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ALVAREZ v. KEANE

April 11, 2000

LLOYD ALVAREZ, PETITIONER,
V.
JOHN P. KEANE, SUPERINTENDENT, SING SING CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Block, District Judge.

  MEMORANDUM AND ORDER

By petition dated February 26, 1996, Lloyd Alvarez ("Alvarez") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This Court referred his petition to Magistrate Judge Marilyn Dolan Go, who issued a Report and Recommendation ("R & R") on January 19, 2000, recommending that the petition be denied.*fn1 In the R & R, Magistrate Judge Go concluded, inter alia, that 1) the admission of the in-court identifications of Alvarez by Ernest Cameron ("Cameron") did not violate Alvarez's due process rights, and 2) following his retrial after a successful appeal, Alvarez was not sentenced in violation of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), which prohibits vindictive sentencing. Alvarez timely filed objections to the R & R, arguing that the R & R should not be adopted because: 1) the trial court erroneously failed to assess the reliability of Cameron's in-court identifications and should not have admitted them into evidence, and 2) he was entitled to a presumption that the second sentencing judge was vindictive, a presumption the government has failed to rebut, because following his second trial he received a greater sentence than he had received after his first trial.

A district court reviewing a magistrate judge's R & R applies the standards in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1), which permit the court to adopt those parts of the report to which no specific objection is raised. See Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). With respect to those parts of the report to which any party objects, the court must make a de novo determination. See United States v. Raddatz, 447 U.S. 667, 673-76, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). If neither party objects to the report, the court may adopt the recommendations of the magistrate judge, but is not obligated to do so. See Grassia, 892 F.2d at 19. In light of the fact that Alvarez has only objected to certain portions of the R & R, the Court adopts without review the portions of the R & R to which he has not objected, and conducts a de novo review of those portions which Alvarez challenges.

I. In-court Identifications

Although Alvarez does not object to the Magistrate Judge's conclusion that the pretrial identification procedures were not suggestive, he argues that the state court improperly admitted the allegedly unreliable in-court identifications made by Cameron at the suppression hearing and at the second trial, and that on-the-record comments made by the hearing and trial judges should be considered to be incomplete evaluations of the reliability of the identifications. Specifically, "Petitioner contends that the trial court erred by permitting an in-court identification of Petitioner without first determining whether the identification was independently reliable. Petitioner argues that the hearing or trial court was required to make specific findings on the [] factors before allowing identification." Petitioner's Objections at 2. "Petitioner claims that in addressing the identification issue, the court failed to assess adequately the factors set forth in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), before making its determination, in violation of the Due Process Clause." Petitioner's Objections at 3.

The R & R correctly states the relevant law in that a court is not required to assess the reliability of an identification if the identification procedures were not suggestive. The two-step inquiry for evaluating the constitutional permissibility of in-court identification testimony based on out-of-court identification procedures "`requires a determination of whether the identification process was impermissibly suggestive, and if so, whether it was so suggestive as to raise a very substantial likelihood of irreparable misidentification.'" See United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994) (quoting Jackson v. Fogg, 589 F.2d 108, 111 (2d Cir. 1978)) (internal quotation marks and citation omitted).

Where the pretrial identification procedures used with a given witness have been impermissibly suggestive, a later in-court identification by that witness will violate due process unless the incourt identification is shown to have reliability independent of those procedures. . . . On the other hand, if the procedures were not impermissibly suggestive, independent reliability is not a constitutionally required condition of admissibility, . . . and the reliability of the identification is simply a question for the jury.

Jarrett v. Headley, 802 F.2d 34, 42 (2d Cir. 1986) (citations omitted); see Wong, 40 F.3d at 1359 (quoting Jarrett, 802 F.2d at 42); Bond v. Walker, 68 F. Supp.2d 287, 303-05 (S.D.N.Y. 1999) (collecting cases). Since Jarrett, the Second Circuit has reiterated that a reliability analysis is only necessary when the pretrial identification procedures were suggestive; if they were not, the identification is admissible without an evaluation of its reliability. See Sims v. Sullivan, 867 F.2d 142, (2d Cir. 1989) ("Because the pretrial procedures in the instant case were not unduly suggestive, and thus did not taint the in-court identification, we need not address the question of the reliability of the [witness]'s identification of [the defendant]."); see also Wray v. Johnson, 202 F.3d 515, 523 (2d Cir. 2000) (evaluating reliability analysis "[i]n the context of an identification following a police procedure that was impermissibly suggestive"); Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir. 1998) (requiring a reliability analysis "[i]f the pretrial procedures were impermissibly suggestive"); United States v. Ciak, 102 F.3d 38, 42 (2d Cir. 1996) ("[w]here, as here, there is the potential taint of suggestive pre-trial identification procedures," the court must assess the reliability of the identification).

A review of the record supports Magistrate Judge Go's conclusion that the pretrial identification procedures were not suggestive. As a result, the hearing and trial judges were not required to elicit evidence regarding, or assess, the reliability of the identifications. Thus, even if they did make imperfect assessments, their alleged failure does not provide a ground for habeas relief because the assessments were not required.

