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Alexander v. Phillips


February 21, 2006


The opinion of the court was delivered by: Frank Maas, United States Magistrate Judge.


I. Introduction

Petitioner Paul Alexander ("Alexander") brings this habeas corpus proceeding, pursuant to 28 U.S.C. § 2254, to challenge his conviction on one count of Murder in the Second Degree (New York Penal Law § 125.25[1]) and one count of Attempted Murder in the Second Degree (Id. §§ 110, 125.25[1]) following a jury trial in Supreme Court, Bronx County. (See Pet. ¶¶ 1, 4, 6; Aff. of Ass't District Att'y Melissa R. DiPalo, dated Apr. 2, 2003 ("DiPalo Aff."), ¶ 4). On May 12, 1997, Justice John S. Moore, before whom the case was tried, sentenced Alexander on these charges, respectively, to consecutive indeterminate sentences of twenty-five years to life and eight and one-third to twenty-five years. (S. 16-17).*fn1 Alexander initially filed his petition pro se. (See Pet. at 7). Thereafter, on July 19, 2004, Laura M. Miranda, Esq., advised the Court that she had been retained by Alexander's family to represent him in connection with this proceeding. (See Docket No. 13). Ms. Miranda then filed supplemental papers on Alexander's behalf on November 9, 2004. (See Docket No. 15). In his petition, as supplemented, Alexander contends that (a) the photo array used to identify him was unduly suggestive and tainted a subsequent lineup identification, (b) his sentence was excessive and constituted an abuse of discretion, (c) the prosecutor failed to give him notice that his case was being presented to the grand jury, (d) portions of the prosecutor's summation at trial were improper, and (e) his trial counsel was ineffective for various reasons.

For the reasons that follow, Alexander's petition should be denied. Additionally, because Alexander has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.

II. Background

A. Wade Hearing

Alexander's conviction was secured after a prior trial in 1996 resulted in a mistrial. (See DiPalo Aff. Ex. 2 at 3 n.1; Docket No. 7).*fn2 Before that trial, Justice Robert L. Cohen conducted a Wade hearing on November 20, 1996.*fn3 (See Docket No. 5).

The sole witness at the hearing was Detective Ronald Pereira ("Pereira"), who testified that he was assigned to investigate the shooting death of Alexander's estranged wife, Jacqueline Alexander ("Jacqueline"), on December 27, 1992. (W. 3-4). On that date, he interviewed Vanessa Morris ("Morris") and Carl Graham ("Graham"), the only witnesses to the crime. (Id. at 4-5). Morris witnessed the incident, but did not indicate that she had seen the face of the person who shot Jacqueline. (Id. at 11). Graham, on the other hand, said he could identify the shooter. (Id.).

Because Pereira did not have a suitable photograph of Alexander at the outset of his investigation, he first was able to show Graham a six-picture photo array on January 21, 1993. (Id. at 6, 15). Pereira testified that Graham viewed the array in the squad room at the 43rd Precinct. (Id. at 5). At that time, Pereira explained to Graham that he was going to show him a photo array from which he should try to identify the photograph of the person who shot Jacqueline. (Id. at 6). While Pereira did not remember the details of Graham's identification, it was his usual procedure to have the person making the identification write the date, time and photo selected on the back of the original photo array. (Id. at 16-17). Only a copy of the photo array was available at the Wade hearing, however, because Pereira and his colleagues had been unable to locate the original despite diligent efforts.*fn4 (Id. at 6-7, 19-20).

At the time Graham was shown the photo array, Alexander's whereabouts were unknown. (Id. at 11). After an investigation which included the display of his picture on the television show "America's Most Wanted," Alexander eventually was apprehended. (Id.). Graham then identified Alexander again during a lineup identification on October 25, 1995, at the Bronx District Attorney's Office. (Id. at 9-10).

