United States District Court, S.D. New York
January 18, 2005.
JEROME CURRY, Petitioner,
JOHN BURGE, etc., Respondent.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
Petitioner was convicted in state court of, among other things,
second degree murder, second degree attempted murder, first and
second degree assault, and weapons possession and sentenced to
consecutive terms of 35 years and 25 years to life imprisonment.
The convictions were affirmed by the Appellate Division, and the
New York Court of Appeals denied leave to appeal. People v.
Curry, 287 A.D.2d 252, 252, 731 N.Y.S.2d 1, 2 (1st Dept.),
leave to appeal denied, 97 N.Y.2d 680, 739 N.Y.S.2d 295 (2001).
He now seeks a writ of habeas corpus.
In an extensive and thorough report and recommendation,
Magistrate Judge Peck recommended denial of the petition.
The Court adopts the report and recommendation and overrules
the objections. In view of the careful treatment of the case by
the Magistrate Judge, the Court adds only the following points:
1. Petitioner complains that Judge Peck could not properly have
evaluated his Sandoval argument because the transcripts of the
July 20, 1998 proceeding were lost. Judge Peck so acknowledged,
but noted that he relied upon the factual description from the
State's brief. Report and Recommendation 10 n. 4. At least in the
absence of any showing that the description in the State's brief
was incomplete, erroneous or misleading, this was appropriate.
See, e.g., Abreu v. Kuhlmann, No. 99 Civ. 9726 (RWS), 2000 WL
1773476, at *2 n. 2, 10 (S.D.N.Y. Dec. 4, 2000); Lile v.
McKune, 45 F. Supp.2d 1157, 1160 n. 1 (D. Kan. 1999), appeal
dismissed, 242 F.3d 389 (10th Cir. 2000); Rivera v. Abrams,
No. 89 Civ. 0935 (JFK), 1989 WL 82449, at *1 (S.D.N.Y. July 17,
1989), see also United States ex rel. Preston v. Mancusi,
422 F.2d 940, 942-43 (2d Cir. 1970).
2. Petitioner argues that Judge Peck's conclusion that his
Miranda rights were not violated "is an incorrect interpretation of the record." Obj.
¶ 2. This utterly overlooks the fact that Judge Peck in fact
concluded only that the state courts' resolution of the Miranda
argument could not be faulted given the very limited scope of
3. Petitioner argues that the trial court violated his rights
under the Confrontation Clause when a police officer was
permitted to testify to out of court statements of others, this
notwithstanding the trial court's limiting instruction to the
jury. He relies upon Crawford v. Washington, 124 S.Ct. 1354
(2004). Whatever the merits of the argument, however, the Second
Circuit has ruled that Crawford does not apply retroactively to
cases, like this one, on collateral review. Mungo v. Duncan,
___ F.3d ___, 2004 WL 29883001, at *6 (2d Cir. Dec. 28, 2004).
Accordingly, the petition is denied. A certificate of
appealability is denied, and the Court certifies that any appeal
herefrom would not be taken in good faith within the meaning of
28 U.S.C. § 1915(a)(3). The Clerk shall close the case.
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