II. Sentencing

Following his first conviction at trial before Justice John Starkey, Alvarez was sentenced to concurrent terms of imprisonment of twenty years to life on two murder counts and five to fifteen years for a robbery count. After this conviction was reversed on appeal, he was tried again before Justice Herbert Kramer, convicted, and sentenced to concurrent terms of twenty-five years to life for the murder counts, and twelve and one-half to twenty-five years for the robbery count. Alvarez alleges that his sentence following his second conviction violates North Carolina v. Pearce, 395 U.S. 711, 724-25, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), which held that following a reconviction after a successful appeal and a new trial, due process prohibits the imposition of a greater sentence when the sentence increase is motivated by the sentencing judge's vindictiveness. The Court held that under certain conditions the imposition of a more severe sentence after retrial gives rise to a rebuttable presumption of vindictiveness. Id.; United States v. King, 126 F.3d 394, 397 (2d Cir. 1997). However, since Pearce, the Court has held that this presumption does not arise when, following the second conviction, the defendant is sentenced by a different judge than his original sentencing judge. See Texas v. McCullough, 475 U.S. 134, 138, 106 S.Ct. 976, 89 L.Ed.2d 104 (1986); United States v. Atehortva, 69 F.3d 679, 683-84 (2d Cir. 1995) (citing United States v. Coke, 404 F.2d 836, 845 (2d Cir. 1968) (en banc)); United States v. Perez, 904 F.2d 142, 146 (2d Cir. 1990) ("there is no realistic motive for vindictive sentencing" when prior reversal was based on a ruling by a judge other than the sentencing judge). "At a subsequent trial before a different judge, the evidence might well be presented in a different light, new witnesses might come forward, others might appear more credible or recite additional facts, and the judge might be impressed with items of proof that either escaped notice at the first trial or were discounted by the first trial judge." Perez, 904 F.2d at 145. Thus, when different sentencers impose the varying sentences, a defendant must prove actual vindictiveness on the part of the second sentencer. See id. at 146.

As Magistrate Judge Go determined, the presumption of vindictiveness does not arise in this case because after his second trial Alvarez was sentenced by a different judge than after the first trial. Thus, the burden of proof rests with Alvarez to produce evidence of vindictiveness by Justice Kramer, which he has failed to do. As to any implicit suggestion that Justice Kramer's views were colored by the results of Alvarez's prior trial, Justice Kramer specifically avoided any knowledge of the results of the prior proceedings, except as to the law of the case as raised at trial: "Let the record indicate at this time that the Court has not opened the court file, nor know any information about what is contained therein through any source, and I've directed all the court personnel not to give me the contents, either verbally or in any other fashion." Trial Transcript, at 7. Thus, because Alvarez has failed to carry his burden of proof, his sentencing claim cannot serve as the basis for habeas corpus relief.

CONCLUSION

Because Alvarez's objections are meritless, the Court adopts the Magistrate Judge's R & R. Alvarez's petition for a writ of habeas corpus is denied. The Court further determines that a certificate of appealability will not be issued since Alvarez has failed to make a substantial showing of the denial of a federal right. See 28 U.S.C. § 2253(c)(2).

SO ORDERED.

REPORT AND RECOMMENDATION

GO, United States Magistrate Judge.

Petitioner Lloyd Alvarez, pro se in forma pauperis, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and, in the alternative, for a hearing to determine the merits of his petition. The petition, as well as petitioner's application for appointment of counsel, were referred by the Honorable Frederic Block to me to report and recommend. For the following reasons, I recommend that the petition be dismissed and the application for appointment of counsel be denied.

PROCEDURAL BACKGROUND

Prior State Court Proceeding

Petitioner was convicted of two counts of murder in the second degree and one count of robbery in the first degree, New York Penal Law §§ 125.25(1), (3), 160.15(2) (McKinney 1994), following a jury trial in New York State Supreme Court, Kings County. The Honorable John Starkey entered judgment on November 12, 1980 sentencing petitioner to concurrent terms of imprisonment of twenty years to life for the two murder counts, and five to fifteen years for the robbery count.

On appeal, the New York Appellate Division, Second Department, reversed the judgment of conviction due to the deficiencies in the court's charge. People v. Alvarez, 96 A.D.2d 864, 465 N.Y.S.2d 758 (2d Dept. 1983). Following a bench retrial in New York State Supreme Court before the Honorable Herbert Kramer, petitioner was again of two counts of murder in the second degree and one count of robbery on the first degree. On November 15, 1984, Justice Kramer sentenced petitioner to concurrent terms of imprisonment of twenty-five years to life for the murder counts and twelve and one-half to twenty-five years for the robbery count.