On cross-examination, Pereira testified that Graham had at first described the perpetrator to him as a "male black, approximately five-eight, 27 years old, [one] hundred and sixty-five pounds, light skin [and wearing] a black ski hat, a black ski mask that covered the mouth and nose, and a black leather jacket with black boots." (Id. at 14). Graham evidently did not provide Pereira with the name of the shooter at that time. (Id. at 21-22). Pereira testified, however, that a complaint report taken by another officer prior to the photo array contained a more detailed description in which Graham described the perpetrator as having "facial hair" and a "mustache and beard or goatee," and identified him by name. (Id. at 22-23).

At the conclusion of the hearing, Alexander's attorney, Edward Dudley, Esq., conceded that lineups at the District Attorney's Office usually are "much fairer" than those conducted at the precinct. (Id. at 33). He nevertheless urged the court to direct that Graham be produced to be questioned regarding the photo array, and what, if anything, he had written on the back. (Id. at 34). As Mr. Dudley explained, he was concerned that "something" might have "happened before [the lineup] that could have added [to] or influenced the witness at the lineup." (Id. at 33). He noted that this was a particular concern because the police had lost "the most critical piece of evidence in the case" before the defense had an opportunity to inspect it. (Id.).

Justice Cohen denied the request that Graham be produced for questioning, finding that there was no evidence of suggestiveness in the lineup identification procedures. (Id. at 40). Additionally, the Justice found that any suggestiveness in the photo array was, as a matter of law, sufficiently attenuated by the untainted lineup more than two years later. (Id.). For these reasons, Alexander's motion to suppress Graham's identification was denied. (Id. at 40-41).

B. Trial

1. People's Case

The People's proof at trial would have permitted a reasonable juror to find as follows:

Jacqueline and Paul Alexander were married and lived together for approximately seven or eight years before they separated in 1990. (T. 204). After they separated, Jacqueline went to live in a women's shelter with their two children. (Id. at 204-05). Between the time of their separation and the morning of December 27, 1992, Jacqueline had filed for both a divorce and an order of protection against Alexander. (Id. at 205). Jacqueline and the children eventually moved to an apartment at 1725 Bruckner Boulevard in the Bronx, where she resided until the date of her death. (Id. at 206).

On December 24, 1992, Alexander told his relative, Brian Giddings, that he thought Jacqueline was "cheating" on him. (Id. at 84-85). Two days later, on December 26, 1992, Alexander went to Jacqueline's apartment to visit his children. (Id. at 207). At around 6:00 or 6:30 p.m., Graham, who was a friend of Jacqueline's, arrived at the apartment. (Id. at 232-34). After Jacqueline told Graham that Alexander was in the bedroom, Graham left, stating that he "felt uncomfortable." (Id. at 234-35). Around 8:30 or 9:00 p.m., several other people, including Morris, who was Jacqueline's cousin, entered Jacqueline's apartment while Alexander was still there. (Id. at 206-07). Later that same evening, after Alexander had left, Graham returned to the apartment. (See id. at 210, 235). The only other people in the apartment at that time were Jacqueline, Morris, and the children. (Id. at 235). Although the adults had planned to go to a party that night, everyone remained in the apartment. (Id. at 211). Graham slept in the bedroom with Jacqueline, while Morris slept on the couch in the living room. (Id. at 221-22, 269).

Between 5:00 and 6:15 a.m. on the morning of December 27th, Morris, Graham and Jacqueline had a conversation on the living room couch, before Jacqueline proceeded to walk Graham to the door. (Id. at 211-12, 236). After Graham unlocked the door, a man later identified by Graham as Alexander pushed open the door. (Id. at 236). Alexander was wearing a black ski hat, a black ski mask covering his mouth and nose, a black leather jacket, and black boots. (Id. at 140, 238). Despite this garb, Alexander's forehead and some of his facial hair were visible. (Id. at 238). Alexander put a gun to Graham's head and pulled the trigger, but the gun did not discharge. (Id. at 236).

Jacqueline then said "Paul, no. Paul, no. Whatever you're going to do, do it to me." (Id. at 212; see also id. at 236). In response, Alexander pressed the gun tightly to Jacqueline's forehead and pulled the trigger, fatally wounding her. (Id. at 73-74, 239). After the gunshot, Morris ran into the children's bedroom, where she remained until the incident was over. (Id. at 212).

