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CURRY v. BURGE

United States District Court, S.D. New York


January 18, 2005.

JEROME CURRY, Petitioner,
v.
JOHN BURGE, etc., Respondent.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

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. Petitioner objects.

  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 AEDPA review.

  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.

  SO ORDERED.

20050118

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