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January 23, 1991


The opinion of the court was delivered by: Kimba M. Wood, District Judge.


In August 1988, petitioner filed this habeas corpus petition, asserting two claims for relief. The court referred the matter to Magistrate Judge Grubin on January 4, 1989. Having received the Magistrate Judge's Report and Recommendation ("Report") and the objections thereto submitted by petitioner, and having conducted a de novo review of the record, the court accepts and adopts the Magistrate's Report.

For substantially the reasons set forth by Magistrate Judge Grubin, the application for writ is denied. The clerk of the court is directed to enter judgment dismissing the petition without prejudice. As the petition presents no questions of substance for appellate review, a certificate of probable cause will not issue. Alexander v. Harris, 595 F.2d 87, 90-91 (2d Cir. 1979). We certify pursuant to 28 U.S.C. § 1915(a) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).



SHARON E. GRUBIN, United States Magistrate Judge:

Petitioner pro se seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his August 22, 1984 convictions after a jury trial in the New York State Supreme Court, New York County, of sodomy in the first degree (N.Y.Penal Law § 130.50), attempted rape in the first degree (N.Y.Penal Law §§ 110.00 and 130.35), burglary in the first degree (N.Y.Penal Law § 140.30) and assault in the second degree (N.Y.Penal Law § 120.05). He was sentenced to concurrent indeterminate prison terms of eleven to twenty-two years on the sodomy count, eleven to twenty-two years on the burglary count, seven and one-half to fifteen years on the attempted rape count and three and one-half to seven years on the assault count. The Appellate Division, First Department, affirmed the convictions without opinion on March 20, 1986, People v. Minor, 118 A.D.2d 1051, 499 N.Y.S.2d 1001 (1986), and the New York Court of Appeals denied leave to appeal on April 16, 1986, People v. Minor, 67 N.Y.2d 947, 502 N.Y.S.2d 1040, 494 N.E.2d 125 (1986). Petitioner also moved to vacate the judgment of conviction pursuant to N.Y.Crim.Proc.Law § 440.10 before the Honorable Stanley Sklar of the New York State Supreme Court, New York County, who had presided at the trial. The motion was denied on May 4, 1987, and on May 10, 1988 the Appellate Division, First Department, denied petitioner leave to appeal Justice Sklar's decision.

The petition raises the following two questions: (1) whether petitioner was denied a fair trial by comments of the prosecutor during summation, and (2) whether petitioner was denied the effective assistance of counsel at trial. For the reasons discussed below, I find that both questions must be answered in the negative, and I respectfully recommend that your Honor deny the petition.


Petitioner's convictions arise from events occurring in the Manhattan apartment of Mr. and Mrs. William Ling on the morning of April 16, 1983. Construing the evidence at trial in the light most favorable to the state, see, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.), cert. denied, 488 U.S. 929, 109 S.Ct. 316, 102 L.Ed.2d 334 (1988); Garcia v. Warden, 795 F.2d 5, 6 (2d Cir. 1986), the following was established.

The Ling apartment occupies the third and fourth floors of a building located on East 37th Street. Mrs. Ling testified that when she and her husband were home, they kept the doors to the apartment on both the third and fourth floors unlocked. On the morning of April 16, 1983 Mrs. Ling was watching television in her bedroom in the back of the fourth floor, and Mr. Ling was downstairs in the kitchen area washing dishes. Mrs. Ling testified that she lit both of two lamps in the bedroom because it was a dark morning. At about 9:30 a.m. she heard her two small dogs begin to bark and then heard a door open. She turned around towards the open door to the bedroom, expecting to see her husband coming up the stairs, and instead saw petitioner entering the bedroom. She described him at trial as a tall black man, wearing a work shirt over a dirty red t-shirt, whose breath was foul and whose teeth were yellow and decayed. Mrs. Ling rose, walked to the door and told petitioner to go away. Petitioner instead closed the door behind him and did not reply. When Mrs. Ling reached for the door, petitioner told her not to touch it and to "shut up." He then removed a large screwdriver from his coat and again told her to "shut up" or he would hurt her with the screwdriver. Mrs. Ling offered him money to leave, but, she said, "he just said shut up, he would tell me what he wanted." Tr. 52.*fn1