During a subsequent struggle for the gun, Graham threw Alexander into the hallway and ran down the stairs. (Id. at 239). As Graham was heading toward the stairs, he looked back at Alexander, whose mask had come off, and was able to see his face for about fifteen or twenty seconds. (Id. at 241-42, 247-48). Graham then ran to the police station, where he remained for the rest of the day. (Id. at 237).

In his initial interview, Graham did not tell the police that he had seen the shooter's face because he was scared that he would be "further involved in the situation." (Id. at 242-43). Nevertheless, Graham described the shooter as being approximately five feet eight inches tall, one hundred and sixty-five pounds in weight, light-skinned, and twenty-seven years old. (Id. at 140, 315). A few weeks later, Graham had a change of heart and admitted to the police that he had seen the shooter's face. (Id. at 118-19, 146-47, 302-03). Graham later identified Alexander as the shooter from the photo array on January 21, 1993, during the lineup in October 1995, and in open court. (Id. at 119-20, 245, 248).

2. Defense Case

The only evidence adduced by Alexander as part of the defense case consisted of a question and answer from the testimony at Alexander's first trial. During that testimony, Graham claimed, contrary to his testimony at the second trial, that his failure to tell the police during his first interview that the shooter's mask had come off was inadvertent. (Id. at 327-28).

3. Conviction and Sentencing

On April 22, 1997, after approximately one day of deliberations, the jury found Alexander guilty of both charges. (See id. at 450, 460, 482). At the sentencing, which took place on May 12, 1997, Dudley noted that his client still denied his guilt, but argued that if he did commit the crime, it was a "crime of passion," for which his sentences should run concurrently. (S. 12). Justice Moore rejected this assertion, observing that Alexander had engaged in an "ongoing, escalating level of violence directed toward the deceased," rather than "an isolated incident that occurred under the stress of emotion." (Id. at 15). He therefore sentenced Alexander to consecutive prison sentences of twenty-five years to life on the murder charge and eight and one-third to twenty-five years on the attempted murder charge. (Id. at 16-17).

C. Procedural History

1. Direct Appeal

In September 1999, the Legal Aid Society filed an appellate brief on behalf of Alexander, in which it claimed that (a) the prosecution did not prove its case beyond a reasonable doubt; (b) the trial court erroneously failed to suppress the lineup identification, which was the result of an unduly suggestive photo array identification; and (c) Alexander's sentences were unduly harsh and should be reduced to run concurrently. (Ex. 1 at 1-2). On March 21, 2000, the Appellate Division rejected those claims and unanimously affirmed the judgment of conviction. People v. Alexander, 706 N.Y.S.2d 311 (1st Dep't 2000). The court held that Alexander's claim that the photo array was unduly suggestive because Alexander appeared to be the only light-skinned man was not preserved for appellate review because it was not raised during the Wade hearing. (Id.). The court also noted that if it were to reach the merits of that unexhausted claim, it would find that the two-year gap between the photo identification and the lineup was "sufficient to attenuate any possible suggestiveness." Id. Finally, the court found that the verdict was based on legally sufficient evidence and was not against the weight of the evidence, and that the trial court did not abuse its sentencing discretion. Id.

By letter dated March 24, 2000, Alexander's counsel sought leave to appeal to the New York Court of Appeals on the basis of all three issues raised before the Appellate Division. (Ex. 4). That application was denied on April 25, 2000. People v. Alexander, 94 N.Y.2d 945 (2000).

