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ALSTON v. SENKOWSKI

July 2, 2002

JOHN ALSTON, PETITIONER,
V.
DANIEL SENKOWSKI, SUPERINTENDENT, CLINTON CORRECTIONAL FACILITY, RESPONDENT.



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

ORDER

In a Report and Recommendation dated May 21, 2002, Magistrate Judge Gabriel W. Gorenstein recommended that petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 should be dismissed because he has not established a permissible "cause" for the failure to exhaust his state court remedies and because nothing in his papers shows a fundamental miscarriage of justice (i.e., actual innocence).

After a de novo review of Magistrate Judge Gorenstein's Report and Recommendation dated May 21, 2002, respondent's objections date May 24, 2002, and petitioner's objections dated June 17, 2002,

IT IS HEREBY ORDERED that:

1. Magistrate Judge Gorenstein's "Report and Recommendation" is adopted and petitioner's application for a writ of habeas corpus is denied and the petition dismissed with prejudice on the grounds set forth in the Report and Recommendation; and

2. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. — 2253 (as amended by the AEDPA); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000); Soto v. United States, 185 F.3d 48, 51-53 (2d Cir. 1997); United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997), cert. denied, 525 U.S. 953, 119 S.Ct. 384, 142 L.Ed.2d 318 (1998).

SO ORDERED.

REPORT AND RECOMMENDATION

I. BACKGROUND

In this pro se petition brought pursuant to 28 U.S.C. § 2254, petitioner John Alston seeks a writ of habeas corpus to set aside a judgment of conviction issued on January 11, 1996, by the Supreme Court, Bronx County. See Petition for Writ of Habeas Corpus, dated February 26, 2001 (hereinafter "Petition"). He is currently incarcerated at the Clinton Correctional Facility in Dannemora, New York pursuant to the judgment of conviction.

A. State Court Proceedings

At trial, the prosecution produced evidence, including two eyewitnesses, that Alston, a drug dealer, had used a gun to kill another drug dealer in April 1993 and had also used a gun to kill one of his customers in January 1994. See Brief for Defendant-Appellant, dated October 23, 1998 ("App. Brief") (reproduced as Exhibit 1 to Affidavit in Opposition to Petition for Habeas Corpus, dated September 2001) (hereinafter "Respondent Aff."), at 3, 7-25. Alston was convicted, following a jury trial, of two counts of Murder in the Second Degree (New York Penal Law § 125.25(1)), and two counts of Criminal Possession of a Weapon in the Third Degree (New York Penal Law § 265.02(4)). Petition at 1. He was sentenced as a predicate felon to indeterminate terms of 25 years to life on each of the murder counts, to run consecutively, and 3-1/2 to 7 years on each of the weapons possession charges, to run consecutively to each other and concurrently with the murder sentences. Petition at 1-2.

On September 30, 1999, the Appellate Division affirmed Alston's conviction. People v. Alston, 264 A.D.2d 685, 696 N.Y.S.2d 28 (1st Dep't 1999). The Court ruled on the four issues as follows: (1) The Court held that the defendant had "acquies[ed] to the court's rulings" on the bench warrants and therefore had failed to preserve his claim. While it declined to review the claim "in the interest of justice," it held that even if it had considered this claim it would have found that "the [trial] court properly exercised its discretion in precluding such inquiry." (2) The Court found that the trial court had "properly precluded defense counsel from eliciting concededly hearsay testimony from two alibi witnesses, since defendant never provided any cogent reason for departure from the hearsay rule" and that to the extent that Alston was raising any constitutional claim, it was unpreserved. (3) The Court held that the trial court properly denied defendant's severance motion "since there was an overlap of evidence between the two indictments" and "in any event, defendant ...


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