The opinion of the court was delivered by: Sprizzo, District Judge.
The above-captioned action having come before this Court, and
Magistrate Judge Peck having filed a Report and Recommendation dated May
7, 1999, recommending that the petitioner's petition be denied, and the
Court having extended petitioner's time in which to file objections to
the Report and Recommendation, and the petitioner having filed an
objection dated June 11, 1999, and the Court having considered all
matters raised, it is
ORDERED that the Court adopts Magistrate Judge Peck's Report and
Recommendation, and it is further
ORDERED that the instant petition shall be and hereby is dismissed, and
it is further
ORDERED that as petitioner has not made a substantial showing of the
denial of a constitutional right, see 28 U.S.C. § 2253, no
certificate of appealability shall issue, and it is further
ORDERED that the Clerk of Court shall dismiss the above-captioned
REPORT AND RECOMMENDATION
PECK, United States Magistrate Judge.
To the Honorable John E. Sprizzo, United States District Judge.
Petitioner Tracy Howard seeks a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, from his conviction of five counts of first degree
robbery. (Pet. ¶ 1; Howard Br. at 2.)*fn1 See People v: Howard,
235 A.D.2d 232, 232, 653 N.Y.S.2d 102, 103 (1st Dep't), appeal denied,
89 N.Y.2d 1036, 659 N.Y.S.2d 867, 681 N.E.2d 1314 (1997). Howard's
petition alleges that (1) the state unconstitutionally consolidated the
two indictments under which he was convicted (Pet. ¶ 12(A)); (2) he
was denied his constitutional right to a speedy trial (Pet. ¶
12(B)); and (3) suggestive pretrial identifications deprived him of due
process (Pet. ¶ 12(C)).
For the reasons set forth below, I recommend that Howard's petition be
denied. Howard's identification and unconstitutional consolidation of
indictments claims are unexhausted, not amenable to further state court
review, and therefore procedurally barred from habeas review; Howard's
constitutional speedy trial claim is ripe for habeas review but is
meritless under the four-part balancing test set down by the Supreme
Court for use in analyzing speedy trial claims.
On April 17, 1990, a Bronx Grand Jury indicted Howard (Indictment No.
3259-90) for acting in concert to commit five counts each of first and
second degree robbery (and related lesser offenses), in connection with
two robberies at a grocery store at 822 Morris Avenue on January 15,
1990, and March 4, 1990. (Koplin Aff. ¶ 4 & Ex. 2: State 1st Dep't
Br. at 3; Koplin Aff. Ex. 1: Howard 1st Dep't Br. at 4, 11, 25; Howard
Br. at 6.)
On July 31, 1990, a Bronx Grand Jury filed a second indictment (No.
5932-90) accusing Howard of acting in concert to commit three counts each
of robbery first and second degree robbery in connection with a robbery
of the Melisa Grocery at 614 Morris Avenue on March 17, 1990. (Koplin
Aff. ¶ 5 & Ex. 2: State 1st Dep't Br. at 3; Koplin Aff. Ex. 1:
Howard 1st Dep't Br. at 4, 11, 25; Howard Br. at 6.)
The State moved to consolidate indictments 5932-90 and 3259-90 pursuant
to N Y CPL § 200.20(2)(c) "on the grounds that both indictments
alleged incidents of armed robberies that are 'the same or similar in
law.'" (Koplin Aff. Ex. 1: Howard 1st Dep't Br. at 25; see also Koplin
Aff. ¶ 6 & Ex. 1 at 11, 13; Howard Br. at 6.) On December 19, 1990,
the Supreme Court granted the consolidation, with leave for Howard to
renew his objection at a later date. (Koplin Aff. ¶ 6 & Ex. 2: State
1st Dep't Br. at 13; Koplin Aff. Ex. 1: Howard 1st Dep't Br. at 12, 25;
Howard Br. at 7.)
On June 28, 1991, Howard's attorney renewed his objection on the ground
that consolidation would be "overly prejudicial" to Howard:
I think that there's three matters that we have to
take up, . . . and the third matter is the matter of
the consolidation of the two indictments.
If Your Honor will recall, back — I don't have a date on it. The
District Attorney's Office made a motion to consolidate the two
indictments before Your Honor, Your Honor granted "that motion but gave
me leave to reargue your order granting a consolidation after the Wade
Hearings were concluded.
Now, the basis of my argument to prevent a consolidation of the two
indictments was, number one, that it would be overly prejudicial for
Mr. Howard to go to trial on three separate robberies rather than the
two robberies that involved the same witness and that is on Indictment
3259 of 1990.
We now have a situation where he would be going to trial on three
separate robberies, on three separate dates, two of those would involve
the same store and the same alleged witness, but the third one was on a
different date involving different witnesses.
So, in addition to the prejudicial effect that I think it would
have, we also have, a situation here where the identification
testimony, I believe, on Indictment 3259 of 1990 is much stronger than
the identification testimony on Indictment Number 592 of 1990. . . .
[T]herefore, if a jury felt that Mr. Howard was involved in the
robberies charged in 3259, they might also convict him for the robbery
in 592; although the evidence of identification in that matter was
(6/28/91 Wade Tr. at 30-33.) The trial court denied Howard's objection,
thus reaffirming the consolidation. (Id. at 46.)
On September 26, 1991, Howard's scheduled trial date, Howard's counsel
filed a motion to dismiss pursuant to N.Y. CPL § 30.30 and the Sixth
Amendments, alleging denial of the right to a speedy trial. (See 10/24/91
Duffy Op. at 1.) The trial court denied the motion, holding:
As to that branch of defendant's motion for
dismissal of the charges based I upon the Sixth
Aniendment to the United States Constitution, it is
denied. No facts have been set forth to support the
assertion that defendant's constitutional right to a
speedy trial has been denied in this matter. (See
People v. Taranovich, 37 N.Y.2d 442, 373 N.Y.S.2d 79,
335 N.E.2d 303).
The Court accordingly now turns to the second branch
of defendant's motion based upon statutory "speedy
trial" considerations under CPL § 30.30. . . .
From these calculations, the Court determines that
the defendant has shown, by his papers, that the
People are chargeable with no more than 156 days. As
this is well within the 183 day statutory period, the
defendant has failed, in his papers, to show the
People have exceeded their time.
(10/24/91 Duffy Op. at 3.)
Howard's trial began in November 1991 (Tr. at 1-2, 18, 19), and on
December 10, 1991, the jury convicted Howard on the two consolidated
indictments of five counts of first degree robbery, finding him not
guilty of two additional first degree robbery counts. (Tr. at 615-21.) On
January 27, 1992, Howard was sentenced to five concurrent terms of seven
to twenty-one years, to run consecutively to a two to six year sentence
he had previously received in New York County for another robbery.
(1/27/92 Sentence Tr. at 9; Koplin Aff. ¶ 7; Howard Br. at 9) See
also People v. Howard, 235 A.D.2d 232, 232; 653 N.Y.S.2d 102, 102-03 (1st
In March 1996, Howard appealed his January 27, 1992 Bronx conviction on
the grounds that: (1) the trial court erred in consolidating the two
indictments; (2) the trial court erred in denying his motion to dismiss
on speedy trial grounds pursuant to CPL § 30.20 and CPL § 30.30
and his constitutional rights; and (8) the conviction on indictment
5932-90 should be reversed since the complainant's trial identifications
were tainted by unduly suggestive pretrial ...