2. Motion to Vacate

On April 27, 2001, Alexander filed a pro se motion to vacate his judgment of conviction pursuant to Section 440.10 of the New York Criminal Procedure Law ("CPL"). (Ex. 6). Alexander raised three grounds for relief: (a) the prosecutor's failure to give him notice that his case was being presented to the grand jury; (b) the prosecutor's false inflammatory statements in summation; and (c) ineffective assistance of counsel. (Id. at 8-9). With respect to the last of these claims, Alexander complained that his trial counsel had (a) failed to move for dismissal of the indictment despite the prosecutor's failure to give Alexander notice that his case was being presented to the grand jury; (b) failed to move to reduce the murder charge to Manslaughter in the Second Degree although the grand jury evidence showed that the shooting was inadvertent; (c) waived Alexander's right to testify before the grand jury as a result of his alleged failure to conduct an adequate interview of Alexander; (d) failed to move for dismissal of the attempted murder charge or its reduction to Menacing in the Second Degree or Reckless Endangerment in the First Degree because the evidence did not corroborate the complainant's allegation that the gun had jammed; (e) with respect to the photo array, failed to (i) object to it as unduly suggestive on the ground that Alexander's photograph was the only one of a light-skinned man, (ii) object to the use of a photocopy, (iii) request reconstruction of the original, or (iv) request further particulars regarding the fillers and the complaint report containing Graham's description of the perpetrator; and (f) improperly stipulated that Jacqueline (i) had an order of protection against Alexander, (ii) lived in a women's shelter, and (iii) had filed for divorce. (Id. at 8-9).

By order dated April 5, 2002, Justice Moore denied Alexander's motion to vacate the judgment. (Ex. 8). The Justice held that Alexander was not entitled to notice of the presentment of his case to the grand jury under Section 190.50 of the CPL and that even if a violation of that statute had occurred, Alexander waived his claim by failing to file a timely motion to dismiss the indictment. (Id. at 11). The Justice also held that a violation of Section 190.50 does not give rise to a constitutional claim. (Id.). The Justice also noted that Alexander's criticisms of the prosecutor's summation remarks were "inappropriate," "belied by the record," and precluded from review because of his failure to raise them on direct appeal. (Id. at 12-13).

Finally, the Justice found that Alexander was not denied the effective assistance of trial counsel. (Id. at 15). The court noted that Alexander's trial counsel made the appropriate pretrial motions by seeking to inspect the grand jury minutes, dismiss the indictment, suppress the pretrial and in-court identifications, and compel the production of all exculpatory materials and relevant police reports and notes. (Id.). Moreover, the court found that at both trials counsel made effective opening statements and appropriate motions and applications, vigorously cross-examined the prosecution's witnesses, raised appropriate objections, and gave effective closing statements. (Id. at 16). The court also noted that it had inspected the grand jury minutes and determined that the evidence was sufficient to support the charges in the indictments; consequently, counsel's failure to move for their reduction did not constitute ineffective assistance of counsel. (Id.).

On May 24, 2002, Alexander filed an application pursuant to Section 460.15 of the CPL seeking leave to appeal to the Appellate Division from the denial of his motion to vacate the judgment of conviction. (Ex. 9). The Appellate Division denied that application on July 18, 2002. (Ex. 11).

3. This Proceeding

Alexander's habeas petition is dated September 11, 2002, and was received by the Pro Se Office of this Court on September 16, 2002. (See Docket No. 1 at 1, 7). In his petition, Alexander raises as grounds for relief the trial court's failure to suppress a suggestive identification, "abusive sentencing," the lack of notice that his case was being presented to the grand jury, improper statements by the prosecutor during summation, and ineffective assistance of trial counsel. (Pet. ¶¶ 12(A)-(E)). The bases for Alexander's ineffective assistance of counsel claim are the same as those asserted in his prior motion to vacate the judgment of conviction.

On August 11, 2004, Your Honor granted Ms. Miranda's request that the Court reserve decision on Alexander's petition until November 1, 2004, so that she could submit supplemental materials on his behalf. (See Docket No. 13). Thereafter, I extended that deadline until November 8, 2004. (Docket No. 14)

On November 9, 2004, Ms. Miranda filed an affidavit and memorandum of law in further support of Alexander's petition. (See Docket No. 15). The memorandum addressed all of the issues previously raised pro se by Alexander other than his lack of notice of the grand jury proceedings and the alleged prosecutorial misconduct in summation. (See id.). Counsel has also asserted that Alexander's trial attorney was ineffective because he failed to provide the sentencing court with background information about Alexander at the time of sentencing. (Id. (Pet'r's Mem. at 9)).

