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give testimony before the grand jury was being withdrawn.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
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
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
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 ...