The opinion of the court was delivered by: PECK
TO THE HONORABLE MICHAEL B. MUKASEY, United States District Judge:
Petitioner Felix Romero has filed his second habeas corpus petition to this Court, alleging that: (1) his "due process rights were violated by police use of a suggestive identification procedure," because a photo array "exhibited [Romero] with a distinctive feature known to the witness;" (2) the evidence on which Romero's felony murder conviction was based was legally insufficient, because he lacked intent to commit the separate robbery of a store employee; (3) the evidence on which Romero's felony murder conviction was based was legally insufficient, because he lacked intent to aid in the commission of that separate employee robbery; (4) the evidence that a killing occurred in the course of the robbery of the employee was legally insufficient; (5) the evidence that a killing occurred in furtherance of the robbery of the employee was legally insufficient; (6) Romero's "due process rights were violated by police use of a suggestive identification procedure," as "there was evidence that [a key witness] did not have an independent source from which to make an identification;" (7) the "State did not prove an element of felony murder based on accessorial liability to robbery because the identity of the killer was not proven;" (8) "the New York State felony murder statute is unconstitutional;" (9) Romero's second trial, which followed an initial mistrial, violated his "constitutional right against double jeopardy;" (10) his "14th Amendment right to an impartial judge was violated;" (11) the judge improperly instructed the jury as to certain evidence that was not presented at the second trial; (12) the "conjunctive submission of felony murder, and the lesser included offense of robbery, violated [Romero's] due process rights;" and (13) the judge's charge to the jury was biased and failed to instruct on every element of the crime with which Romero was charged. (Petition, dated February 29, 1996 ["1996 Petition"], P 12.) Romero is represented in this 1996 Petition by new counsel, Wilson S. Hurd.
For the reasons set forth below, I recommend that for a writ of habeas corpus be denied because it is a successive petition and an abuse of the writ of habeas corpus.
On April 11, 1981, four men entered the Columbia Wine and Liquor Store in Manhattan. Romero v. Scully, 1991 U.S. Dist. LEXIS 26, 1991 WL 2998 at *1. The men, who were armed, forced Lee Dixon, an employee, and Robert Peterson, the store owner, into an office at the rear of the store. Id. One of the robbers then searched Allan Peterson, Robert Peterson's father, took $ 200 from Allan Peterson's pockets, and forced him into the back office. Id. Allan Peterson heard a gunshot, and saw that one of the gunmen, but he could not tell which, had shot his son in the back. After the shooting, the gunmen fled. Id. Robert Peterson died from the gunshot wound. Id.
On April 16, 1981, Romero and three other men were arrested in connection with an unrelated offense. Id. On April 17, 1981, the Daily News published an article about their arrest, accompanied by photographs of Romero and the three other men. Id. Allan Peterson called the police because he believed the men in the photograph were the same men who had robbed him and killed his son. Id. On April 24, 1981, the police showed Peterson four photo arrays, and on May 20, 1981, Peterson viewed four lineups. Id. at *2. Peterson identified Romero and one other suspect as two of the gunmen who had attempted to rob his liquor store. Id. The trial court found Peterson's identifications reliable and untainted by suggestiveness. Id.
After an initial mistrial, Romero's second jury trial resulted in his conviction on April 15, 1982 of murder in the second degree and robbery in the first degree. (Trial Transcript 803-04.) On May 14, 1982, Romero was sentenced to concurrent terms of imprisonment of eighteen years to life on the felony murder count and eight and one-third to twenty-five years on the robbery count. (Sentencing Minutes 13-14.)
The First Department affirmed Romero's conviction on January 15, 1987. People v. Romero, 126 A.D.2d 994, 510 N.Y.S.2d 405 (1st Dep't 1987). The New York Court of Appeals denied leave to appeal on May 12, 1987. People v. Romero, 69 N.Y.2d 1009, 517 N.Y.S.2d 1043 (1987).
In his first petition to this Court for a writ of habeas corpus, dated May 17, 1988, Romero claimed that: (1) the State failed to prove Romero's guilt beyond a reasonable doubt, because Allan Peterson's eyewitness identification was unreliable; (2) the identification procedures were tainted and prejudicial; (3) ineffective assistance of trial counsel; (4) the court erred in denying Romero's motion to suppress allegedly suggestive and tainted identifications; (5) the court violated Romero's due process rights by improperly marshalling evidence and prejudicially charging the jury; (6) the State "failed to prove [Romero] guilty of felony murder as there was no evidence that the murder was committed in the course of [or] in furtherance of, or in the immediate flight from, the commission of a robbery;" (7) "the Prosecutor . . . was guilty of misconduct," specifically an inflammatory summation "which, by reason of its cumulative effect, deprived [Romero] of a fair trial;" (8) the court erred in refusing to allow Romero to call an expert identification witness; (9) Romero was improperly denied his right to appear before the Grand Jury which indicted him. (Petition, dated May 17, 1988 ["1988 Petition"], P 12.)
This Court denied Romero's 1988 Petition on January 4, 1991. Romero v. Scully, 1991 U.S. Dist. LEXIS 26, 88 Civ. 4000, 1991 WL 2998 (S.D.N.Y. Jan. 4, 1991).
Romero filed a Notice of Appeal to the Second Circuit. (Notice of Appeal dated January 31, 1991.) Judge Tenney denied Romero a certificate of probable cause on March 1, 1991. (Order dated March 1, 1991.) Romero appealed the denial of a certificate of probable cause. (Notice of Appeal dated March 8, 1991.) The Second Circuit denied his motion and dismissed the appeal on August 15, 1991. (Notice dated August 15, 1991.) The Supreme Court denied certiorari on January 13, 1992. Romero v. Scully, 502 U.S. 1043, 112 S. Ct. 899, 116 L. Ed. 2d 801 (1992).
After his first (1988) federal habeas petition was denied, Romero filed state court collateral attacks on his conviction. On July 10, 1992, Romero filed a motion to vacate the judgment pursuant to N.Y. C.P.L. § 440 in the Supreme Court, New York County. (1996 Petition P 11(e).) The motion was denied on September 23, 1992. (Id.) Romero then filed a petition for a writ of habeas corpus on March 19, 1993 with the New York Supreme Court, Dutchess County. (Id., P 11(f).) The petition was denied, and the Second Department affirmed on May 23, 1994. (Id. P 11(g).) The Court of Appeals denied leave to appeal on September 26, 1995. (Id. P 11(h).)
Romero filed his current habeas petition with this Court on February 29, 1996. (See Romero's Br. at 68.) The petition was referred to me for a Report ...