III. Discussion

A. Limitations Period

Under 28 U.S.C. § 2244(d)(1), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996), an inmate generally must file a federal habeas corpus petition within one year after the date that his conviction becomes final or the facts giving rise to his claim could have been discovered. 28 U.S.C. § 2244(d)(1).*fn5 In Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001), the Second Circuit held that the one-year AEDPA limitations period does not begin to run until certiorari proceedings have been completed "or -- if the prisoner elects not to file a petition for certiorari -- the time to seek direct review via certiorari has expired." Thus, the one-year limitations period for a prisoner who did not seek certiorari in the Supreme Court begins to run ninety days after direct review by the state courts is completed. See S. Ct. R. 13(1).

This one-year limitations period is also subject to the following tolling provision:

The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d)(2).

The Respondent incorrectly contends that Alexander's conviction became final on April 25, 2000, when the Court of Appeals denied his application for leave to appeal. (See Resp't's Mem. at 4). In fact, because Alexander did not seek a writ of certiorari from the United States Supreme Court, his conviction first became final ninety days later, on July 24, 2000. See Williams, 237 F.3d at 150-51. Under Section 2244(d)(1), Alexander then had one year, or until July 24, 2001, to file his petition. This period, however, was tolled by the filing of his Section 440.10 motion on April 27, 2001.

At that time, Alexander still had 88 days left in which to file his habeas petition.*fn6 The running of the statute of limitations thereafter was tolled, pursuant to 28 U.S.C. § 2244(d)(2), until July 18, 2002, when the Appellate Division denied Alexander's application for leave to appeal from the denial of his Section 440.10 motion. (Exs. 8, 11). At that point, Alexander had 88 days, i.e., until October 14, 2001, to file a timely petition, a deadline that he met by submitting his petition to the Pro Se Office of the Court by September 16, 2002. (Docket No. 1).

B. Exhaustion

Even if a petition is timely, a court may not grant a writ of habeas corpus unless it appears that the petitioner has exhausted all available state court remedies, or there is an absence of state corrective process, or circumstances render that process ineffective to protect the petitioner's rights. See 28 U.S.C. §§ 2254(b)(1)(A), (B). As a defendant charged with crimes in New York State, Alexander unquestionably had an effective process available to him through the existing state statutes governing appeals in criminal cases. See N.Y. Crim. Proc. Law § 450.10 (McKinney 1994). Therefore, to satisfy the exhaustion requirement with respect to a particular federal claim, Alexander must show that he presented the substance of "the same federal constitutional claim[] that he now urges upon the federal courts to the highest court in the . . . state." Aparicio v. Artuz, 269 F.3d 78, 89-90 (2d Cir. 2001) (internal citations and quotation marks omitted).

"A federal constitutional claim has not been fairly presented to the [s]tate courts unless the petitioner has informed those courts of 'all of the essential factual allegations' and 'essentially the same legal doctrine he asserts in his federal petition.'" Strogov v. Att'y Gen. of N.Y., 191 F.3d 188, 191 (2d Cir. 1999) (quoting Daye v. Att'y Gen. of N.Y., 696 F.2d 186, 191-92 (2d Cir. 1982)). To meet this requirement, it is not necessary that the federal constitutional claim be presented to the state courts in haec verba. Indeed, there are a number of ways in which the claim may be presented, including:

[1] reliance on pertinent federal cases employing constitutional analysis, [2] reliance on state cases employing constitutional analysis in like fact situations, [3] assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and [4] allegation of a pattern of facts that is well within the mainstream of constitutional litigation.

Daye, 696 F.2d at 194.

