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August 27, 2003


The opinion of the court was delivered by: Denise Cote, District Judge


On January 11, 2001, Oliver Morgan's ("Morgan") petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was received by the Pro Se Office of this Court. On March 6, the case was referred to Magistrate Judge Theodore H. Katz for a Report and Recommendation ("Report"), which was issued on November 27, 2002. The Report recommends that the petition be denied, but also recommends that a Certificate of Appealability ("COA") issue with [ Page 2]

regard to one claim. Both parties have filed objections. For the reasons that follow, the petition is dismissed and no COA shall be issued.


On April 23, 1996, Morgan was convicted of two counts of murder in the second degree, kidnapping in the first degree, and criminal possession of a weapon in the third degree for the shooting deaths of his former sister-in-law Natalie Boyd and her mother Shirley Boyd, and the kidnapping of his former common-law wife and her children. Plaintiff was sentenced to three consecutive indeterminate terms of imprisonment of twenty-five years to life for the murder and kidnapping counts, consecutive to a term of five to fifteen years on the other counts. On October 21, 1999, the Appellate Division for the Second Department affirmed his conviction. The New York State Court of Appeals denied leave to appeal on February 29, 2000.

In his timely habeas petition, Morgan seeks relief on the basis of three alleged constitutional errors that occurred during the course of his trial. First, Morgan alleges the trial court improperly denied his challenge to strike a prospective juror for cause, which he claims violated his right to an impartial jury. Second, Morgan claims the trial court deprived him of his right to a fair trial by failing to show him a note that was passed [ Page 3]

between a witness and a court officer. Third, Morgan claims that the trial court erred when it found that he waived his right to be present for the delivery of the verdict. Morgan is a practicing Muslim and had objected to trial proceedings occurring on Fridays.

In his Report, Judge Katz recommends that the petition be denied, but that a COA be issued with regard to Morgan's right to be present for the verdict. The parties briefed their objections to the Report between December 2002 and May 2003.


A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636 (b)(1)(C). The court shall make a de novo determination of those portions of the Report to which objection is made. United State v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).

The Antiterrorism and Effective Death Penalty Act ("AEDPA"), changed the landscape of federal habeas corpus review by "significantly curtail[ing] the power of federal courts to grant habeas petitions of state prisoners." Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001). Under the AEDPA:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that [ Page 4]
was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decisions that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.
28 U.S.C. § 2254 (2003).

A principle of law is "clearly established" when it is a holding as opposed to dicta in a Supreme Court decision "as of the time of the relevant state-court decision." Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (citation omitted). "A state-court decision will certainly be contrary to [the Supreme Court's] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases [. . . or] if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Williams v. Taylor, 529 U.S. 362, 405-406 (2000).

The "unreasonable application" prong of Section 2254(d)(1) applies where a state court decision correctly identifies the controlling legal authority but applies it unreasonably to the facts of a particular case, or extends a legal principle from Supreme Court precedent "to a new context where it should ...

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