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United States District Court, Southern District of New York

June 12, 2003


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

On November 4, 2002, Magistrate Judge George A. Yanthis issued a Report and Recommendation ("Report") recommending that the Court dismiss petitioner Kenneth E. Bingham's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed objections within the time provided.

In reviewing the Report and Recommendation, the 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 2002). "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 is required to make a de novo determination as to the aspects of the Report to which objections are made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).

Petitioner, in a letter dated January 5, 2003, makes general objections to the Report and argues that he needs legal assistance in order properly to prepare his objections to the Report. In his January 5, 2003 letter, Petitioner's only specific objection is to Judge Yanthis' recommendation to dismiss Petitioner's Fourth Amendment claim. Petitioner argues that his "Fourth Amendment claim was not litigated fully and fairly by the state court." Petitioner's objections are conclusory and general, and do nothing more than take issue with Judge Yanthis' findings for the simple reason that they are not favorable to the Petitioner. Objections that are merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition normally will not suffice to warrant de novo review of the magistrate's recommendations. See Vargas v. Keane, No. 93-CV-7852 (MBM), 1994 WL 693885 (S.D.N.Y. Dec. 12, 1994); Klawitter v. Chater, No. 93-CV-0054E, 1995 WL 643367 at *1 (W.D.N.Y. Oct. 18, 1995); Murphy v. Grabo, No. 94-CV-1684 (RSP), 1998 WL 166840 at *1 (N.D.N.Y. Apr. 9, 1998). Although the nature of Petitioner's objections merits only a clear error review, in the interest of fairness the court has conducted a de novo review and finds Judge Yanthis' Report embodies a characteristically well-reasoned and sound analysis of Petitioner's claims. The Court concludes that Judge Yanthis' findings are correct, and hereby adopts the Report in its entirety with the exception of the first three sentences of the section captioned "B. Appellate Counsel."

Petitioner's request for appointment of counsel is denied. On February 22, 2002, Judge Yanthis' denied Petitioner's application for appointment of counsel with leave to renew. Judge Yanthis' order further stated that the Court would sua sponte reconsider petitioner's application "if, upon review of the record, the Court determines that the petition may have merit, or that complex issues are involved or that appointment of counsel is otherwise shown to be justified." Judge Yanthis Order dated February 22, 2002. Judge Yanthis did not find such grounds for reconsideration of Petitioner's application. The undersigned is also of the view that appointment of counsel is warrantless. Petitioner's claims do not satisfy "a threshold showing of some likelihood of merit," Hendricks v. Coughlin, 114 F.3d 390, 393-94 (2d Cir. 1997), and the Court does not find any other reason to grant Petitioner's application.

The Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1) (West 2002). A certificate will be granted "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(2) (West 2002); see generally United States v. Perez, 129 F.3d 255, 259-60 (2nd Cir. 1997) (discussing the standard for issuing a certificate of appealability). The Court finds that Petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appeal. 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).

Judge Yanthis' Report is hereby adopted in its entirety with the exception of the first three sentences of the section captioned "B. Appellate Counsel." The Report follows.



Petitioner Kenneth Bingham ("petitioner"), proceeding pro se, has filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, I respectfully recommend that the Court deny the petition in its entirety.


On April 9, 1997, following a jury trial, petitioner was convicted of two counts of third degree criminal possession of a weapon and one count of fourth degree criminal possession of stolen property. He was subsequently sentenced, as a persistent felony offender, to concurrent terms of imprisonment of fifteen years to life on each count. Petitioner is presently incarcerated at the Elmira Correctional Facility.

Petitioner, by and through counsel, timely appealed the judgment of conviction to the Appellate Division, Third Department. On January 13, 1998, petitioner filed a motion to vacate the judgment, which the trial court denied. Petitioner appealed the denial of his motion to vacate to the Third Department, which consolidated petitioner's appeals. On February 5, 1998, petitioner's counsel filed an appellate brief. On March 7, 1998, petitioner objected to his appellate counsel's representation and requested time to file a supplemental pro se brief. The Third Department granted petitioner's request, and he timely filed a pro se brief. By decision and order dated July 8, 1999, the Third Department reversed the judgment of conviction on both counts of criminal possession of a weapon and affirmed the judgment of conviction for possession of stolen property. See People v. Bingham, 263 A.D.2d 611, 692 N.Y.S.2d 823 (3d Dep't 1999). The New York Court of Appeals denied petitioner leave to appeal on August 30, 1999. See People v. Bingham, 93 N.Y.2d 1014, 719 N.E.2d 934, 697 N.Y.S.2d 573 (1999).

