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BOYD v. HAWK

July 24, 1996

MARKEITH BOYD, Petitioner, against KATHLEEN HAWK, Commissioner, Federal Bureau of Prisons, Respondent.


The opinion of the court was delivered by: PECK

REPORT AND RECOMMENDATION

 TO THE HONORABLE DEBORAH A. BATTS, United States District Judge:

 By Report and Recommendation dated May 7, 1996, I recommended that the Court deny petitioner Markeith Boyd's petition for a writ of habeas corpus because it was a "mixed" petition containing both exhausted and unexhausted claims. On May 20, 1996, Boyd filed a document styled "Objections to Report and Recommendation" that requested that his petition be deemed amended to delete all unexhausted claims. By Order dated May 31, 1996, Judge Batts affirmed and adopted my Report and Recommendation and re-referred the case to me to consider Boyd's exhausted claims on the merits.

 This Report and Recommendation, therefore, considers the merits of the following claims raised by Boyd: (1) "the trial court erred in denying Boyd's motion to suppress certain statements made in violation of his right to remain silent"; (2) he "received ineffective assistance of trial counsel"; and (3) "the court failed to inspect grand jury minutes, abrogating the court's jurisdiction, and violating the due process and equal protection clauses of the Constitution." (Boyd's 5/20/96 "Objections," amending Petition, dated 9/16/94, PP 12(a), 12(f), 12(g) & 12(i).) *fn1"

 For the reasons set forth below, I recommend that Boyd's petition for a writ of habeas corpus be denied.

 FACTS

 The Robberies

 On six separate occasions between August 20, 1989 and August 31, 1989, Boyd robbed three A to Z Luggage stores located in Manhattan. (E.g., Trial Transcript ["Tr."] 22.)

 At 9:30 A.M. on August 20, 1989, Boyd entered the A to Z Luggage store on 7th Avenue and 52nd Street. (Tr. 55-57, 200-03.) Boyd displayed a silver gun and demanded money from store employee Ghislaine Viard. (Tr. 57-59.) Viard gave Boyd the money, Boyd fled and Viard called the police. (Tr. 58.)

 Later on August 20, 1989, at 5:00 P.M., Boyd robbed an A to Z Luggage store on 5th Avenue. (Tr. 112-14, 127.) Boyd displayed a silver gun, said this was a robbery, and ordered employees Phil Majeski and Leon Burt to give him the money from the cash register, as well as the prior business day's receipts. (Tr. 114-17, 131-33.) Boyd also demanded Majeski and Burt's personal money. (Tr. 117-18, 134.) Majeski and Burt surrendered the prior business day's receipt and about $ 220 of their personal money. (Tr. 117-19, 134-36.) Boyd left the store, and the police were called. (Tr. 119.)

 On August 24, 1989 at 9:30 A.M., Boyd returned to the 7th Avenue store, again displaying a silver gun and demanding money from the cash register. (Tr. 63, 165, 205-06.) Viard and another employee, Benny Rosas, recognized Boyd from the August 20, 1990 robbery. (Tr. 63-64, 205-06, 216.) The store manager, Howard Slotnick, gave the money to Boyd, who fled; Slotnick called the police. (Tr. 63-64, 166-68.)

 Five days later, on August 29, 1989 at 8:30 A.M., Boyd walked into the A to Z Luggage store on Beaver Street. (Tr. 30-31, 37, 143-44.) Peppy Feller, an employee, recognized Boyd as an acquaintance of a former store employee. (Tr. 31-33, 49, 51.) Boyd pointed a silver gun at another employee, Sol Tabakin, and demanded money from the cash register. (Tr. 33, 41-43, 45, 87, 144-46.) Tabakin gave Boyd the money from the register, Boyd fled and Tabakin called the police. (Tr. 34, 44-46, 146.)

 At 5:00 P.M. on August 29, 1989, Boyd returned to the Beaver Street store, again aimed a gun at Tabakin and demanded the money from the cash register. (Tr. 90-91, 146.) Tabakin and Norman Spector, another employee, recognized Boyd from that morning's robbery. (Tr. 90, 146.) Because the cash registered jammed, Boyd took a bag of money from a drawer near the cash register and fled. Tabakin called the police. (Tr. 91-92, 146-47.)

