),
and leave to appeal was denied by the New York Court of Appeals
on May 13, 1987. People v. Peterson, 69 N.Y.2d 1008,
511 N.E.2d 101, 517 N.Y.S.2d 1042 (1987).
The convictions arose from an attack upon a teenage couple in
Central Park on July 14, 1984. The evidence introduced at trial
established that Micki McPherson and Carlos Guzman, both
fourteen-years-old, were attacked by petitioner and another man
while waiting for some friends. See Report at 2-3. The couple
were taken into a secluded wooded area at knifepoint, where the
boy was tied and blindfolded with his own clothes, and robbed.
The assailants then took the young girl to another part of the
woods where both of them raped her and petitioner sodomized
her. She was also robbed. See Report at 3-4. The youths
eventually managed to escape when petitioner left to get some
friends. See Report at 5. Petitioner was apprehended on July
18, 1984. Thereafter, he was indicted on July 30, 1984, tried
The State Court's Evidentiary Ruling
During petitioner's trial, the prosecution sought to
introduce evidence of approximately a dozen similar crimes.
These crimes were all attacks upon young couples in Central
Park in 1983 and 1984 that occurred in the same vicinity as the
incidents for which he was on trial. The prosecution also tried
to introduce evidence of three 1978 rapes for which petitioner
had been adjudicated a youthful offender.
The trial court barred the prosecution from introducing that
evidence on its direct case, but ruled under People v.
Sandoval, 34 N.Y.2d 371, 314 N.E.2d 413, 357 N.Y.S.2d 849
(1974), that if petitioner chose to testify, the prosecution
could impeach his credibility by questioning him about three of
the similar acts.*fn2 See Trial Transcript ("Tr.") at 410-11,
414, 422-23.*fn3 Petitioner did not testify.
Petitioner's assertion that he was deprived of the right to
testify on his own behalf arises out of this ruling. He argues
that the Court misapplied Sandoval in that it improperly
focused upon the similarities between the alleged similar acts
and the McPherson incident and thus did not balance the
probative value of that evidence against its potentially
It is well-settled that a petitioner's failure to testify is
fatal to any claims of constitutional deprivation arising out
of a Sandoval type ruling because in the absence of such
testimony the Court has no adequate non-speculative basis upon
which to assess the merits of that claim even when the issue is
raised on direct appeal. See Luce v. United States,
469 U.S. 38, 41-42, 105 S.Ct. 460, 463, 83 L.Ed.2d 443 (1984). It
follows that where, as here, a similar claim is raised by a
petition for a writ of habeas corpus, the same result must
obtain. See Carroll v. Hoke, 695 F. Supp. 1435, 1439-40
(E.D.N.Y. 1988), aff'd mem., 880 F.2d 1318 (2d Cir. 1989);
Underwood v. Kelly, 692 F. Supp. 146, 151 (E.D.N.Y. 1988), aff'd
mem. 875 F.2d 857 (2d Cir.), cert. denied, ___ U.S. ___, 110
S.Ct. 117, 107 L.Ed.2d 79 (1989); Carrasquillo v. Kirk,
677 F. Supp. 193, 194-95 (S.D.N.Y. 1988).
Petitioner's second claim stems from the state court's
comments at sentencing which indicate that the court imposed
the maximum possible sentence upon petitioner because, in the
court's view, he was responsible for the series of identical
assaults referred to above, for which petitioner had not been
tried or convicted.*fn5 See Transcript of Sentencing
("Sent.Tr.") at 17-20. Additionally, he contends that because
the Court failed to hold a hearing on the issue of ...