On December 14, 1999, petitioner filed a writ of error coram nobis on the ground of ineffective assistance of appellate counsel. On February 22, 2000, the Third Department denied petitioner's writ. On April 24, 2000, petitioner filed a second motion to vacate, which the trial court denied on May 22, 2000. The Third Department denied petitioner leave to appeal. On October 26, 2000, the Court of Appeals also denied petitioner leave to appeal. See People v. Bingham, 95 N.Y.2d 904, 739 N.E.2d 1149, 716 N.Y.S.2d 644 (2000). Thereafter, on January 14, 2001, petitioner timely filed a Petition for a Writ of Habeas Corpus.

On April 19, 2001, petitioner filed a third motion to vacate, which the trial court denied on August 22, 2001. The Third Department denied petitioner leave to appeal on October 31, 2001. On December 19, 2001, the Court of Appeals also denied petitioner leave to appeal. See People v. Bingham, 97 N.Y.2d 679, 764 N.E.2d 398, 738 N.Y.S.2d 294 (2001). On April 2, 2002, petitioner filed a motion for reconsideration with the Third Department, which denied petitioner's motion on May 24, 2002.

By letter dated December 28, 2001, petitioner requested leave to amend his habeas petition. By Order dated March 28, 2002, this Court allowed petitioner until May 13, 2002 to file an amended petition. On April 29, 2002, petitioner filed the present Amended Petition for a Writ of Habeas Corpus based upon the following grounds: (1) arrest without probable cause; (2) denial of his right to testify before the grand jury; (3) ineffective assistance of trial counsel; (4) ineffective assistance of appellate counsel; and (5) improper use of petitioner's prior out-of-state convictions in sentencing him as a persistent felony offender.


I. Fourth Amendment claim

The Supreme Court has sharply restricted habeas corpus relief on Fourth Amendment grounds, holding that "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search and seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494 (1976). Subsequent to Powell, the Second Circuit specified the two instances in which a habeas court may properly review a Fourth Amendment claim: "(a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citing Gates v. Henderson, 568 F.2d 830, 839-40 (2d Cir. 1977) (en banc)). The Second Circuit has also held that article 710 of New York Criminal Procedure Law, which governs motions to suppress evidence, provides a defendant with an opportunity for full and fair litigation of Fourth Amendment claims. See McPhail v. Warden, Attica Correctional Facility, 707 F.2d 67, 69 (2d Cir. 1983). Further, an unconscionable breakdown will be found where the State courts "failed to conduct `a reasoned method of inquiry into relevant questions of fact and law.'" Capellan, 975 F.2d, at 71 (quoting Shaw v. Scully, 654 F. Supp. 859, 864 (S.D.N.Y. 1987)).

Here, in his first claim, petitioner seeks habeas corpus relief on the ground that he was arrested without probable cause. Petitioner does not argue, however, that he was denied an opportunity to fully and fairly litigate his Fourth Amendment claim in the state courts. Indeed, the trial court fully considered this claim during a pretrial suppression hearing which resulted in a ruling that the police had probable cause to arrest petitioner and, therefore, that the evidence in question was admissible. Petitioner again argued his Fourth Amendment claim on appeal to the Second Department, which upheld the trial court's ruling. He then raised this issue in his application for leave to appeal to the Court of Appeals, which was denied. Petitioner's Fourth Amendment claim was therefore fully and fairly litigated in the state courts. Accordingly, I respectfully recommend that his first claim must be dismissed.*fn1

II. Right to testify before grand jury

Petitioner, in his second claim for habeas relief, alleges that he was not allowed to testify before the grand jury in violation of his Fourteenth Amendment right to due process. "Under federal law, any defects connected with a grand jury's charging decision are cured by the petit jury's conviction, because the trial conviction establishes not only probable cause to indict, but proof of guilt beyond a reasonable doubt." Thompson v. Kelly, No. 97-CV-258H, 1999 WL 166820, at *2 (W.D.N.Y. Feb. 4, 1999) (citing United States v. Mechanik, 475 U.S. 66, 70 (1986)). In sum, claims of error relating to state grand jury proceedings are not cognizable on federal habeas review, since "[t]he right to testify before a grand jury is a state statutory right, and is not of constitutional dimension." Green v. Artuz, 990 F. Supp. 267, 273 (S.D.N.Y. 1998). Accordingly, I respectfully recommend that petitioner's second claim must be dismissed.

III. Ineffective assistance of counsel

Petitioner's third and fourth claims for habeas relief are founded upon his allegations of ineffective assistance of trial and appellate counsel. In order to prevail on his claims of ineffective assistance of counsel, petitioner must demonstrate (1) that his attorney's performance "fell below an objective standard of reasonableness" and (2) that there is a "reasonable probability" that, but for counsel's error, "the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-89, 693-94 (1984).*fn2 Moreover, "judicial scrutiny of counsel's performance must be highly deferential . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.