Petitioner next maneuvered Mrs. Ling over to the bed and told her to lie down. The sexual assault followed, accompanied by threats of physical harm, and the details Mrs. Ling related in court are not necessary to recount herein. (See Tr. 56-57.) It suffices to say that there was assuredly sufficient evidence from which the jury could find that petitioner committed the crimes for which he was convicted. (Petitioner does not challenge here the sufficiency of the evidence). During the course of the sexual abuse, Mrs. Ling attempted to extricate herself. She testified that she maneuvered until she could feel that her body was on top of the screwdriver which petitioner had placed on the bed. Petitioner, apparently realizing her attempt to retrieve the screwdriver, said, "I am going to hurt you." Tr. 53. Mrs. Ling then grabbed the screwdriver, pushed petitioner away from her and jumped up, screaming for her husband and attempting to exit the room. Petitioner pulled her back, pushed her onto the bed and punched her in the head. At this point Mr. Ling, who had heard the commotion from downstairs, entered the bedroom and yelled, "Get off of her." He then pulled petitioner away from his wife and onto the floor and punched him in the face. Petitioner then hit Mr. Ling, who staggered backwards into a rocking chair, and petitioner shouted, "I'm going to get my screwdriver. I'm going to stick you." Tr. 54.*fn2

Mr. Ling, hoping to attract the attention of the tenants who lived on the second floor, went to the doorway of the apartment and began to call for help and run down the stairs. Petitioner then pushed Mr. Ling down the stairs, jumped over him and fled.*fn3 He left behind a dirty gray herringbone overcoat. Mrs. Ling found her husband lying at the bottom of the stairs covered with blood. She summoned emergency assistance, and the couple was taken by ambulance to Bellevue Hospital where Mr. Ling received seventeen stitches for a wound to his head and a splint for injuries to his foot.

Subsequently, Mrs. Ling identified petitioner from photographs, at a line-up and in court.*fn4 In addition to Mrs. Ling's identification and the testimony of both of the Lings, petitioner was linked to the crimes through circumstantial evidence provided by the testimony of Jennifer Barrows, program director for the First Moravian Church Coffee Pot, a "drop-in" center open around the clock at Lexington Avenue and East 30th Street. She testified that she knew petitioner as a client of the center who had come intermittently since May 1981. She was shown the gray herringbone overcoat recovered from the Lings' apartment and identified it as a coat she had seen petitioner wearing that winter. She remembered the coat because it was unusual for a client of the center to have such an overcoat.


Ground One

Petitioner's first claim herein, that comments by the Assistant District Attorney during his summation violated petitioner's right to a fair trial, arises from the following portion of the summation:

    MR. JACOBSON [prosecutor]: . . . Ladies and
  gentlemen, rape is probably one of the most horrible
  crimes one individual can commit against another.

MR. WOJSZWILO [petitioner's counsel]: Objection.

    THE COURT: Sustained. This is not an analysis on
  the nature of crimes. The jury is to disregard it
  totally. Follow my instructions, each of you. Rather,
  we are concentrating on the evidence and the laws and
  arguments that are based on them. You may proceed.
    MR. JACOBSON: I meant to say it is a very special
  crime in the way or the impression that it leaves on
  a victim by the very nature of the way the crime is
  committed. A rape victim sees her attacker like no
  other victim of crime.

MR. WOJSZWILO: Objection, your Honor.

    THE COURT: Sustained. We have no evidence
  whatsoever at this trial as a comparison of the view
  or impression of victims of rapes or attempted rapes
  and victims of any other crimes. The remarks of the
  Assistant District Attorney, accordingly, are
  stricken in this respect. They are improper and
  incorrect. They must be disregarded by you totally.
    Once again, I must ask you, will you each follow
  that instruction 100 percent. Thank you. Please
  confine yourself based on the argument of evidence.

Tr. 327-28. Petitioner contends that the prosecutor's remarks deprived him of a fair trial because they attempted to bolster otherwise weak identification evidence and to appeal to the jury to render a verdict based upon its emotional reaction to the crime.

The question for this court in the context of federal habeas corpus review is "whether the prosecutor['s] comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.' Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)." Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d 144 (1986). See also United States v. Pena, 793 F.2d 486, 490 (2d Cir. 1986); United States v. Wilkinson, 754 F.2d 1427, 1435 (2d Cir.), cert. denied sub nom. Shipp v. United States, 472 U.S. 1019, 105 S.Ct. 3482, 87 L.Ed.2d 617 (1985). The instant claim may be compared to one in Castro v. Sullivan, 662 F. Supp. 745 (S.D.N.Y. 1987), where the petitioner, Castro, was alleged ...

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