The opinion of the court was delivered by: SCHEINDLIN
SHIRA A. SCHEINDLIN, U.S.D.J.:
Petitioner James Tyson seeks a writ of habeas corpus challenging his Supreme Court, Bronx County conviction for rape in the first degree. Part of the evidence presented against Tyson at trial consisted of a tape recorded telephone conversation in which a person identifying himself as "Tyson" did not deny committing the rape when so accused by the complaining witness. Before the trial began, Tyson asked the trial court for funds to hire an expert witness to verify his contention that the voice on the tape was not his. This request was denied, and Tyson was convicted.
On appeal, the Appellate Division, First Department, held that the trial court had erred in refusing to provide the requested expert. However, it did not grant Tyson a new trial; instead, it held his conviction in abeyance so an expert could be retained and an appropriate study completed. If the expert were to conclude that the voice on the tape was not Tyson's, according to the court, an evidentiary hearing would have to be held to determine the admissibility of the expert's testimony. Tyson sought leave to appeal the decision not to grant a new trial; this application, however, was denied by the Court of Appeals.
Pursuant to the Appellate Division's ruling, Tyson retained an expert witness and a study was conducted. The expert concluded that, contrary to Tyson's testimony at trial, the voice on the tape was indeed his. However, the expert also concluded, in light of "linguistic discourse analysis," that the conversation was not probative of Tyson's guilt. Specifically, the expert found that Tyson's speech impediment, combined with the complainant's verbal assertiveness, might have prevented Tyson from making a denial when the complainant accused him of rape.
The Appellate Division then affirmed Tyson's conviction, and leave to appeal to the Court of Appeals was denied. Tyson filed this petition on October 25, 1996. The petition was referred to Magistrate Judge Peck for a Report and Recommendation. On November 19, 1997, the Magistrate issued a Report recommending that the petition be denied. The Magistrate did not address the question of whether the trial court erred in refusing funding for the expert; instead, he suggested that the error, if any, was harmless.
Though he concurred in the Magistrate's proposed result, the respondent made two objections to the Report: 1) that it characterized the crime at issue as a "date rape," and 2) that it did not address respondent's argument that Tyson is procedurally barred from raising his Constitutional claims in this action. Tyson objected to the Report's "harmless error" analysis. After consideration of these objections and a de novo review of the record, I accept and adopt the thoughtful and thorough Report of the Magistrate.
Under 28 U.S.C. § 636(b)(1)(A) and (B), a designated magistrate judge may issue a Report and Recommendation regarding a motion for summary judgment. The parties are given ten days to object to such a report; after objections are received, the district court must review de novo those portions of the report to which objections are made. In this case, each party filed timely objections which are considered below.
III. Objections to the Magistrate's Report
A. The Respondent's Objections
1. Use of the term "date rape"
The respondent first objects to the fact that the Report refers to the crime at issue as a "date rape." The basis of this objection is a distinction the respondent draws between "date rape" and "forcible rape," and an implicit assertion that "date rape" is a crime of lesser gravity. See Respondent's Objections to Report and Recommendation at unnumbered pages 1-2 (objecting to the Report's use of the words "date rape" because "the harrowing account given at trial by [the complainant] clearly established . . . that petitioner was guilty of forcible rape."). It need hardly be said, of course, that no distinction between "date" and "forcible" rape exists in the law. See N.Y. Penal Law § 130.35 (McKinney 1997) (making no special provisions for "date rapes"). Moreover, the respondent's apparent belief that rape is a less serious crime if it happens to occur during a date is as repugnant as it is unsupported. That such a theory would even be advanced in a brief submitted by one of our city's major prosecutorial offices is deeply troubling.