A. Trial counsel

Petitioner first complains that trial counsel failed to secure petitioner's right to testify before the grand jury. Given that any defect in the grand jury proceeding was cured by petitioner's subsequent conviction, as previously discussed, "[i]t necessarily follows as a matter of law that petitioner cannot establish that any errors made by his trial counsel with respect to the grand jury proceeding prejudiced him, thereby foreclosing the possibility of a Sixth Amendment violation." Thompson, 1999 WL 166820, at *2 (quotation and citation omitted). Next, petitioner argues that trial counsel's failure to submit a memorandum of law prior to the suppression hearing and to call witnesses at the suppression hearing amounted to ineffective assistance of counsel. Petitioner does not specify the names of the witnesses he complains were not called or the nature of their testimony; nor does he demonstrate that counsel's submission of a memorandum would have changed the outcome of the hearing, particularly in light of the hearing record which reflects defense counsel's vigorous participation. Similarly, petitioner's conclusory allegations regarding trial counsel's failure to do investigative work and to contact potential witnesses do not establish that the result of the proceedings would have been different if not for counsel's error — or even that his behavior was erroneous at all. Finally, while petitioner alleges that trial counsel failed to present mitigating evidence at petitioner's persistent felony offender hearing, petitioner does not discuss the nature of said evidence or otherwise demonstrate that he would have benefitted from its introduction at the hearing. On the whole, the record clearly indicates that defense counsel's conduct both before and during trial comported with the adversarial nature of a criminal proceeding, and that counsel provided adequate, effective and meaningful assistance. In sum, based on a review of the record, there is no reason to conclude that trial counsel's behavior — if erroneous — resulted in any prejudice to petitioner. Accordingly, I respectfully recommend that petitioner's third claim is without merit and must be dismissed.

B. Appellate counsel

Petitioner claims he was denied effective assistance of appellate counsel due to counsel's failure to raise certain claims in the appellate brief and counsel's conflict of interest, allegedly caused by a personal relationship between petitioner and appellate counsel. In the first instance, petitioner's claims of a personal relationship with appellate counsel are completely unfounded, wholly unsupported by the record and vigorously denied by appellate counsel. As such, this allegation provides no basis for habeas relief. As to appellate counsel's failure to raise certain claims on direct appeal, petitioner cannot demonstrate the requisite prejudice. Petitioner's pro se supplemental brief presented all of the issues he wished to raise; petitioner's conviction was reversed in part based upon an issue raised in his supplemental brief. Thus, petitioner cannot demonstrate that, but for appellate counsel's error, the result of his direct appeal would have been different. Accordingly, I respectfully recommend that petitioner's fourth claim is meritless and must be dismissed.

IV. Sentencing as persistent felony offender

In his fifth claim for habeas relief, petitioner contends that the trial court erroneously sentenced him as a persistent felony offender based upon prior out-of-state felony convictions which have no New York counterpart. Petitioner was sentenced pursuant to New York Penal Law § 70.10, which defines a persistent felony offender as one "who stands convicted of a felony after having previously been convicted of two or more felonies, as provided in paragraphs (b) and (c) of this subdivision." N.Y. Penal Law § 70.10(1)(a). If a prior conviction occurred in another jurisdiction, "it qualifies as a predicate felony as long as the crime carried a sentence of imprisonment of at least one year and the defendant was actually imprisoned prior to commission of the instant offense." McCool v. New York State, 29 F. Supp.2d 151, 162 (W.D.N.Y. 1998) (citing N.Y. Penal Law § 70.10(1)(b)(i), (ii)). Therefore, contrary to petitioner's assertions, "the underlying acts of a federal or out-of-state felony need not constitute a felony under New York law to qualify as a predicate felony for purposes of sentencing as a persistent offender." Griffin v. Mann, 156 F.3d 288, 291 (2d Cir. 1998). Further, also contrary to petitioner's assertions, the Second Circuit has held that § 70.10 does not violate Equal Protection. See id. at 292. Accordingly, I respectfully recommend that petitioner's fifth claim must be dismissed.


For the foregoing reasons, I respectfully recommend that the instant petition for a writ of habeas corpus be denied in its entirety.


Pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 8(b)(3) of the Rules governing § 2254 proceedings, the parties shall have ten (10) days from receipt of this Report to serve and file written objections to this Report and Recommendation. If copies of this Report are served upon the parties by mail, the parties shall have thirteen (13) days from receipt of this Report to file and serve written objections. See Rule 11 of the Rules governing § 2254 proceedings; Fed. R. Civ. P. 6(e). Such objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of The Honorable Laura Taylor Swain, United States District Court, Southern District of New York, 500 Pearl Street, New York, New York 10007, and to the chambers of the undersigned at 300 Quarropas Street, White Plains, New York 10601.

Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered. See Small v, Secretary of H.H.S., 892 F.2d 5, 16 (2d Cir. 1989).

Requests for extensions of time to file objections must be made to the Honorable Laura Taylor Swain and not to the undersigned.

Dated: November ___, 2002 White Plains, New York
Respectfully Submitted,

______/S/___________________________ GEORGE A. YANTHIS UNITED STATES MAGISTRATE JUDGE

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