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FLORES v. KEANE

June 13, 2001

LORENZO FLORES, PETITIONER,
V.
JOHN P. KEANE, SUPERINTENDENT, SING SING CORRECTIONAL FACILITY, RESPONDENT.



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

    DECISION AND ORDER

I. Introduction

On or about January 27, 1997, Lorenzo Flores ("Flores" or "Petitioner") filed a petition pro se, pursuant to 28 U.S.C. § 2254, for a writ of habeas corpus in the United States District Court, Southern District of New York ("Petition"). Flores had been convicted, following a jury trial, on January 31, 1989, in New York State Supreme Court, Bronx County, of Murder in the Second Degree (N.Y. Penal Law § 125.25[2]) and Criminal Possession of a Weapon in the Fourth Degree (N.Y. Penal Law § 265.01) and was sentenced to concurrent prison terms of twenty-five years to life on the murder conviction and one year on the weapon charge. The jury convicted Flores of stabbing Jose Amaro ("Amaro") to death on December 10, 1987 during an altercation which took place outside of a Bronx social club and which was witnessed by several people.*fn1 Magistrate Judge's Report and Recommendation, dated Dec. 19, 2000 at 2 ("Report") ("The altercation took place outside a Bronx nightclub and was witnessed by several acquaintances of Amaro and other onlookers. Following the stabbing by petitioner, he fled in a car. The police later arrested him, and two of the eyewitnesses identified him at a lineup.").

Petitioner asserts two grounds for habeas relief: (i) deprivation of his due process right to a fair trial by virtue of the prosecutor's allegedly "improper" remarks on summation;*fn2 and (ii) denial of his Sixth Amendment rights by virtue of alleged ineffective assistance of his appellate counsel.*fn3

On December 19, 2000, the Honorable Michael H. Dolinger, United States Magistrate Judge, Southern District of New York, to whom the matter had been (re)assigned, issued a Report and Recommendation recommending that the Petition be denied on the merits and dismissed with prejudice. Report at 11 ("We first address the summation claim and then turn to the various Sixth Amendment claims pressed by the petitioner. We conclude that all of the claims are plainly meritless."). Petitioner timely filed objections to the Report ("Objections" or "Pet.'s Obj."), dated January 4, 2001;*fn4 Respondent John P. Keane, Superintendent of Sing Sing Correctional Facility, ("Respondent") has not filed any objections.

By order dated March 29, 2001, the Court directed that Magistrate Dolinger "elicit, by way of affidavit or hearing, the views of Petitioner's appellate counsel, Steven C. Losch, formerly Staff Attorney, Legal Aid Society of the City of New York [`Legal Aid Society'] and Philip L. Weinstein, formerly Attorney in Charge, Legal Aid Society, on the `ineffectiveness' issues alleged herein by Petitioner." Flores v. Keane, No. 94 Civ. 5906 (S.D.N.Y. March 29, 2001). Mr. Losch responded by affidavit dated April 26, 2001. Affidavit of Steven C. Losch, dated April 26, 2001 (Losch Aff.) ("I do not believe that Mr. Flores was denied effective assistance of counsel under the Strickland v. Washington standard . . ."). Mr. Weinstein responded by affidavit dated April 4, 2001. Affidavit of Phillip L. Weinstein, dated April 4, 2001. On May 4, 2001, Magistrate Dolinger issued a Report and Recommendation ("Supplemental Report" or "Supp. Report"), concluding that "[b]ased on [the submissions of Mr. Weinstein and Mr. Losch] we have no reason to alter in any respect the original Report and Recommendation." Supp. Report at 2. Petitioner timely filed objections to the Supplemental Report by letter dated May 15, 2001 ("Objections to the Supplemental Report") ("After a careful review of the new Report Recommendation petitioner relies upon the original affidavit and pro se objection and the Supplemental letter that petitioner has raised a Substantial Constitutional Question.").

For the reasons set forth below, the Court adopts Magistrate Dolinger's Report and Supplemental Report in all material respects and concludes that Petitioner's writ of habeas corpus should be denied.

II. Background

Following his conviction, Petitioner filed an appeal in the Appellate Division, First Department in or about June 1991. The Appellate Division affirmed the conviction on March 18, 1993. People v. Flores, 191 A.D.2d 306, 595 N.Y.S.2d 173 (N.Y.App.Div. 1993) ("The prosecutor's asserted mischaracterization of the evidence is unpreserved for appellate review by timely objection, and we decline to review the issue in the interest of justice. Were we to consider the argument, we would find it to be without merit. . . . The characterization of the defense as a smokescreen is within the bounds of fair comment.") (internal citations omitted). Petitioner thereafter sought leave to appeal to the New York State Court of Appeals on March 31, 1993. That application was denied on May 11, 1993. People v. Flores, 81 N.Y.2d 1013, 600 N.Y.S.2d 201, 616 N.E.2d 858 (1993). On July 14, 1993, Petitioner filed a motion in the Appellate Division for a writ of error coram nobis.*fn5 The First Department denied the coram nobis application on October 5, 1993. People v. Flores, 197 A.D.2d 940, 603 N.Y.S.2d 731 (N.Y.App.Div. 1993) ("Writ of coram nobis denied.").*fn6

Petitioner filed his initial petition for a writ of habeas corpus in this Court on June 23, 1994. On November 14, 1994, he requested that his petition be dismissed without prejudice and his request was granted by an order of U.S. District Court Judge John E. Sprizzo, dated November 22, 1994. Flores v. Keane, No. 94 Civ. 5906 (S.D.N.Y. November 22, 1994) ("[I]t is ordered that pursuant to Federal Rule of Civil Procedure 41(a), the above-captioned action shall be and hereby is dismissed against defendant Koppell."). Petitioner filed a second habeas corpus petition in this Court on April 17, 1995. Again, Petitioner asked that his petition be dismissed without prejudice and Judge Sprizzo granted that request also. Flores v. Keane, No. 94 Civ. 5906 (S.D.N.Y. April 1, 1996) ("[T]he above-captioned petition shall be and hereby is dismissed without prejudice.").

