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BOYD v. HAWK

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


April 30, 1997

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

The opinion of the court was delivered by: BATTS

ORDER

 DEBORAH A. BATTS, United States District Judge.

 On July 24, 1996, Magistrate Judge Andrew J. Peck issued a Report and Recommendation recommending that Petitioner's habeas corpus petition be denied. See 28 U.S.C. § 636(b)(1)(c); Local Civil Rule 72.1(d). Petitioner has filed objections to the Report and Recommendation. 28 U.S.C. § 636(b)(1)(C) requires the Court to make a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." After conducting a de novo review, the Court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the Magistrate. 28 U.S.C. § 636(b)(1)(C); see also Local Civil Rule 72.1(d).

  The facts in this matter are sufficiently set forth in Judge Peck's Report and Recommendation and will not be repeated here. Judge Peck addressed the following three claims raised by Petitioner: (1) "the trial court erred in denying Boyd's motion to suppress certain statements made in violation of his right to remain silent"; (2) Petitioner "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."

 In discussing Petitioner's claim that the trial court erred in denying his motion to suppress statements made in violation of Petitioner's right to silence, Judge Peck applied the harmless error standard set forth in Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705 (1967) ("before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt"). On collateral habeas corpus review, the onerous Chapman standard has been replaced by the Kotteakos harmless-error standard, which examines whether the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722, 123 L. Ed. 2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct. 1239, 1253, 90 L. Ed. 1557 (1946)). Under this standard, a Petitioner is not entitled to habeas relief based on trial error unless he or she can establish that the error resulted in actual prejudice. Brecht, 507 U.S. at 637, 113 S. Ct. at 1722.

 Applying the Kotteakos harmless-error standard to Petitioner's claim that the trial court erred in denying his motion to suppress statements, this Courts nevertheless reaches the same conclusion as Judge Peck did in his Report and Recommendation, and finds that the trial court's admission of Petitioner's statements was harmless error. The Court concludes that, under the Kotteakos harmless-error standard, the trial court's error in admitting Petitioner's statements did not have a substantial and injurious effect or influence in determining the jury's verdict. The Court thus adopts and affirms the recommendations of Judge Peck in their entirety.

 Petitioner's habeas petition is denied in its entirety. As Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253, as amended by the Antiterrorism and Effective Death Penalty Act of 1996. See also Rodriquez v. Scully, 905 F.2d 24 (2d Cir. 1990) (per curiam) (discussing certificate of probable cause under standard prior to amendment of 2253); Alexander v. Harris, 595 F.2d 87, 90-91 (2d Cir. 1979). The Court certifies 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, 8 L. Ed. 2d 21, 82 S. Ct. 917 (1962).

 SO ORDERED

 DATED: New York, New York

 April 30, 1997

 DEBORAH A. BATTS

 U.S.D.J.

19970430

© 1992-2004 VersusLaw Inc.



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