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United States District Court, S.D. New York

April 22, 2004.

RAHEEM DEVINO, Petitioner, -v- GEORGE DUNCAN, Respondent

The opinion of the court was delivered by: DENISE COTE, District Judge


Raheem DeVino ("DeVino") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his 1996 murder conviction following a jury trial.*fn1 DeVino asserts three claims in his petition: (1) the trial court erroneously denied his pretrial suppression motion without a hearing; (2) evidence of an uncharged drug crime was improperly admitted at trial; and (3) the prosecutor made improper remarks during the opening and closing statements that deprived DeVino of a fair trial.

  The case was referred to Magistrate Judge Frank Maas for a Report and Recommendation ("Report"), which was issued on February 11, 2004. The Report recommends that the petition be denied, and that a certificate of appealability not issue. DeVino has filed objections to the Report. This Opinion adopts the Report. The petition is denied.


  The facts established at trial are set forth in the Report, and are summarized here. In February 1994, DeVino lived with his childhood friend, Dorothy Pena ("Pena"), and her boyfriend, Steve McCormick ("McCormick"), in Pena's apartment. Pena occasionally transported drugs for DeVino. On the morning of February 20, 1994, DeVino woke McCormick and asked McCormick to accompany him to an apartment on the tenth floor of their building. DeVino explained that he had "bucked two bitches in the head for fucking up some work" and wanted to retrieve the bullet casings from the location of the shooting. DeVino opened the apartment on the 10th floor with a key, and, from the doorway, McCormick heard a person moaning in what seemed to be a "last minute of life." McCormick went back downstairs and returned to bed. About five minutes later, DeVino came back downstairs, having located only one bullet casing. DeVino placed a black .9 millimeter semiautomatic pistol under his mattress, and told McCormick that he had put a pillow over one victim's head before shooting her.

  Shortly thereafter, DeVino called his girlfriend, Tawana Parsons ("Parsons"), and asked her to meet him at the building. When Parsons arrived, DeVino told her that he had shot two people who had "smoked his stuff." Several hours later, McCormick overheard DeVino telling Quinzel Taylor ("Taylor") that the .9 millimeter gun they had jointly purchased for "protection" now had "two bodies on it." DeVino repeated that he had shot one woman in the head through a pillow. DeVino added that he used a towel to clean his fingerprints from the scene. Pena also overheard DeVino tell others that he "had to do the two bitches on the tenth floor upstairs."

  Two days later, on February 22, the police discovered the bodies of Toni Pate ("Pate") and Bridget Robinson ("Robinson") in Apartment 10J. Both victims were found with pillows over their heads. One of the pillows appeared to have been pierced by a bullet. Autopsies revealed that Pate and Robinson had ingested a significant amount of cocaine approximately two hours before they were killed. In Pate's apartment, the police found a bullet casing that, along with a bullet and bullet fragments recovered during the autopsies, had characteristics consistent with .9 millimeter ammunition from a semiautomatic weapon. The police also obtained seven sets of fingerprints from the apartment, but none matched DeVino's fingerprints.

  On May 8, 1994, Pena, who had traveled with DeVino to North Carolina to make a drug delivery, was arrested after police officers found drugs during a search of her bags. DeVino was not charged. In August, after pleading guilty to the drug charges, Pena disclosed information to Detective George Daley ("Detective Daley"), one of the homicide detectives on the Pate/Robinson murders, that made DeVino a suspect in the homicides. On February 23, 1995, McCormick was arrested in New York City on charges of trespassing and resisting arrest. While at the precinct, McCormick asked to speak to a detective about the Pate/Robinson murders, and was interviewed by Detective Daley.

  The following week, DeVino and Taylor were arrested in New Bern, North Carolina. After New York City police were notified, Detective Daley traveled to North Carolina. Taylor declined to speak to Detective Daley without a lawyer, but DeVino agreed to an interview. In a signed statement, DeVino admitted to having been inside Pate's apartment, but denied that he had killed the women. DeVino explained that, on the morning of the shooting, a man known to him only as "Mel Murder" ("Mel") rushed down the stairs of the apartment building and told DeVino that he had killed the women upstairs. DeVino, on Mel's request, attempted to sanitize the murder site. When asked about Mel's whereabouts, DeVino said that Mel was no longer alive.

