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May 28, 2004.

SUNDHE MOSES, Petitioner,
DANIEL SENKOWSKI, Superintendent of Clinton Correctional Facility, Respondent.

The opinion of the court was delivered by: STERLING JOHNSON, JR., District Judge


Petitioner Moses Sundhe ("Petitioner") brought this petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. This Court referred the petition to Magistrate Judge Lois Bloom for a Report and Recommendation ("Report"). On January 2, 2003, Magistrate Judge Bloom issued her Report, recommending that Petitioner's application be denied in its entirety. Petitioner filed Objections to the Report on October 4, 2003,*fn1 Petitioner has not, however, offered any challenges to the Report which would persuade this Court to reject Judge Bloom's recommendations. For the reasons stated herein, the Report is hereby adopted in its entirety.

  I. Standard of review for Report and Recommendation

  A district court judge may designate a magistrate judge to hear and determine any pre-trial matter pending before the district court. See 28 U.S.C § 636(b)(1). A district judge may also designate that magistrate to conduct hearings and submit to the district court proposed findings of fact and recommendations as to the disposition of the motion. Within ten days of service of the recommendation, any party may file written objections to the magistrate's report. Upon de novo review of those portions of the record to which objections were made, the district court judge may affirm or reject the recommendations. See Id. The district court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the report and recommendation to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 150 (1985). Petitioner offers specific objections to three of Judge Bloom's findings. The Court addresses each in turn. II. Evidence of Uncharged Crimes

  Petitioner objects to Judge Bloom's finding that the alleged "tone of criminality" and admission of evidence of uncharged crimes did not cause prejudice to Petitioner or deprive him of a fair trial. Judge Bloom found that the evidence admitted against Petitioner and challenged in the petition was admissible under state law. (Report at 16-18.) Further, she found that even if there had been any evidentiary error, none of the allegedly improper evidence provided the basis for conviction. (Report at 15.)

  Petitioner contends that the evidence was both illegal and prejudicial. He insists that the evidence of prior violent acts in the neighborhood was introduced with the sole purpose of showing petitioner's bad character and criminal propensity (Objections at 5, 7) and that it created an improper inference of guilt (Objections at 4). This Court does not agree with this characterization. As Judge Bloom noted (Report at 16) and Petitioner acknowledges (Objections at 4), the prior shootings were not attributed to Petitioner or related to the crime charged. Even if the evidence had concerned Petitioner, the Magistrate found that each piece of evidence was independently admissible for some other purpose. (Report at 16-18.) This Court agrees. Although the prosecution elicited testimony from Petitioner that he knew individuals who may have been involved in other violent acts in the vicinity, this does not lead to any inference that Petitioner was guilty of those acts not at issue in the charged crime. For these reasons, the Court finds that the admission of the evidence did not violate Petitioner's right to a fair trial. III. Prosecutorial Misconduct

  Petitioner also objects to Judge Bloom's finding that the prosecutor's examination of witnesses and remarks during summation at trial did not cause "substantial prejudice" that denied petitioner a fair trial. However, Petitioner merely reiterates the claims already presented in his Petition and considered and rejected by Judge Bloom.

  Judge Bloom's report correctly stated the very limited standard of review for prosecutorial misconduct in federal habeas corpus proceedings: "In order to prevail, petitioner must show more than mere trial error. Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998); Darden v. Wainwright, 477 U.S. 168, 181 (1986) ("it is not enough that the prosecutor's remarks were undesirable or even universally condemned"). The prosecutor's remarks must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden, 477 U.S. at 180 (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). None of Petitioner's objections raises claims that could meet this narrow standard.

  a. Examination of Witnesses

  Petitioner reasserts his contention that the prosecutor improperly cross-examined alibi witness Renee Flowers. Petitioner argues that the prosecutor "essentially eliminated her testimony from the record, by giving the jury the impression that she was not a credible witness," and that he used "impermissible means of impeaching her testimony." (Objections at 16, 17.) Judge Bloom already addressed these issues and found that they raise questions of state law that may not serve as the basis for federal habeas relief, absent a finding that the alleged violation denied petitioner a fair trial. (Report at 19-20.) See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (federal habeas review of state court evidentiary rulings is limited to determining whether the alleged error rose to the level of a constitutional violation). This Court finds that these alleged errors do not implicate federal constitutional principles. Having reviewed the transcript of Flowers' testimony, the Court agrees with the Magistrate that the effect of these actions was negligible. The prosecutor is entitled to impeach the credibility of opposing witnesses. Even if the admission of the extrinsic evidence violated state law, the alleged violation had minimal impact on the outcome of the trial. The Report found ample evidence placing petitioner at the scene of the crime, in opposition to the testimony of his alibi witnesses. (Report at 24.) See Floyd v. Meachum, 907 F.2d 347, 355 (2d Cir. 1990) (The certainty of conviction absent the improper statements is one factor to be considered in determining whether a prosecutor's actions create the "substantial prejudice" necessary to render a trail fundamentally unfair.)

  b. Summation

  Petitioner also reiterates his contention that the prosecutor's summation was improper and that this misconduct deprived him of a fundamentally fair trial. Yet he merely repeats the allegations made in his initial petition, and simply disagrees with Judge Bloom's findings. Having reviewed the relevant portions of the trial record, Judge Bloom's Report, and petitioner's Objections, this Court finds that Petitioner's Objections present no effective challenge to the Magistrate's findings. The most egregious of the prosecutor's statements, which could be seen as denigrating Petitioner for exercising his Sixth Amendment right to trial by jury, was, as Judge Bloom found, "an ambiguous remark" and "a minor aberration in a prolonged trial." (Report at 22-23.) The Court disagrees with Petitioner's contention that "the subject statement by the prosecution presupposed to the jury that the defendant was guilty, and that there was no need for them to even bother to review the evidence." (Objections at 21.) There is no indication in the record that the jury took their role any less seriously or that the trial was treated as "an unnecessary formality." (Id.) Nor does the Court accept Petitioner's argument that the prosecutor's summation, by appealing to the emotion and sympathy of the jury, somehow misrepresented the law or "deliberately twisted" the evidence. (See Objections at 23-24.) Furthermore, any alleged error was harmless, as Petitioner has not shown that he was denied a fair trial. "[I]t can fairly be said that [his] conviction[] [was] the result of the jury's assessment of the evidence, not the result of improper argument by the prosecutor." United States v. Nersesian, 824 F.2d 1294, 1328 (2d Cir. 1987). Accordingly, the Court adopts Judge Bloom's recommendations regarding this claim. IV. Potential Juror Bias

  Finally, Petitioner challenges Judge Bloom's finding that Petitioner's allegation of juror bias did not violate his Sixth Amendment right to a fair and impartial jury. It is clear from the record at trial that the trial judge assiduously investigated the claim of juror bias (Trial Transcript at 1357-64), heard argument from counsel (Trial Transcript at 1396-99), and made a reasoned ruling on the basis of this investigation that no bias existed. (Trial Transcript at 1399-1400). Further, Judge Bloom considered the doctrine of "implied bias" and found that the situation presented at Petitioner's trial was not an "exceptional situation." (Report at 26.) The Court declines to adopt Petitioner's speculations about what the juror may have been feeling at the time she was questioned, as that is irrelevant to the issue of whether the incident was an "exceptional ...

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