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July 21, 2004.

MYRON WARRICK, Petitioner,

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


In a timely filed petition, Myron Warrick ("Warrick") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He challenges his December 1999 conviction of the criminal sale and possession of a controlled substance following a jury trial.*fn1 The petition was referred to Magistrate Judge Kevin N. Fox for a Report and Recommendation ("Report"), which was issued on February 5, 2004. The Report recommends that the petition be denied. Warrick has filed objections to the Report. This Opinion addresses those objections and adopts the Report.


  The facts established at trial are set forth in the Report and summarized here. On September 2, 1998, undercover police officer Anthony Ortiz ("Ortiz") purchased heroin from Warrick in a transaction observed by a second officer. After completing the heroin purchase, Ortiz communicated a description of Warrick's race and clothing to other officers involved in the operation. Upon seeing an officer approach, Warrick began to run, stumbled, and was apprehended. Twenty-four glassine envelopes of heroin were found on the ground underneath Warrick's body. The envelopes bore the same "Mr. Fieldgood" legend as the packet of heroin purchased by Ortiz. Also recovered from Warrick was $10 of the pre-recorded buy money that Ortiz had used to purchase the heroin. Approximately five minutes after the sale and once Warrick was in police custody, Ortiz identified Warrick as the person who had sold him the heroin.

  Following Warrick's arrest, his attorney notified the prosecutor that Warrick wished to testify before the grand jury. Warrick failed to appear on his scheduled testimony date, and his lawyer informed the prosecutor that Warrick's prior notice to give testimony before the grand jury was being withdrawn. Warrick maintains that he did not authorize his lawyer to withdraw his notice to testify before the grand jury.

  After his indictment, Warrick was assigned new counsel ("second counsel"). Warrick's second counsel moved to dismiss the indictment on the grounds that Warrick had not been given the opportunity to testify before the grand jury, and that the indictment was time-barred. The trial court denied the motion, finding that Warrick had forfeited his right to testify when he failed to appear on the date scheduled for his testimony. The trial court also found that Warrick's right to a speedy trial had not been violated, since only 109 of 180 allowable days of delay were attributable to the prosecution.

  Warrick's second counsel next challenged the probable cause of Warrick's arrest, and moved to suppress Ortiz's identification of him and physical evidence seized from him. The trial court denied the motion.

  At trial, Ortiz and the arresting detective testified, as well as two NYPD chemists. Warwick testified that he was a Vietnam veteran and the heroin in his possession at the time of his arrest was for his personal use. He asserted that he had been given the $10 pre-recorded buy money as change by the drug dealer from whom he had purchased the twenty-four glassine envelopes of heroin.

  The jury returned a guilty verdict against Warrick for the criminal sale and possession of a controlled substance. After Warrick's conviction, but before his sentencing, the judge who had presided over Warrick's trial retired. A second judge sentenced Warrick to concurrent terms of five to ten years' imprisonment. The Report sets out Warrick's post-trial attacks on his conviction, which included a direct appeal and two Section 440.10 motions.


  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). In reviewing the Report, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1).

  As the Report observes, not all of Warrick's claims have been exhausted. Because an unexhausted claim may be dismissed if it lacks merit, the Report appropriately reached the merits of Warrick's claims. See 28 U.S.C. § 2254(b)(2).

  Habeas petitions are subject to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132. With respect to any claim that was adjudicated on the merits in state court, the petition must be denied 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). See Williams v. Taylor, 529 U.S. 362, 412-413 (2000); Sevencan v. Herbert, 342 F.3d 69, 73-75 (2d Cir. 2002). The federal court must presume a determination of a factual issue made by a ...

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