  The following day, in the presence of his attorney, Taylor told the detectives that DeVino had admitted to killing Pate and Robinson. Taylor also disclosed that, at some point while they were both in the North Carolina jail, DeVino had told him to tell the detectives that "Melvin did the murder."

 Pre — Trial Proceedings

  Prior to trial, DeVino filed a motion to suppress his statements to the police on the ground that they were involuntary and that his arrest was not supported by probable cause. DeVino sought a hearing pursuant to Dunaway v. New York, 442 U.S. 200 (1979).*fn2 By Order dated May 31, 1995, the trial judge granted DeVino's request for a hearing with respect to the voluntariness of his statements, but declined to hold a Dunaway hearing. According to the judge, DeVino had "failed to set forth sufficient factual allegations to warrant a suppression hearing to resolve issues of fact and law." As a result of this ruling, the prosecution was permitted to establish at trial that, when questioned by Detective Daley, DeVino denied participating in the murders, but admitting trying to clean up the crime scene for "Mel," somebody he knew in connection with a drug transaction.

  Also before trial, the prosecutor sought permission to elicit testimony at trial that the drugs that led to the arrest and conviction of Pena and Taylor had belonged to DeVino. The trial judge granted the application, finding that the evidence would "show the relationship between the parties."

 The Trial

  In his opening statement, after telling the jury that Taylor had been arrested in North Carolina on a drug charge, the prosecutor remarked that "DeVino [was] also arrested by the same detectives in New Bern, North Carolina." The trial judge overruled a defense objection to this statement. The prosecutor added that New York City detectives "had been looking for Mr. DeVino for some time now."

  In its case — in — chief, the prosecution called ten witnesses, including McCormick, Parsons, Pena and Taylor. Pena testified that she had been transporting DeVino's drugs when she was arrested in North Carolina; Taylor testified that DeVino was involved in the drug trafficking that led to Taylor's conviction. McCormick, Parson, Pena and Taylor each testified to admissions that DeVino had made to them regarding the killings or to having overheard DeVino making such admissions to others. Following each of Pena and Taylor's testimony, the judge gave a limiting instruction. DeVino did not present a defense case.

  In summation, the prosecutor noted that DeVino could not receive the death penalty in the event of a conviction, but that DeVino himself had effectively handed out a death sentence to the two women he had killed. Defense counsel objected to this statement.

  In his charge to the jury, the trial judge again emphasized that the evidence of DeVino's drug dealing with Pena and Taylor could not be considered to show that DeVino had a propensity to commit crimes. The judge reminded the jury that the evidence only had been admitted for the narrower purpose of "showing the close relationship" between the parties, and to "give the jury the full and complete background" concerning DeVino and the two witnesses.

  The jury returned a verdict of guilty on two counts of second — degree murder. On June 5, 1996, DeVino was sentenced to consecutive indeterminate prison terms of 22 years to life.

 Post — Trial Proceedings

  DeVino appealed his conviction to the Appellate Division, First Department, on three grounds: the trial court erred in denying his motion for a Dunaway hearing; evidence of an uncharged drug crime was improperly admitted at trial; and, certain remarks during the prosecutor's opening and closing statements had deprived him of a fair trial.

  The Appellate Division unanimously affirmed DeVino's conviction on October 1, 1998. People v. DeVino, 688 N.Y.S.2d 114, 114 (1st Dep't 1998). On December 11, DeVino's application for leave to appeal to the New York Court of Appeals was denied. Accordingly, his conviction became final on March 11, 1999. On December 30, 1999, DeVino moved for a writ of error coram nobis alleging ineffective assistance of appellate counsel, which motion was denied by the Appellate Division on July 6, 2000.


  The court shall make a de novo determination of those portions of the Report to which objection is made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Thereafter, the court may accept, reject, or modify, in whole or in part, the findings and recommendations of a magistrate judge. See DeLuca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994), aff'd, 77 F.3d 578 (2d Cir. 1996).

