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