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HUBER v. SCHRIVER

April 17, 2001

STUART HUBER, PETITIONER,
v.
SUNNY SCHRIVER, SUPERINTENDENT, WALLKILL CORRECTIONAL FACILITY, RESPONDENT.



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

  MEMORANDUM AND ORDER

On May 29, 1992, Petitioner was convicted after a jury trial of robbery in the first degree. He was sentenced to a term of incarceration of four to twelve years. On May 16, 1996, Petitioner moved pursuant to New York Criminal Procedure Law § 440.10 to vacate his conviction on the grounds of newly discovered exculpatory evidence and Brady violations. His motion was denied.

On December 22, 1997, Petitioner timely filed the instant petition for a writ of habeas corpus, asserting five grounds for relief: (1) Brady violations, (2) failure to establish guilt beyond a reasonable doubt, (3) erroneous evidentiary rulings, and (4) improper jury instructions. The matter was referred to Magistrate Judge Wall for a report and recommendation. Since then Petitioner has been released from prison on probation. Petitioner filed specific objections to the R & R on November 27 and December 8, 2000. I have reviewed de novo the objections, the record, and Magistrate Judge Wall's R & R, see 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b), and find Petitioner's arguments unconvincing.

Magistrate Wall concluded that this court retains jurisdiction over Petitioner's application for a writ of habeas corpus because he was "in custody" at the time he filed his petition. See infra at 4 (citing Spencer v. Kemna, 523 U.S. 1, 11, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)). I agree with that statement and add only that the controversy is not mooted by Petitioner's release because being "on parole" satisfies the "in custody" requirement of 28 U.S.C. § 2254(a). See Jones v. Cunningham, 371 U.S. 236, 242-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).

Regarding the substantive issues, I am in full agreement with and hereby adopt the magistrate's analysis of Petitioner's habeas claims. See 28 U.S.C. § 636(b)(1). Petitioner's objections to the R & R are without sound legal or factual support. Accordingly, for the reasons set forth in the R & R reproduced below,*fn1 Petitioner's application for a writ of habeas corpus is denied. In addition, because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2). The Clerk of the Court is directed to close the case.

SO ORDERED.

On May 29, 1992, after a jury trial, petitioner was convicted of robbery in the first degree and was sentenced to an indeterminate term of imprisonment of four to twelve years. (T at 437-39; S at 37-38.*fn2) He appealed his conviction to the New York Supreme Court, Appellate Division, Second Department. In a Decision and Order dated February 14, 1994, the Appellate Division unanimously affirmed petitioner's conviction. See People v. Huber, 201 A.D.2d 583, 609 N.Y.S.2d 806 (N.Y.App. Div. 199 4). Thereafter, by certificate dated April 24, 1994, leave to appeal to the New York Court of Appeals was denied. See People v. Huber, 83 N.Y.2d 872, 613 N.Y.S.2d 133, 635 N.E.2d 302 (1994). Petitioner did not seek a writ of certiorari in the United States Supreme Court.

In 1995, while he was incarcerated, petitioner claims that he was told by another inmate, Richard Katz, that a third person, Charles Kroll, had "confessed" to the robbery for which petitioner was convicted. (Pet. Mem. at 19.) By motion dated May 16, 1996, petitioner moved the Nassau County Court, pursuant to New York State Criminal Procedure Law § 440.10, to vacate the judgment of conviction. The motion was denied without a hearing by Order dated December 20, 1996. Petitioner applied for leave to appeal that Order, and leave was denied by Decision and Order dated May 6, 1997. See People v. Huber, No. 97-01160 (N.Y.App. Div. 1997). On December 22, 1997, petitioner filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Respondent Sunny L. Schriver, Superintendent of Walkill Correctional Facility, moved, pursuant to 28 U.S.C. § 2244(d), to dismiss the application as time-barred, and that motion was denied by District Judge Hurley in a Decision and Order dated February 3, 1999. Respondent opposes petitioner's application for habeas relief. Respondent concedes that each of Petitioner's claims is exhausted, but contends that some aspects of the claims are procedurally barred, that some do not present constitutional questions, and that they are all without substantive merit. (Resp.Aff. ¶¶ 68-69.)

