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April 23, 2004.

CHANG FE LIN, Petitioner, -against- GARY H. FILION, Superintendent, Coxsackie Correctional Facility, Respondent

The opinion of the court was delivered by: VICTOR MARRERO, District Judge


Petitioner Chang Fe Lin, ("Petitioner"), pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in the New York State Supreme Court, New York County on three counts of robbery. Petitioner takes issue with two evidentiary rulings made by the trial court admitting testimony about a pretrial identification of him by a witness and by a police officer.

Magistrate Judge Michael H. Dolinger, to whom this Court referred the matter, issued a Report and Recommendation (the "Report") dated March 19, 2004, recommending that the writ be denied and the petition be dismissed with prejudice. The Report is incorporated and attached hereto. Petitioner's original date to file objections to the Report was March 29, 2004. Responding to a letter from Petitioner dated March 21, 2004 in which he indicated that he had been moved to another correctional facility, the Court inferred that Petitioner had not received the Report. Accordingly, the Court had a copy of the Report forwarded to Petitioner at the address he gave and extended the deadline for submission of objections to April 15, 2004. To date, Petitioner has filed no objections.

  Pursuant to 28 U.S.C. § 636(b)(1)(C), any portion of a Magistrate Judge's Report and Recommendation to which objection is made is subject to de novo review. The Court is also authorized to accept, reject, or modify, in whole or in part, the Magistrate Judge's findings or recommendations. Accordingly, this Court, having received no objections to the Report, reviewed the full record of the petition, including each of the issues Petitioner raises therein, and considered Magistrate Judge Dolinger's analysis and conclusions with respect to them. On this basis the Court dismisses the petition.

  Magistrate Judge Dolinger, putting aside respondent's claims that several of Petitioner's claims remained unexhausted, concluded instead that the petition was meritless and should be dismissed because it fails to demonstrate a violation of Petitioner's constitutional rights. The Court agrees. It finds no meritorious basis in law to support Petitioner's challenge to his conviction on any of the grounds he asserts with respect to the identification of him by either the photographic array or by the police officer who testified to having seen Petitioner in the company of a fellow robber sometime after the robbery at issue. In examining the record and the law pertinent to this petition, the Court concludes that there is a sufficient basis in fact for the verdict and sentence reflected in the judgment entered against Petitioner. The Court finds no clear error of fact or law in the Report, and concludes that the principles and authorities relied upon by Magistrate Judge Dolinger in recommending denial of the petition are sufficiently controlling to warrant dismissal of each of Petitioner's arguments. Accordingly, the Court accepts and adopts the Report in its entirety and denies the writ.


  For the reasons discussed above, it is

  ORDERED that the petition of Chang Fe Lin for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied.

  Because Petitioner has not made a substantial showing of the denial of a constitutional right, this Court will not grant a certificate of appealability. See Lucidore v. New York State Division of Parole, 209 F.3d 107, 112 (2d Cir.), cert. denied, 121 So. Ct. 175 (2000). The Clerk is directed to close this case. SO ORDERED. Chang Fe Lin v. Gary H. Filion

  02 Civ 2878

  Attachment to the Court's Decision and Order dated April 23, 2004 REPORT & RECOMMENDATION

  Petitioner Chang Fe Lin seeks a writ of habeas corpus to challenge his 1998 conviction in New York State Supreme Court, New York County, on two counts of Robbery in the First Degree and one count of Robbery in the Second Degree. Petitioner is presently serving two concurrent prison terms of nine to eighteen years and a concurrent term of five to ten years.

  In support of Mr. Lin's application, he challenges two evidentiary rulings of the state trial court, one permitting testimony about a pretrial photographic identification of him by a witness, and the other authorizing a police officer's testimony that he had seen Lin together with his alleged fellow robber one year after the robbery. Lin also complains that he was denied a hearing on whether this identification of him was the fruit of an illegal search, that the prosecutor's summation violated his right to a fair trial and that he was denied a statutory right to challenge his sentencing status as a predicate felon.

  Respondent has opposed the petition. In doing so, he argues that all of the petitioner's claims are unexhausted and procedurally barred, and that they are also otherwise meritless. For the reasons that follow, we recommend that the writ be denied and the petition dismissed with prejudice.


  Petitioner's conviction stemmed from the July 14, 1995 robbery of a restaurant on Ninth Avenue in Manhattan. That robbery was conducted by two men, one of whom — named Lin Pong — was a former employee of the establishment. According to the victims' trial testimony, Fong and the second man, whom they identified as petitioner, entered the restaurant with guns and ordered the owner, Min Cheng, and his wife, together with three employees, into the basement. (Tr. 310-14, 438-41). Fong then took the owner's wife back upstairs to open the cash register while petitioner held the others downstairs at gunpoint. (Tr. 339-40). The men took more than $2,000.00 and then fled together after threatening Mr. and Mrs. Cheng with death if they reported the crime. (Tr. 442-49, 472, 317-21). Once the robbers had left, Mr. Cheng called the police while his wife went to the street and returned with several police officers. (Tr. 322-25, 446-49). They told the police at the time that one of the robbers was a former employee, and later in the day Mr. Cheng identified petitioner from a photo array as the second gunman. (Tr. 322-25, 389-92, 446-49, 458, 553-60).

  Lin and Fong were not arrested until October 2, 1997. That day Cheng identified the two men in separate lineups. (Tr. 383-87, 407-11, 418-19, 347-48).

  A New York County grand jury returned an indictment of petitioner in December 1997, charging him with two counts of first-degree robbery and two counts of second-degree robbery. (See Declaration of Assistant Attorney General Darian B. Taylor, executed Dec. 4, 2002 ("Taylor Decl."), Ex. A, pp. 25-27).*fn1 Petitioner filed an omnibus pretrial motion that sought, inter alia, to suppress all identification testimony, claiming irremediable taint from suggestive photographic and lineup identification procedures. (See id. at pp. 42-54). The court (the Hon. Felice Shea, S.C.J.) conducted a suppression hearing and denied Lin's application, finding that the procedures "were conducted in a fair and impartial manner." (Tr. 626).

  Trial commenced on July 6, 1998 before Justice Shea and a jury. On July 9, following the presentation of all evidence, the jury convicted Lin on both counts of first-degree robbery and one count of second-degree robbery. (Tr. 745-46). It also acquitted him on the second count of second-degree robbery. (Tr. 746). Justice Shea sentenced Lin on September 22, 1998, as a predicate felon, to three concurrent ...

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