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February 27, 1997

STANLEY MOORE, Petitioner, against CHARLES SCULLY, Respondent.

The opinion of the court was delivered by: EDELSTEIN

 EDELSTEIN, District Judge:

 Presently before this Court is the habeas corpus petition of Stanley Moore ("petitioner" or "Moore"), pursuant to Title 28, United States Code, Section 2254, seeking to vacate a judgment of conviction imposed on him by the Supreme Court of the State of New York, Bronx County, on February 24, 1983, for burglary in the first degree (New York Penal Law § 140.30[3]) and two counts of robbery in the first degree (New York Penal Law § 160.15[3]). Petitioner's conviction arose out of an incident that occurred on May 25, 1982. Petitioner was charged with driving a getaway car after his two co-defendants had burglarized a dwelling and robbed its occupants. The Appellate Division, First Department, affirmed petitioner's conviction without opinion, People v. Moore, 133 A.D.2d 551, 519 N.Y.S.2d 159 (N.Y. App. Div. 1987), and the New York Court of Appeals denied petitioner's leave to appeal. People v. Moore, 70 N.Y.2d 1009, 526 N.Y.S.2d 944, 521 N.E.2d 1087 (N.Y. 1988).

 On January 24, 1989, petitioner filed the instant habeas corpus petition. On September 1, 1989, Moore requested that his petition be held in abeyance so that he could challenge the constitutionality of his sentence in the New York State courts. On January 18, 1990, this Court adopted a recommendation of United States Magistrate Judge Nina Gershon ("Magistrate Judge Gershon"), and placed this case on the suspense docket.

 Petitioner then moved in the Supreme Court, Bronx County, to vacate the judgment and set aside his sentence, pursuant to New York Criminal Procedure Law sections 440.10 and 440.20. (Report and Recommendation of United States Magistrate Judge Nina Gershon, Moore v. Scully, 89 Civ. 0546 ("May 1994 Report") at 2 (May 4, 1994).) Petitioner's motion was denied on April 4, 1990. Id. On April 23, 1990, petitioner sought leave to appeal the denial of his motion to the Appellate Division, First Department, pursuant to New York Criminal Procedure Law section 460.15. Id. It is undisputed that petitioner's application was denied. Id. at 2 & n.1.

 On February 11, 1991, petitioner moved for a writ of error coram nobis in the Appellate Division, First Department, and on February 21 and May 6, 1991, filed "addendums" to his application. Id. at 2. The Appellate Division, First Department, denied petitioner's application for a writ of error coram nobis on May 30, 1991. Id. Petitioner filed a second petition for a writ of error coram nobis in the Appellate Division, First Department, on March 5, 1992. The court denied this second application on June 25, 1992. Id.

 On May 8, 1992, petitioner moved in the Supreme Court of the State of New York, Bronx County, for disclosure of his presentence report, pursuant to section 390.50 and 390.60 of the New York Criminal Procedure Law. Id. at 2-3. Petitioner argued that he was sentenced on the basis of misinformation in the presentence report, and that his presentence report was confused with his brother's. Id. at 3. The motion for disclosure was granted on June 24, 1992. Id.

 On November 12, 1992, petitioner reactivated the instant case by filing an amended petition. In this petition, Moore seeks this Court's review of his state conviction on five grounds: (1) the element of intent, necessary to prove guilt, cannot be inferred and was not established beyond a reasonable doubt; (2) the trial judge made several prejudicial errors in his charge to the jury; (3) there was prosecutorial misconduct at trial and on summation; (4) petitioner was denied effective assistance of both trial and appellate counsel; and (5) the maximum sentence imposed violated due process. Id.

 On May 4, 1994, Magistrate Judge Gershon recommended that Moore's petition be dismissed without prejudice "for petitioner's failure to exhaust state remedies as to all of his claims," under Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982). (May 1994 Report at 11-12.) Petitioner objected to Magistrate Judge Gershon's recommendation on grounds that "each of the alleged unexhausted claims referred to by Magistrate Gershon, under the circumstances, were adequately put before the state's highest court upon which relief could obtain," and that this Court thus should find "that the petitioner did exhaust his state remedies and rule thereon." Objection to Magistrate Report and Recommendation, Moore v. Scully, 89 Civ. 0546, at 1-3 (May 13, 1994).)

