The opinion of the court was delivered by: Garaufis, District Judge.
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
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.
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).
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
At about 8:30 p.m., Alice Quinn, a cashier at the supermarket,
went to the store's
courtesy desk to tally money. The man approached Ms. Quinn,
pulled out a gun, and gave her a paper bag and a note that read
"I have a gun. Please be quiet and put all the money in the bag."
(Id. at 70-73.) He held the gun in his left hand. (Id. at
85-86.) Ms. Quinn complied with his demand. (Id. at 74.) She
had an unobstructed view of the robber under good lighting
conditions for three or four minutes, during which time she
noticed that he was wearing a fake mustache, a baseball cap, and
a tan jacket. (Id. at 71-73, 75-77, 80, 86.) He demanded that
Ms. Quinn return the note. She did so; he left the store; and the
police were called. (Id. at 75, 77.)
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.
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.
On or about April 17, 1991, the Nassau County Police Department
received a complaint of assault and grand larceny from Nancy
Hoelle. Detective Bennett, the same detective who arrested
petitioner, went to her house in Oyster Bay to investigate.
Ms. Hoelle told Detective Bennett that her former boyfriend,
Charles Kroll, had stolen her truck and had beaten her. (Resp.
Exh. 1 at 242.) She showed Detective Bennett a pellet gun, a
"stage" mustache, and what appeared to be a "practice" stickup
note. She gave the detective a description of Kroll and a
photograph. Respondent claims that Detective Bennett never took
the mustache, note, pellet gun or anything else from Ms. Hoelle,
(Resp. Aff. ¶ 37 (citing Resp. Exh. 1 at 243)), but petitioner
claims that he did, (Pet. Mem. at 20, 23).
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, ...