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April 23, 2003


The opinion of the court was delivered by: Michael B. Mukasey, United States District Judge.


Quoro Martinez petitions pro se, pursuant to 28 U.S.C. § 2254 (2000), challenging his state court conviction. In a Report and Recommendation dated August 13, 2001 ("Report"), Magistrate Judge Peck recommended the dismissal of Martinez's petition. For the reasons stated below, the Report is adopted, the writ is denied, and the petition is dismissed.


The following is a summary of the relevant facts set forth more fully in the Report, familiarity with which is assumed. On May 12, 1995, Martinez was convicted in Supreme Court, New York County, of attempted robbery, robbery, burglary, and criminal impersonation. (Report at 2) Martinez was tried along with three co-defendants: Garfield Ewan, Willis Galloza, and Jesus Perez. The crimes occurred at a brothel, the Lucky 21 Club. (Id.) Martinez was sentenced to an aggregate sentence of 14 to 42 years imprisonment. (Pet. ¶ 3)

Martinez's habeas corpus petition alleges that he was "denied a fair trial where the trial court denigrated the defense team in front of the jury, unduly interfered with the defense team in front of the jury, unduly interfered with the defense team's effort to cross-examine witnesses, actively assisted the prosecution in presenting its case, and issue[d] faulty rulings blatantly favoring the prosecution." (Pet. ¶ 12(A))

Martinez's direct appeal to the First Department, for which he had counsel, raised three grounds. The only claim relevant to this petition was his claim that he was denied a fair trial by the trial court's excessive interference and biased rulings in the prosecution's favor. (Thomas Aff., Ex. D, Martinez 1st Dep't Br. at 30-50) On appeal, Martinez alleged that the trial court "denigrated the defense team and communicated its disbelief of the defense case by accusing counsel of trying to trick prospective jurors, by making faces during counsel's cross-examination, and by yelling at counsel in front of the jury." (Id. at 30-35) Martinez also alleged that the "trial court unduly interfered with the presentation of evidence to the detriment for the defense and the benefit of the prosecution." (Id. at 35-46) Martinez argued that "the court further demonstrated its bias by issuing improper rulings in the prosecution's favor." (Id. at 46-50) The State argued that Martinez's judicial misconduct claims were unpreserved and meritless.

On March 9, 2000, the First Department affirmed Martinez's conviction, along with the convictions of his three codefendants. People v. Martinez, 270 A.D.2d 69, 705 N.Y.S.2d 35 (1st Dep't 2000). With regard to the defendants' claim of judicial misconduct, the First Department held, in full:

By failing to object to the court's conduct as a whole or seek any remedy, defendants' contention that the trial court was biased and excessively interfered in the proceedings is not preserved (People v. Charleston, 56 N.Y.2d 886), and we decline to review it in the interest of justice. Were we to review this claim, we would find from our review of the entire record, that the court's interjections did not usurp the role of the attorneys, that the court's overall conduct did not convey to the jury any personal opinion regarding the evidence, and that none of the defendants were deprived of a fair trial (see People v. Moulton, 43 N.Y.2d 944; People v. Gonzalez, 228 A.D.2d 340, lv. denied 88 N.Y.2d 1021).
Martinez, 270 A.D.2d at 70, 705 N.Y.S.2d at 36. The New York Court of Appeals denied leave to appeal on July 25, 2000. People v. Martinez, 95 N.Y.2d 955, 714 N.Y.S.2d 6 (2000).

Martinez filed a timely petition alleging that he was denied a fair trial because of the trial court's conduct. The Report describes a number of the trial court's challenged actions in detail (Report at 4-15), and I will not repeat these descriptions here. The State argues that this claim is barred from federal review because the First Department's decision rejecting the claim was based on an adequate and independent state law ground. (Resp't's Mem. at 10-22) Magistrate Judge Peck concludes that the First Department's finding that Martinez procedurally defaulted on his judicial misconduct claim is an adequate and independent finding. (Report at 17-26) The Report finds that Martinez failed to allege cause for the default, or that he suffered prejudice as a result of the alleged violation, or that a fundamental miscarriage of justice would result if the claim is not addressed. (Report at 26-27) Finally, Magistrate Judge Peck concluded that even if the court were to review Martinez's claim on the merits, the trial judge's alleged misconduct did not deprive Martinez of a fair trial. (Report at 27-32)

Martinez filed objections to the Report on January 15, 2002. ("Objections") He argues that the First Department incorrectly barred a legitimately preserved issue on appeal and thus the state court finding of procedural default is not "adequate." (Objections at 2-10) He states that a fundamental miscarriage of justice will occur if this court refuses to review his claim (Objections at 11), and argues that his claim has merit. (Objections at 11-14)


A district court reviewing a magistrate judge's report may adopt those parts of the report to which no specific objection is raised, provided the findings are not clearly erroneous. See Fed.R.Civ.P. 72(b); 28 U.S.C. § 636 (b)(1) (2000); Thomas v. Am, 474 U.S. 140, 149 (1985). With respect to those parts of the report to which any party objects, the court must make a de novo determination. See United States v. Raddatz, 447 U.S. 667, 673-76 (1980); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). In this case, Martinez objects to all relevant aspects of Magistrate Judge Peck's recommendation. Accordingly, I will review the entire Report de novo.


Federal habeas review of a state court judgment of conviction is generally precluded when that judgment "rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). A procedural default does not bar consideration of a federal claim unless the state court "clearly and expressly states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989) (citation and internal quotation marks omitted). An adequate and independent finding of procedural default will bar federal review of the federal claim, unless the habeas petitioner can show "cause" for the default ...

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