 In an order dated June 21, 1994, this Court referred Moore's petition back to Magistrate Judge Gershon for consideration of petitioner's claim on the merits. (Order, Moore v. Scully, 89 Civ. 0546 (June 21, 1994.) On November 22, 1995, Magistrate Judge Gershon issued a second Report and Recommendation regarding petitioner's claims. (Report and Recommendation of United States Magistrate Judge Nina Gershon, Moore v. Scully, 89 Civ. 0546 ("November 1995 Report") (Nov. 22 1995).) In the November 1995 Report, Magistrate Judge Gershon addressed the merits of each of petitioner's claims. Based on the relevant legal standards, Magistrate Judge Gershon rejected each of petitioner's claims, and found that his petition for a writ of habeas corpus should be denied. Id. at 24. On December 8, 1995, petitioner filed objections to the November 1995 Report. (Objection to Magistrate Report and Recommendation, Moore v. Scully, 89 Civ. 0546 (Dec. 4, 1995).)


 Magistrate judges are empowered by statute to preside over pretrial matters on appointment by a district judge. 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72. Where, as here, a Magistrate Judge is "assigned without consent of the parties to hear a pretrial matter dispositive of a claim or defense of a party or a prisoner petition challenging the conditions of confinement . . . the magistrate judge shall enter into the record a recommendation for disposition of the matter, including proposed findings of fact where appropriate." Fed. R. Civ. P. 72(b).

 Under Federal Rule of Civil Procedure ("Rule") 72(b), and Title 28, United States Code, Section 636(b)(1)(A), a district court evaluating a magistrate judge's recommendation is permitted to adopt those portions of the recommendation to which no specific objection is made, as long as those sections are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 149, 106 S. Ct. 466, 471-72, 88 L. Ed. 2d 435 (1985); see also Ehinger v. Miller, 942 F. Supp. 925, 927 (S.D.N.Y. 1996); Washington v. Lenihan, 1996 U.S. Dist. LEXIS 8689, 87 Civ. 4770, 1996 WL 345950 (S.D.N.Y. June 21, 1996). Where a party makes a "specific written objection" within "[ten] days after being served with a copy of the [magistrate judge's] recommended disposition," Fed. R. Civ. P. 72(b), however, the district court is required to make a de novo determination regarding those parts of the report. United States v. Raddatz, 447 U.S. 667, 676, 100 S. Ct. 2406, 2412-13, 65 L. Ed. 2d 424 (1980).

 The term "de novo determination" has "an accepted meaning in the law. It means an independent determination of a controversy that accords no deference to any prior resolution of the same controversy." Id. at 690, 100 S. Ct. 2406, 2419, 65 L. Ed. 2d 424 (Stewart, J., dissenting); see also Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (11th Cir. 1988). Therefore, de novo review "means reconsideration afresh by the district judge in this sense: no presumption of validity applies to the magistrate's findings or recommendations." 7 Pt. 2 James Wm. Moore, Moore's Federal Practice, P 72.04[10.-2], at 72-96 (1995). If the district court disagrees with the magistrate judge's proposals, or any part of them, the judge is free to substitute his own view for that of the magistrate judge without any threshold finding whatsoever. Id. However, while the district court is not required to conduct a new hearing regarding a party's objections to the magistrate judge's recommendations, it is required to review the record of the proceedings before the magistrate judge Id. at P 72.04[10.-2], at 72-98.

 In addition, "the district judge retains the power to engage in sua sponte review of any portion of the magistrate's report and recommendation, regardless of the absence of objections." 7 Pt. 2 Moore's Federal Practice, P 72.04[10-1], at 72-95. Such sua sponte review "may be under a de novo standard, or any lesser standard of review." Id. In making its review, "the district judge may accept, reject or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Fed. R. Civ. P. 72(b).

 Because plaintiff timely filed objections to the Report, this Court is required to undertake a de novo review of the motions underlying Magistrate Judge Gershon's Report. Fed. R. Civ. P. 72(b). This Court first will review the facts underlying Magistrate Judge Gershon's November 1995 Report before reviewing the findings and recommendations contained in her November 1995 Report.

 I. Facts Underlying the November 1995 Report

 Petitioner and his brother Terry Moore ("Moore") were tried jointly for the May 25, 1982, robbery of Joseph Bellantone and his sister Grace Bellantone in Joseph Bellantone's apartment, located in a three-family house. (November 1995 Report at 2.) Joseph Bellantone and his sister Rose Manzella, who lived downstairs but was present during the robbery, identified Terry Moore as one of two men who entered the Bellantone home and committed the robbery. Id. Roberto Gonzalez and Peggy Lee, neighbors of the Bellantones, testified that they saw defendant Stanley Moore driving the "getaway" car for the two robbers. Linda Ray, an employee of Williams Garage, testified that Stanley Moore leased a cab from the Garage which fit the description of the car seen by Gonzalez and Lee. Id.