By letter dated October 13, 2000, Petitioner informed the Court that he has been released from prison, but still wishes to pursue his habeas application. Despite petitioner's release from prison, this Court retains jurisdiction over petitioner's habeas application. The "in custody" requirement of the habeas statute is satisfied if, as here, petitioner was incarcerated at the time the petition was filed. See Spencer v. Kemna, 523 U.S. 1, 11, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998).

FACTUAL BACKGROUND

1.) The King Kullen Robbery on March 14, 1991:

On March 7, 1991, at approximately 8:30 p.m., Jeffrey Fischler and Kenan Karatas, employees of the King Kullen supermarket at 5 Cold Spring Road in Syosset, observed a man whom they later identified as petitioner walk into the store. (T at 4-6, 16-17, 39-40, 44-45, 48-49.) The man walked back and forth near the front office courtesy counter. (Id. at 40, 45-46.) Mr. Fischler followed him around for three or four minutes, and was, at times, within arm's length of him. (Id. at 6, 11-12.) The man was wearing a cowboy hat and carrying a gun in a shoulder holster. (Id. at 5-6, 40.) Mr. Fischler noted that he was white, about 6'4" to 6'5" in height and between 25 and 30 years old, with light brown hair and hazel eyes, wore boots, did not have a mustache, and weighed between 225 and 250 pounds. (Id. at 5-7, 12, 27-29.) The man went to the checkout line, where Mr. Karatas was bagging groceries. (Id. at 41.) As Mr. Karatas stared at his gun, the man flashed open his jacket and claimed to be a police officer. (Id.)

One week later, on March 14, 1991, at approximately 8:30 p.m., Messrs. Fischler and Karatas again saw a man whom they later identified as petitioner in Aisle 1 of the same King Kullen supermarket. (Id. at 12, 16-17, 42, 44-45.) Mr. Karatas observed him standing near the front office courtesy desk. (Id. at 45-46.) Mr. Fischler noticed that he was wearing a baseball cap and what appeared to be a "fake" looking mustache. (Id. at 13, 28.)

Detective Michael Kuhn and Officer Thomas Salvato of the Nassau County Police Department arrived and interviewed Ms. Quinn, who told them that the robber had been wearing a "phony" mustache, and that he was brown-haired, dark-eyed, "very tall" (approximately 6'3"), white, about 200 pounds, with a big nose. (Id. at 73, 78, 80, 86, 88, 130-32, 134-35)

Subsequently, someone from the Suffolk County Police Department told Detective Bartlett of the Nassau County Police Department that Suffolk County had, two years earlier, arrested petitioner for the robbery of a King Kullen supermarket in Suffolk County, under circumstances similar to the robbery of the Syosset King Kullen*fn3. (H at 15, 38.) Detective Bartlett conveyed the information about the earlier King Kullen robbery to Detective Kuhn. (Id. at 15.) The Suffolk County Police Department gave Detective Kuhn a photograph of petitioner, in which he was not wearing a mustache. (Id. at 13, 42.) The Nassau County detectives prepared two photo packs, each of which contained a photograph of petitioner and photos of five other men who resembled petitioner. In one array, petitioner and the "fillers" were clean shaven; in the other, a mustache was added to petitioner's photo and the fillers were men with mustaches. (Id. at 16-17.)

Detective Kuhn showed the photo packs to Mr. Fischler, who identified petitioner from both arrays as the person he had seen in the store on the night of the robbery, stating that "[H]is face is perfect and it is positively the same person." (Resp. Exh. 1 at 54; H at 19.) Detective Kuhn also showed the photo packs separately to Ms. Quinn and Mr. Karatas. (H at 21.) Ms. Quinn identified petitioner from both photo packs as the person who robbed her, stating that "His face and eyes are definitely those of the man who robbed me." (Resp. Exh. 1 at 56; H at 21-22.) Mr. Karatas "believed" that the man he had seen in the store was either number four or number six in the first array. (H at 23-24, 38-39.) Petitioner was, in fact, number six in that array. (Id. at 39.)

Detective Kuhn arrested petitioner on March 24, 1991, and Detective James Bennett participated in the arrest. (T at 139-40; H at 24; Resp. Exh.1 at 241.) Detective Kuhn ascertained that petitioner was 6'5" tall, weighed about 225 pounds, had light brown hair and hazel eyes. (T at 140.) Petitioner told Detective Kuhn that he is right handed. (Id. at 158.) On the date of his arrest, petitioner was placed in a lineup with five fillers who resembled him. (Id. at 140-41; H at 25.) Ms. Quinn, Mr. Fischler and Mr. Karatas separately viewed the lineup. (T at 16-17, 44, 79, 143-44.) Ms. Quinn recognized petitioner as the man who had robbed her on March 14, 1991, and provided Detective Bartlett with a statement confirming that she had identified petitioner in the lineup as the person who had robbed her at gunpoint in the Syosset King Kullen store on March 14, 1991, and who had given her a note that read, "I have a gun. Be very quiet and put all the money in a bag." (Resp. Exh. 1 at 242.)

