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April 9, 2004.

JEFFREY ELLIOTT, Petitioner -against- ROBERT KUHLMANN, Respondent

The opinion of the court was delivered by: DEBRA FREEMAN, Magistrate Judge



In 1988, petitioner Jeffrey Elliott ("Petitioner") was convicted in the New York State Supreme Court, Bronx County, of murder in the second degree and criminal possession of a weapon in the second degree, and was sentenced to concurrent indeterminate terms of imprisonment of 25 years to life for the murder count and five to 15 years for the weapons possession count. In 1997, Petitioner, proceeding pro se, filed a petition in this Court for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction. At the time he filed his habeas petition, Petitioner was incarcerated at the Sullivan Correctional Facility in Fallsburg, New York, although he has since been transferred to the Great Meadow Correctional Facility in Comstock, New York.

  Petitioner's claims in this Court have not yet been resolved, in part because of Respondent's continued difficulty obtaining the transcript of Petitioner's trial, despite numerous attempts since the commencement of this proceeding. Finally, in November 2003, Petitioner wrote to the Court and requested that summary judgment be granted in his favor, arguing that the failure of Respondent to comply with a court order to produce the trial transcript justified the issuance of the writ, and that too much time had passed for the Court to review the petition fairly or to hold a reconstruction hearing. At the time of that summary judgment request, the case was pending before the Honorable George B. Daniels,*fn1 who, upon receiving Petitioner's letter, referred the matter to me for a report and recommendation. Since then, the case has been reassigned to the Honorable P. Kevin Castel. (Dkt. 21.)

  Liberally construed,*fn2 Petitioner's claims challenge his conviction on the grounds that: (1) Petitioner received ineffective assistance of trial counsel; (2) Petitioner was denied a fair trial because the prosecutor made remarks during trial that were unduly prejudicial; (3) the evidence presented at trial was legally insufficient to support the verdict, in light of the autopsy results, which purportedly conflicted with the testimony of prosecution witnesses;*fn3 and (4) Petitioner was denied the right to counsel at various pretrial proceedings, including a line-up.*fn4 (See Pet. ¶ 12.) Respondent argues that the petition should be dismissed because the claims raised are not exhausted, are procedurally barred, are without merit, or some combination thereof. (See Affidavit of Nancy D. Killian, Assistant District Attorney, sworn to Aug. 13, 1998 (hereinafter "Killian Aff.") ¶ 12; Respondent's Memorandum of Law in Opposition to Petitioner's Application for a Writ of Habeas Corpus, filed Aug. 11, 1998 (hereinafter "Resp. Mem."), attached to Killian Aff. at 4-25.)

  For the reasons set forth below, I recommend that, despite the passage of time, Petitioner's request for summary judgment be denied. I further recommend that the petition be dismissed on procedural grounds. This basis for dismissal would obviate any arguable need for a trial transcript or a reconstruction of the trial proceedings.


 I. Factual Background

  As this Court does not have the transcript of Petitioner's trial, the facts set forth herein are taken largely from the briefs submitted by the parties to the Appellate Division on Petitioner's direct appeal of his conviction.*fn5 See Douglas v. Portuondo, 232 F. Supp.2d 106, 109 n.1 (S.D.N.Y. 2002) (where, in habeas proceeding, trial transcript is not available, facts may be derived from the parties' submissions); see also Rodriguez v. Fischer, No. 01 Civ. 3993 (AKH), 2002 WL 1492118, at *1 n.1 (S.D.N.Y. July 11, 2002) (same); Polanco v. Scully, No. 92 Civ. 3688 (JG), 1996 WL 1088918, at *1 n.1 (E.D.N.Y. Sept. 10, 1996) (same).

  According to the testimony that was apparently offered at trial, on March 31, 1984, Petitioner was working at the Bojangles Restaurant, at 77-71 Gun Hill Road in the Bronx, together with Octavia Nelson ("Nelson") and Stewart Oppenheimer ("Oppenheimer"). (See Motion to Dismiss, Ex. 5 at 4.) After Oppenheimer went upstairs to his office, Petitioner and Nelson had an argument regarding the stocking of supplies. (See id.) At some point during that argument, Nelson's friend, Carlos Concepcion ("Concepcion"), entered the restaurant. (See id., Ex. 4 at 3.) When Nelson told him what was happening, Concepcion left and returned with Nelson's boyfriend, Lincy Hart ("Hart"), who himself started arguing with Petitioner. (See id., Ex. 5 at 4.) This argument ended with Petitioner telling Hart that they should meet after work, apparently for a fight. (See id.) At that point, Hart left the restaurant with Concepcion and recruited several friends for the anticipated fight with Petitioner. (See id. at 4-5.) Upon returning to the restaurant with his friends, however, Hart discovered that Petitioner was no longer there. (See id. at 5.)

