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FLORES v. KEANE
June 13, 2001
LORENZO FLORES, PETITIONER,
JOHN P. KEANE, SUPERINTENDENT, SING SING CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Berman, District Judge.
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) 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
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
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
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
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.
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.
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:
(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.
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.
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,
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 ...