 On August 31, 1989 at 7:30 P.M., Boyd returned to the 7th Avenue store. (Tr. 168-69, 209.) Boyd pointed "the same silver handgun that he had previously" at Slotnick and demanded money. (Tr. 169-70, 209-10.) Slotnick and Rosas recognized Boyd from the previous robberies. (Tr. 168, 209.) Slotnick gave Boyd the money from the cash register, and Boyd fled. (Tr. 170, 211.) Slotnick called the police while Rosas followed Boyd. Rosas saw Boyd get into a car, noted the car's license plate number, and gave it to the police. (Tr. 170-71, 211-14, 244-45.) The police traced the car to Budget Rent-a-Car, who advised the police that the car was rented to a woman and that Boyd was listed as a second driver on the rental agreement. (Tr. 245-47, 250-51.)

 Boyd's Arrest

 The police showed Rosas and Slotnick a photo array, and they identified Boyd's photo as that of the robber. (Tr. 184, 241-42, 248-49.) Boyd was arrested at around 12:30 P.M. on September 5, 1989 by Detectives Michael Kennedy and Mordecai Dzihansky. (Tr. 254-56, 263-65.) Detective Kennedy read Boyd his Miranda rights. *fn2" (Tr. 257-58.) Boyd said he was willing to answer questions. (Tr. 258.) Detective Kennedy informed Boyd that he was under arrest because a witness to a robbery had followed the robber to a car that was traced to Boyd. (Tr. 258.) Boyd stated that he often lent his vehicle to a friend who closely resembled him. (Tr. 259, 266.) Boyd, however, refused to identify this friend, and the conversation ended. (Id.)

 At the police precinct, at around 2:10 P.M., Detective Kennedy again read Boyd his Miranda rights. (Tr. 269-70.) Between 4:45 and 5:15 P.M., Detective Dzihansky read Boyd his third Miranda warning. (4/25/90 Hearing Tr. 48-50.) Boyd stated that he had nothing to say. (Id. at 51.)

 At around 6:00 P.M., Police Officer Michael Bachety, without reading Boyd a Miranda warning, told Boyd that the police had a search warrant, that they intended to search Boyd's residence for the silver gun, and it would save his wife trouble if Boyd told them where the gun was. (Tr. 260.) Boyd replied that the gun was not in the apartment, and that he had returned it to a friend. (Id.)

 At 6:15 P.M., as Boyd was being transported to central booking, Detective Fisher reminded Boyd that he was "still under Miranda," and asked why Boyd was robbing luggage stores. (4/25/90 Hearing Tr. 52.) Boyd replied that it was "a long involved story." (4/25/90 Hearing Tr. 52-53; Tr. 398.)

 Boyd's Trial Testimony

 Boyd testified in his own defense at trial. (Tr. 339-99.) He testified that he was friends with Walter Moore, an employee at A to Z Luggage's Beaver Street store, and that he visited Moore at work. (Tr. 341-46.) Boyd became friends with employees at other A to Z stores. (Tr. 342-43.) Boyd testified that the A to Z employees came up with a scheme in which he would pick up money from them, they would report a robbery, and they would later split the money. (Tr. 349-53, 359, 361-65.) He testified: "So I was involved in a scheme, I do admit it." (Tr. 350.) Boyd said that while there were seven counts in the indictment, he did it "on at least twelve or thirteen different occasions." (Tr. 350.) Boyd's "cut" from the scheme was around $ 1,500. (Tr. 388.) But Boyd said he never had a gun. (Tr. 378.)

 The A to Z employees denied at trial that they were involved in any scheme with Boyd. (Tr. 81-82, 137-38, 158-59, 173, 188-89, 224, 408-10.)

 Boyd's Indictment, Conviction and Subsequent Procedures

 On September 7, 1989, Boyd was indicted for six counts of robbery in the first degree. (9/7/89 Calendar Call Tr. at 2.) On February 23, 1990, a second grand jury indicted Boyd with a seventh count of robbery in the first degree, arising out of the August 20, 1989 robbery of the 7th Avenue store. The indictments were consolidated on March 20, 1990. (3/20/90 Calendar Call Tr. at 2.)

 On May 29, 1990, Boyd was convicted of seven counts of robbery in the first degree and sentenced, as a second felony offender, to seven consecutive terms of five to ten years imprisonment. See People v. Boyd, 202 A.D.2d 234, 608 N.Y.S.2d 224, 225 (1st Dep't 1994).

 Boyd's post-trial procedural history is set forth in this Court's May 7, 1996 Report and Recommendation (at pages 2-4), ...


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