  The next night, Nelson was not working at the restaurant, but, together with Hart, she approached the restaurant drive-through window. (See id., Ex. 4 at 5.) Petitioner came to the window and again began arguing with Hart. (See id.) When Nelson and Hart left to join Concepcion and other friends across the street, Petitioner went to the restaurant cashier, retrieved a pouch, and then left the restaurant. (See id., Ex. 5 at 5.) Once outside the restaurant, Petitioner again argued with Hart. (See id.) Finally, the two men approached each other, and, when they were standing face to face in the parking lot, Petitioner drew a handgun and shot Hart once in the chest. (See id.) The shooting was witnessed by both Nelson and Concepcion. (See id.) Hart later died of his wounds at North Central Bronx Hospital. (See id. at 6.)

  In December of 1986, Petitioner was found living in Ashfield, North Carolina. (See id.) He was brought back to Bronx County and placed in a line-up, where he was identified by Nelson. (See id.)

 II. Procedural History

  A. Trial

  Petitioner was tried by jury in the New York Supreme Court. Petitioner, Nelson, Concepcion, Oppenheimer, a medical examiner, and members of the police department testified at trial. (See Motion to Dismiss, Ex. 5.) The jury found Petitioner guilty, and the court entered a judgment of conviction on February 24, 1988.

  B. Petitioner's Section 440.10 Motion

  Petitioner timely filed a notice of appeal on March 2, 1988. (See id., Ex. 2 at 2.)*fn6 On May 30, 1988, however, prior to perfecting his appeal, Petitioner filed a pro se motion under New York Criminal Procedure Law § 440.10 seeking an order vacating his conviction. In his Section 440.10 motion, Petitioner claimed that he had received ineffective assistance of trial counsel and that the prosecution had knowingly used false evidence at trial. (See id., Ex. 1, Motion at 1-2.)*fn7 With respect to his ineffective assistance of counsel claim, Petitioner alleged, more specifically, that his trial counsel: (1) had failed to object to "fabricated" testimony; (2) had failed to present a proper defense at trial regarding the "inconsistent" medical evidence;*fn8 (3) had failed to file necessary motions and applications to, inter alia, suppress evidence; (4) had failed to object to "inflammatory and highly prejudicial remarks" made by the prosecutor at trial; and (5) had exhibited demeaning conduct toward Petitioner that was "a factor in [counsel's] overall representation of the case before the jury." (Id., Ex. 1, Aff. at 4.)

  The State opposed the motion to vacate, arguing, inter alia, that Petitioner's claims raised questions that "ultimately concern[] a matter of record fully adressable [sic] on appeal from the judgment." (Id., Ex. 2 at 2-4 (quoting N.Y. Crim. Proc. Law § 440.10(2)(b)).)

  By order dated July 5, 1988, the trial court denied Petitioner's motion on the ground that the issues presented were inappropriate for collateral review and should have been raised on direct appeal. (See Motion to Dismiss, Ex. 3*fn9 ("This judgment is appealable and sufficient facts appear on the record with respect to the issues raised to permit adequate review thereof upon such appeal.") (citing N.Y. Crim. Proc. Law § 440.10(2)(b)).) When this decision was issued, Petitioner did not originally seek leave to appeal it to the Appellate Division. C. Direct Appeal

  In June of 1989, Petitioner, through counsel, perfected his direct appeal to the Supreme Court of New York, Appellate Division, First Department. Despite the 1988 ruling by the trial court, however, Petitioner did not raise on direct appeal the issues that he had attempted, unsuccessfully, to raise in his Section 440.10 motion. Rather, Petitioner claimed only that the prosecutor's allegedly prejudicial conduct and inflammatory comments at trial had deprived Petitioner of his right to a fair trial. (See Motion to Dismiss, Ex. 4.)

  The State opposed Petitioner's appeal, arguing that the issues raised on appeal had not been preserved, and, in any event, were without merit. (See id., Ex. 5.) On October 5, 1989, the Appellate Division unanimously affirmed the trial court's judgment, without opinion, and also denied Petitioner's previous request to file a supplemental pro se brief. See People v. Elliott, 154 A.D.2d 236, 546 N.Y.S.2d 505 (1st Dep't 1989). Petitioner filed for leave to appeal to the Court ...

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