Mr. Fischler and Mr. Karatas identified petitioner as the man they had seen in the store on March 7, and also identified him as the man they saw in the store on March 14 at the time of the robbery. (T at 16-17, 44, 143-44.) They both gave Detective Bennett a statement that they recognized petitioner in the lineup as the person involved in the March 14 robbery of the Syosset King Kullen. (Resp. Exh. 1 at 241-42.)

2.) Petitioner's indictment and trial:

Petitioner was indicted on August 1, 1991, and a pretrial Wade/Dunaway hearing was held. (Resp.Aff. ¶ 43.) The County Court of Nassau County found that the police had probable cause to arrest petitioner and that the identification procedures were conducted non-suggestively. (Id.) Accordingly, the County Court denied petitioner's motion to suppress identification testimony. (Id.)

At the trial, the defense put Susan Fisher, then petitioner's fiancé and now his wife, on the stand. She testified that petitioner could not have been at King Kullen on either March 7 or March 14. On March 7, she testified, he had been at home sleeping, and on March 14 he was at home with her in their bedroom between 8:00 p.m. and 8:40 p.m. watching television. (T at 207-08, 211-112, 218.) She testified that, on March 14, he left their house about 8:35 or 8:40 to attend his weekly card game, that she had never seen petitioner wear a fake mustache, cowboy boots, or a cowboy hat, and that he was right handed. (Id. at 211, 213, 217.) Ms. Fisher's two teenaged sons testified to the same facts. (Id. at 185, 200, 232.)

Leonard Slutsky testified for the defense that he was the host of a weekly card game at 20 Equestrian Lane in Huntington and that petitioner was a regular participant who had attended the game on March 14, although he had not attended on March 7. (Id. at 272-73, 275, 277, 279.) Slutsky said that petitioner had arrived at his house on March 14 between 8:55 p.m. and 9:05 p.m., the first person to arrive for the game. (Id. at 277, 279.) Slutsky stated that it was "not normal" for petitioner to be the first to arrive, and that Slutsky had never seen petitioner wear a false mustache, cowboy boots or a cowboy hat. (Id. at 274.)

Several other witnesses testified that petitioner had attended the card game and had arrived unusually early, that they had never seen petitioner wear a cowboy hat, cowboy boots, or a fake mustache, and that he was right handed. (See generally id. at 236-302 (testimony of Stuart Kern, Joel Gerald Ratzker, Peter Frank Cohn, Israel Brenner and Gregory Mazzeo).)

Petitioner was found guilty of robbery in the first degree and sentenced to a term of imprisonment of four to twelve years. (Id. at 437-39; S at 38.) He maintains that he is an innocent victim of mistaken identity, whose alibi should have been credited by the jury.

3.) Charles Kroll:

The date of Ms. Hoelle's complaint — April 17, 1991 — was after petitioner's arrest on March 24, 1991, but before his indictment on August 1, 1991. After interviewing Ms. Hoelle, Detective Barrett did a computer search for "open crimes" in Nassau County wherein the description of the perpetrator matched that of Charles Kroll. (Resp. Exh. 1 at 243.) When he found nothing, he contacted the Suffolk County Second Squad and told them about Charles Kroll's description. (Id.) Suffolk County Detective Richard Neems told Bennett that he had an "open" robbery for which Kroll matched the description of the perpetrator, apparently the robbery of the Videoplex store in Centerport for which Kroll was later convicted. (Id.)

Detective Bennett never considered Kroll a suspect in the March 14, 1991 King Kullen robbery because he believed that Kroll's description did not match the description of the King Kullen perpetrator. (Id.) According to Detective Bennett, who has seen both Kroll and petitioner, Kroll is a white man with "steel blue" eyes, a thin, pointy nose, and hair darker than petitioner's. (Id. at 244.) Bennett compared this to petitioner's lighter hair and wider nose, ...


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