On or about April 3, 1986, petitioner appealed to the New York Supreme Court, Appellate Division, Second Department ("Appellate Division"), asserting that: 1) the hearing court improperly denied his pre-trial suppression motions; 2) petitioner was denied a fair trial as a result of the improper conduct of the court and the prosecutor; and 3) petitioner's sentence was excessive. See Petitioner's Appeal Brief at 2. On September 4, 1986, in a pro se supplemental brief, petitioner raised three additional claims: 1) he was denied a fair trial and his due process rights because the trial court failed to rule on the legality of petitioner's arrest; 2) the prosecution failed to demonstrate probable cause to detain petitioner; and 3) petitioner's post-arrest statements were obtained in violation of his rights guaranteed by the Fifth Amendment to the United States Constitution. See Petitioner's Supplemental Appeal Brief at 2.

The Appellate Division affirmed petitioner's conviction, holding that the hearing court properly denied petitioner's motion to suppress identification evidence and that the police had probable cause to arrest petitioner. People v. Alvarez, 134 A.D.2d 599, 600, 521 N.Y.S.2d 497, 498 (2d Dept. 1987). The Appellate Division further held that because petitioner knowingly, intelligently and voluntarily waived his Fifth Amendment rights, his post-arrest statements to the police were properly admitted. Id. Finally, the court rejected petitioner's claim that the trial court improperly imposed a higher sentence after his conviction on retrial. Id. at 499. The New York Court of Appeals subsequently denied leave to appeal. People v. Alvarez, 71 N.Y.2d 892, 527 N.Y.S.2d 1001, 523 N.E.2d 308 (1988).

On December 4, 1990, petitioner moved pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.20 (McKinney 1994) to set aside his sentence on the ground that it was "invalid as a matter of law" based on a new standard for assessing excessive sentence claims established by the New York State Court of Appeals in People v. Van Pelt, 76 N.Y.2d 156, 556 N.Y.S.2d 984, 556 N.E.2d 423 (1990). The New York Supreme Court, Kings County, denied petitioner's motion, declining to apply Van Pelt retroactively to petitioner's case. People v. Alvarez, 151 Misc.2d 697, 573 N.Y.S.2d 592 (Sup.Ct. 1991). On October 16, 1991, the Appellate Division denied petitioner's application for leave to appeal.

On January 14, 1992, petitioner moved pursuant to C.P.L. § 440.10 before the New York Supreme Court, Kings County, to vacate his judgment of conviction on the grounds that the trial court lacked subject matter jurisdiction after failing to make findings on whether probable cause existed to detain defendant, and that he received ineffective assistance of hearing counsel. On December 13, 1994, the New York Supreme Court denied petitioner's motion. People v. Alvarez, Ind. No. 2428/79 (Sup.Ct., N.Y.County, December 13, 1994) (Kramer, J.). Justice Herbert Kramer held that despite the hearing court's failure to render findings on the issue of probable cause, the trial court acquired subject matter jurisdiction over the case when petitioner voluntarily proceeded to trial. Id. at 3-4. As to petitioner's ineffective assistance of counsel claim, Justice Kramer found that petitioner failed to show the requisite prejudice caused by his attorney's decision to continue to trial without a probable cause determination. Id. at 4-5.

On March 8, 1995, the Appellate Division denied petitioner's motion for leave to appeal. Petitioner then appealed his § 440.10 motion to the New York Court of Appeals on March 29, 1995. On April 6, 1995, the New York Court of Appeals dismissed petitioner's motion as being unappealable under C.P.L. § 450.90(1).

The Petition

On February 26, 1996, petitioner filed the instant petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 (1994) and a memorandum of law in support of his application. Respondent filed a memorandum of law in opposition to the petitioner's application, along with: (a) the transcript of a suppression hearing dated September 9-10, 1980; (b) the retrial transcript dated October 24, 1984 ("Retrial Tr."); (c) petitioner's brief to the New York Supreme Court, Appellate Division, dated April 3, 1986 ("Pet.'s Appeal Brief") and pro se supplemental brief, dated September 4, 1986 ("Pet.'s Suppl. Appeal Brief"); (d) respondent's brief to the Appellate Division, dated July 1, 1987 ("Resp.'s Appeal Brief"); (e) the November 30, 1987 decision of the Appellate Division affirming petitioner's judgment of conviction; (f) the July 16, 1991 decision of the New York Supreme Court denying petitioner's motion to set aside his sentence; (g) respondent's Affirmation and Memorandum of Law in Opposition to Petitioner's Motion to Vacate Judgment of Conviction, dated April 20, 1992; and (h) the decision of Justice Herbert Kramer dated December 13, 1994 denying petitioner's Motion to Vacate Judgment of Conviction. On August 29, 1996, petitioner filed a pro se Reply to Respondent's Opposition to the Petition for a Writ of Habeas Corpus.

Petitioner asserts the following six grounds for relief in his petition: 1) the trial court lacked subject matter jurisdiction over the case because of its failure to make a pre-trial judicial determination of the probable cause issue; 2) the police lacked probable cause to arrest petitioner, thus making his post-arrest statements inadmissible at trial; 3) petitioner was denied effective assistance of hearing counsel; 4) petitioner's post-arrest statements to the police were made in violation of the Fifth Amendment to the United States Constitution; 5) the trial court improperly admitted identification evidence against petitioner; and 6) petitioner's sentence after his second ...


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