 Joseph Bellantone testified that at approximately 11:00 a.m. on May 25, 1982, he went to the front door of his apartment to put the mail out for the mailman and encountered two men in the doorway. Id. They asked Bellantone whether "Anthony" was there, and Bellantone responded that no one named Anthony lived there. The two men then pushed their way into the apartment as Bellantone was shutting the door. Id. at 2-3. Bellantone referred to the two men as the "taller" one, at a height of approximately six feet, one inch, and the "shorter" one, at a height of five feet, eleven inches, and identified Terry Moore as the taller of the two. Id. at 3. He testified that Terry Moore punched him and threw him on the floor. Id. The two men then proceeded into the bedroom of his sister, Grace, who was bedridden, and began putting jewelry and trinkets in a pillowcase and demanding money from Grace. Id.

 Joseph Bellantone testified that his sister Rose Manzella then came into the apartment. Id. The shorter of the two men grabbed her by the throat and put her on the bed in Grace's room. Id. Terry Moore found $ 2,000 in one of Grace's drawers and put it in his stocking. Id. At that time, Grace tipped over the phone, and the shorter man handed Terry Moore a knife to cut the phone cord. Id. Terry Moore then placed the knife to Grace's neck and said "that's how I could cut your throat too." Id. Later, he picked up the mattress on which Grace was lying, throwing her against the wall. Id. Finding no money, he grabbed Joseph Bellantone and demanded to know where more money could be found. The shorter man then came into the room and said "come on . . . let's go." Id.

 Joseph Bellantone testified that the entire incident lasted approximately thirty minutes. Id. When the two men left the apartment, they took Joseph Bellantone to the vestibule. Id. After they existed, one of them tried to reenter the house but Joseph Bellantone locked the door. Id. at 3-4. Joseph Bellantone then went to the window and saw a car speed away. Id. at 4.

 Rose Manzella identified Terry Moore, in a lineup and at trial, as one of the two men who had robbed the home of her brother and sister. Id. She testified that, after she entered the apartment, the men told her "we have weapons" and that she saw both men with knives. Id. The "short fella" handed the "tall fella" a knife, and the "tall fella" cut the phone cord. Id. She testified that the incident lasted approximately twenty minutes.

 Roberto Gonzalez ("Gonzalez"), a stockbroker and lieutenant in the Army Reserves who lived across the street from the Bellantones, testified that he was walking his dog on May 25, 1982 at approximately 11:20 a.m. Id. He noticed a man in front of the Bellantones' house looking at a piece of paper. Id. Gonzalez saw the man, whom he described as six feet three inches tall, weighing 165-175 pounds, wearing a maroon windbreaker, cap, dungarees and sneakers, enter the Bellantone house. Id. He then noticed a "bluish greenish" Plymouth Fury idling on Duncan Avenue. Id. His attention was drawn to the car because there are no stop signs on Duncan where the car was stopped. He testified that he looked at the driver, "eye to eye," from approximately fifteen feet away for eight to ten seconds. Id. He made an in court identification of Stanley Moore as the driver of the car. Id.

 Gonzalez testified that he then began to look for his dog and heard the car "screech out from behind and start up towards Paulding, towards 3235 [the Bellantone house]," where it stopped. Id. at 4-5. He then saw two men running out of the Bellantone residence. One of them stopped and tried to reenter the house. Id. at 5. The two men then ran to the car. Id. Gonzalez concentrated on the license plate number of the car, which he later gave to the police. Id. He testified that the entire event, beginning with his observation of a man entering the Bellantone house, lasted approximately seven minutes. Id.

 Peggy Lee, who lived next door to the Bellantones, testified that she was taking out her garbage at approximately 11:20 or 11:30 a.m. when she noticed a "bluish green" car with the passenger side door open. Id. She continued on her way to take the garbage out and then saw the car in front of the Bellantone house and saw "a guy get out of the car, stand up and he was saying, 'Come on. Come on. Come on. Let's go. Let's go. Let's go.'" Id. The man was facing the Bellantone house. Id. She identified Stanley Moore, in court, as the man she saw in the car. Id. She then saw "two black men -- young boys -- running out of Joe's house down the steps and they was laughing [sic]. They got in the car and it pulled off." Id. On cross-examination, defense counsel elicited that Lee had testified at the Grand Jury that she saw two people go into the Bellantone house and then saw them come out three to five minutes later. Id.

 Police Officer Ronald Mafaraci testified that he tested the Bellantone house for fingerprints following the robbery and found one latent print on the television set. Id. Police Officer Joseph Bergen testified that he compared the print recovered by Officer Mafaraci to the prints of Joseph Bellantone, Armando ...

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