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COLON v. ARTUZ

November 20, 2001

ALBERTO COLON, PETITIONER
v.
CHRISTOPHER ARTUZ.



The opinion of the court was delivered by: Laura Taylor Swain, United States District Judge.

  OPINION AND ORDER

On May 21, 2001, Magistrate Judge James C. Francis, IV, issued a Report and Recommendation ("Report") recommending that this petition for a writ of habeas corpus under 28 U.S.C. § 2254 be denied. In reviewing the report and recommendation, a court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C.A § 636(b)(1)(C) (West 1993 & Supp. 2001). "To accept the report and recommendation of a magistrate to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted). See also Pizarro v. Bartlet, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (court may accept report if it is "not facially erroneous"). The court shall make a de novo determination of those portions of the report to which objections are made. See id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).

There were no objections interposed to the Report. The Court has thoroughly reviewed Magistrate Judge Francis' comprehensive and well-reasoned Report and has determined that there is no clear error on the face of the record. The Court adopts the Report for the reasons stated therein. Accordingly, the petition is dismissed.

The petitioner may not appeal this order to the Court unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C. .A. § 2253(c)(1) (West 1994 & Supp. 2001). A certificate will be granted, "only if the applicant has made a showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see generally United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a certificate of appealability). The Court finds petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appeal. Further, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).

Magistrate Judge Francis' Report follows.

REPORT AND RECOMMENDATION TO THE HONORABLE LAURA TAYLOR SWAIN

Alberto Colon brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for murder in the second degree. Mr. Colon claims that: (1) he was denied the right to be present during all material stages of his trial; (2) the trial court allowed the confidentiality of jury deliberations to be violated; and (3) the court's jury instructions on reasonable doubt denied him due process. For the following reasons, I recommend that the petition be denied.

Background

In the early morning hours of March 21, 1990, the petitioner entered apartment 4S at 1304 Merrian Avenue with Jose Cortez (known as Joselito) and Pedro Arias (known as Pajarito). (Tr. 47, 80, 135).*fn1 When they arrived, Angel Colon (known as Abbey) and Ramon Nunez (known as Nano) were in the bedroom of the apartment. (Tr. 50, 126, 129). After a brief exchange of words, the petitioner struck Abbey in the face. (Tr. at 130). When Abbey asked, "What's happening?," Nano told him to "be cool" because the petitioner was armed with a revolver. (Tr. at 130). When Abbey tried to move, the petitioner struck him again and said, "Be cool because I am going to shoot you one time." (Tr. at 130). Mr. Colon then struck Abbey a third time, and when he tried to get up, the petitioner shot him in the head, killing him. (Tr. at 131).

Following a jury trial in New York State Supreme Court, Bronx County, the petitioner was found guilty of murder in the second degree, New York Penal Law § 125.25(1), in connection with the death of Angel Colon. (Affidavit of Nancy Killian dated July 19, 2000 ("Killian Aff."), ¶ 5). The judgment of conviction was entered on May 14, 1992, and the petitioner was sentenced to an indefinite term of imprisonment of twenty-five years to life. (Killian Aff. ¶ 5).

Mr. Colon appealed to the Appellate Division, First Department, raising the same three grounds he raises in the instant petition, as well as a fourth claim that his sentence was excessive. (Brief for Defendant-Appellant dated Sept. 1994 ("App. Brief"), attached as Exh. 1 to Killian Aff.)). On January 26, 1995, the Appellate Division affirmed the judgment of conviction, People v. Colon, 211 A.D.2d 575, 621 N.Y.S.2d 606 (1st Dep't 1995), and on May 12, 1995, the New York Court of Appeals denied leave to appeal. People v. Colon, 85 N.Y.2d 971, 629 N.Y.S.2d 731 (1995).

On April 4, 1994, Mr. Colon submitted a motion to the Appellate Division, seeking a writ of error coram nobis, contending that he had been deprived of effective assistance of counsel. (Motion for Writ of Error Coram Nobis dated April 4, 1996, attached as Exh. 3 to Killian Aff.). The Appellate Division denied the motion on July 2, 1996, People v. Colon, 229 A.D.2d 1039, 644 N.Y.S.2d 964 (1st Dep't 1996), and the Court of Appeals dismissed Mr. Colon's application for leave to appeal on August 20, 1996. People v. Colon, 88 N.Y.2d 982, 649 N.Y.S.2d 389 (1996).

Mr. Colon then filed the instant petition for a writ of habeas corpus, which was received by the Pro Se Office of this Court on July 7, 1997. (Petition for Writ of Habeas Corpus dated May 21, 1997 ("Petition")). On June 2, 1998, the petition was dismissed as time-barred pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The dismissal, however, was vacated by the Second Circuit Court of Appeals in light of its decision in Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998), and the matter was remanded for a decision on the petition.*fn2

The respondent moves to dismiss the petition on both procedural and substantive grounds. First, he argues that the second claim was not exhausted because Mr. Colon failed to raise it in federal constitutional terms on direct appeal. Next, the respondent contends that the second and third claims are barred because they were rejected in state court on adequate and independent state procedural grounds. Finally, he argues that ...


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