On August 20, 1997, Respondent moved to dismiss the instant Petition as time-barred by the one year limitations period imposed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2244(d)(1) and (2). By order dated May 7, 1998, Judge Sprizzo adopted a Report and Recommendation, dated January 26, 1998, written by Magistrate Judge Leonard Berkinow*fn7 ("Berkinow Report") and denied Respondent's motion to dismiss. Flores v. Keane, No. 94 Civ. 5906 (S.D.N.Y. May 7, 1998).*fn8 Magistrate Berkinow reasoned that "the one year statute of limitations period does not apply where . . . the judgment of conviction became final before the effective date of the AEDPA, April 24, 1996." Berkinow Report at 4. Magistrate Berkinow stated that, in such cases, "the Second Circuit grants a petitioner a reasonable time after the enactment of the AEDPA to file his petition." Id. He also concluded that Petitioner's (nine month) delay in filing his habeas application was reasonable "in view of [his] efforts to exhaust state remedies."*fn9 Id.

III. Standard of Review

A district court evaluating a Magistrate's report may adopt those portions of the report to which no "specific, written objection" is made, as long as those sections are not clearly erroneous. Fed.R.Civ.P. 72(b); Letizia v. Walker, No. 97-CV-0333E(F), 1998 WL 567840, at *1 (W.D.N.Y. Aug. 27, 1998); Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). Where timely objections are made, the District Judge must make a de novo determination as to the objected to issues, but is not required to conduct a de novo hearing. See Cespedes v. Coughlin, 956 F. Supp. 454, 463 (S.D.N.Y. 1997); East River Sav. Bank v. Secretary of Hous. and Urban Dev., 702 F. Supp. 448, 453 (S.D.N.Y. 1988). Thereafter, a district court may accept, reject, or modify, in whole or in part, the findings and recommendations of the Magistrate. See DeLuca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994). The Court must liberally construe the claims of a pro se litigant. See, e.g., Marmolejo v. United States, 196 F.3d 377, 378 (2d Cir. 1999).

The legal measure for habeas corpus relief is contained in 28 U.S.C. § 2254, as amended by the AEDPA,*fn10 which provides:

(d) An application for writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.

28 U.S.C. § 2254(d)(1).

The reviewing court should "defer to a state court's adjudication of a petitioner's claims on the merits unless the state court's decision was `contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" Kutzner v. Johnson, 242 F.3d 605, 608 (5th Cir. 2001) (citations omitted). Under the "contrary to" clause, a Federal habeas court may grant a writ "if the state court arrives at a conclusion opposite to that reached by [the U.S. Supreme Court] on a question of law" or if the state court "confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to [the Court's decision]." Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the "unreasonable application" clause, "a federal habeas court may grant relief if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case."*fn11 Id., 120 S.Ct. at 1523.

IV. Procedural Bar

Respondent claims that Petitioner did not exhaust all available state remedies under 28 U.S.C. § 2254(b) and (c) by "fairly presenting the substance of his [due process claims regarding the prosecutor's summation] to the Appellate Division" and, therefore, Petitioner may not "bring [his] habeas corpus proceeding in federal court." (Resp.'s Brief at 16-17).*fn12 "[T]he petitioner must have informed the state court of both the factual and the legal premises of the claim he asserts in federal court." Daye v. Attorney Gen. of the State of New York, 696 F.2d 186, 191 (2d Cir. 1982). The Court believes Petitioner's due process claim is not procedurally barred.*fn13 Even "a minimal reference to the Fourteenth Amendment satisfies the exhaustion requirement." Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992); see also Davis v. Strack, 211 F. Supp. 377, 407 (S.D.N.Y. 2000) ("Davis' constitutional argument was lodged in state court in that it was printed in a bold type heading in Davis' brief to the Appellate Division."). Here, Petitioner's constitutional argument was printed in capital letters in two headings in his brief to the Appellate Division. See Pet.'s App. Brief at 1, 17.

Respondent also argues that Petitioner's claim that the prosecutor "seriously misstated the evidence, and that these inaccuracies were so egregious as to deny him a fair trial," is also barred from review here because "this claim was not preserved by contemporaneous objection at trial." (Resp.'s Brief at 19). The Court agrees. The Appellate Division specifically found that this claim was "unpreserved for appellate review by timely objection." Flores, 191 A.D.2d at 307, 595 N.Y.S.2d 173 "Were we to consider [defendant's] argument, we would find it to be without merit. Evidence was adduced from which the jurors could conclude that the decedent was stabbed after he had retreated and that the attack on the victim continued as he lay on the ground."*fn14 Id. (emphasis added).

"[A]n adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the procedural default or prejudice attributable thereto or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999) (citations omitted). "Cause" is established by showing that "some objective factor external to the defense impeded counsel's efforts' [to raise that claim in state court]." Murray v. Carrier, 477 U.S. 478, 479, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). Such factors may include: "(1) outside interference that makes compliance with state procedural rules impracticable; (2) a showing that the factual or legal basis for a claim was not reasonably available to counsel; and (3) ineffective assistance of counsel." Washington v. Superintendent, Otisville Correctional Facility, 1997 WL 178616, at *6 (S.D.N.Y. 1997). The "prejudice" requirement is satisfied by a showing of "actual prejudice resulting from the errors of which [petitioner] complains." United States ...


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