  Habeas corpus petitions are subject to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132. AEDPA prohibits a writ with respect to any claim that was adjudicated on the merits in state court unless the state court arrived at 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." 28 U.S.C. § 2254(d)(1) (emphasis added). See Williams v. Taylor, 529 U.S. 362, 412-413 (2000); Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000).

  The Report correctly concludes that DeVino's attempt to secure habeas relief based on the trial court's denial of a Dunaway hearing is without merit. DeVino's motion to suppress his statements to Detective Daley on the theory that his arrest in North Carolina lacked probable cause necessarily asserted a Fourth Amendment claim. Such a claim may be considered under habeas review when (1) the state has provided "no corrective procedures at all" to redress the alleged Fourth Amendment violations; or (2) there is a corrective mechanism, but the defendant was unable to use it because of an "unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). As the Report states, DeVino was given a full and fair opportunity to litigate his Fourth Amendment claim in state court, and there was no breakdown in the underlying process. Accordingly, habeas relief cannot be granted on this ground.

  The Report liberally construes DeVino's claim that the prosecutor improperly introduced evidence of uncharged drug crimes as a claim for the violation of DeVino's Fourteenth Amendment right to a fair trial. To prevail on a due process claim based on evidentiary errors, DeVino must show that the errors were of "constitutional dimension," such that they deprived him of "fundamental fairness." Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988). To rise to a constitutional level, an evidentiary error "must have been sufficiently material to provide a basis for conviction or to remove a reasonable doubt that would have existed on the record without it." Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (citation omitted).

  Although both New York and federal law prohibit the use of evidence of uncharged crimes to show a defendant's propensity for criminal activity, the Report correctly finds that the evidence relating to the drug connection between DeVino, Pena, and Taylor was properly admitted to explain the unique relationship between the defendant and the witnesses, and because it was inextricably interwoven with the narrative of events. See People v. Bernard, 637 N.Y.S.2d 692, 693 (1st Dep't 1996). Moreover, based on the trial record, it is clear that the prosecutor's opening statement that DeVino had been arrested in North Carolina "by the same detectives" who had arrested Taylor would not have removed from the jury a reasonable doubt that would have existed without it. The jury also heard testimony from Pena, Taylor, McCormick and Parsons that directly implicated him in the murders.

  DeVino's final claim asserts that the remarks made by the prosecutor during his opening and closing statements violated DeVino's Fourteenth Amendment right to a fair trial. The Report correctly analyzes New York's contemporaneous objection rule, and the Appellate Division's ruling on DeVino's direct appeal, DeVino, 688 N.Y.S.2d at 115, in finding that only two of the prosecutor's allegedly improper statements can be considered by this Court: the prosecutor's statement in his opening statement that allegedly accused DeVino of an uncharged crime, and a statement made in summation in which the prosecutor commented on the applicability of the death penalty.

  The prosecutor's opening remark regarding DeVino's arrest in North Carolina does not support the grant of a writ of habeas corpus. Under the circumstances presented, DeVino does not show that the trial court's denial of his motion for a mistrial based on the prosecutor's comment about his arrest was "contrary to" or an "unreasonable application of" federal law as required by AEDPA.

  The prosecutor's reference in his summation to the fact that Pate and Robinson had received the death penalty from DeVino also does not show that DeVino is entitled to habeas relief. Although the Appellate Division concluded that the prosecutor's remark had been "improper," it also held that it was "not sufficiently prejudicial to warrant reversal." DeVino, 688 N.Y.S.2d at 115. As the Report notes, DeVino has not shown that this conclusion is "contrary to" or an "unreasonable application of" clearly established federal law. Accordingly, habeas relief cannot be granted on this ground.

  In his two — page objection to the Report, DeVino, who is represented by appointed counsel, does not show that the Report contains any error. DeVino simply reiterates the legal standard governing each of his claims, and conclusorily asserts that he meets the standards. This is insufficient to challenge the findings in the Report.


  The petition for a writ of habeas corpus is denied. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998). In addition, I find, pursuant to Title 28, United States Code, Section 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962).


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