The Respondent contends that Alexander's sentencing claim is barred from federal review because Alexander failed to present it as a federal claim. (See Resp't's Mem. at 12-15). In his direct appeal, Alexander argued that his sentences should have been modified in the interests of justice to run concurrently, but he relied exclusively on state law cases which made no reference to the United States Constitution. (See Ex. 1 at 22-23). Moreover, there was nothing in his brief to suggest that he was seeking to invoke a federal constitutional right. (Id.). Accordingly, because Alexander failed to assert a federal constitutional violation in state court, his abusive sentencing claim is not properly exhausted. See Daye, 696 F.2d at 194.

C. Procedural Default

Even when a petitioner presents a colorable constitutional claim, a federal court is precluded from reviewing a claim raised in a petition for a writ of habeas corpus if the judgment of the last state court to hear that claim was based on a procedural default, unless the petitioner can demonstrate either "cause for the default and actual prejudice as a result of the alleged violation of federal law, or . . . that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996); accord Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000).

A procedural default in state court will bar federal habeas review only if "the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989) (internal quotations omitted); accord Fama, 235 F.3d at 809. When the state court makes such an unambiguous statement, the petitioner is barred from seeking habeas relief even though the state court has ruled in the alternative on the merits of his federal claim. Glenn, 98 F.3d at 724 (quoting Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990)). In determining whether a claim may be heard, courts "apply a presumption against finding a state procedural bar and 'ask not what we think the state court actually might have intended but whether the state court plainly stated its intention.'" Galarza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001) (quoting Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000)). However, when the last court to issue a reasoned decision relies on a state procedural bar, the court will presume that subsequent decisions rejecting the claim without discussion relied on the bar and did not silently consider the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991).

In this case, the Appellate Division stated that its judgment denying Alexander's appeal was based, in part, on his counsel's failure to preserve his claim that the photo array was suggestive because Alexander was the only light-skinned man. Alexander, 706 N.Y.S.2d at 311. The court also explicitly stated that it declined to review this claim in the interest of justice, but that even if it were to review the claim, it would not find the photo array unduly suggestive. Id.

Similarly, in his decision on Alexander's Section 440.10 motion, Justice Moore concluded that Alexander's claim that he was entitled to notice that his case was being presented to the grand jury was meritless, but also held that it was procedurally barred because Alexander had failed to move for the dismissal of the indictment on that ground. (Ex. 8 at 11-12). The Justice also found that Alexander's failure to raise the issue of the prosecutor's summation as part of his direct appeal precluded the court from addressing it on collateral review. (Id. at 13).

The state court's express reliance on such procedural failures constitutes an adequate and independent state ground for the denial of those claims. See Harris, 489 U.S. at 265 n.12; Glenn, 98 F.3d at 724-25; Harris v. Artuz, No. 99 Civ. 11229 (DLC), 2001 WL 435636, at *5 (S.D.N.Y. Apr. 30, 2001). Accordingly, this Court cannot consider these three claims unless Alexander can show both cause for the default and actual prejudice or that the failure to consider his claim will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750.

To demonstrate cause, a petitioner must adduce "some objective factor external to the defense" which explains why he did not raise the claim previously. Murray v. Carrier, 477 U.S. 478, 488 (1986); Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991) (quoting Murray). The circumstances which may constitute cause include:

(1) interference by government officials making compliance impracticable; (2) situations in which the factual or legal basis for a claim was not reasonably available to counsel; and

(3) ineffective assistance of counsel. See Murray, 477 U.S. at 488; Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (quoting Murray). A showing of prejudice requires a petitioner to demonstrate that the failure to raise the claim previously had a substantial injurious effect on his case such that he was denied fundamental fairness. Reyes v. New York, No. 99 Civ. 3268 (SAS), 1999 WL 1059961, at *2 (S.D.N.Y. Nov. 22, 1999). Finally to establish a fundamental miscarriage of justice, a petitioner must demonstrate that he is "actually innocent." Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001).

Alexander has not made any of the showings necessary to overcome his procedural default. Although Alexander attributes several of his procedural defaults to the ineffectiveness of his trial counsel, he cannot show prejudice because, as discussed below, his claims are without merit. Furthermore, although Alexander's counsel alleges that a failure to consider Alexander's claims on the merits would itself constitute a fundamental miscarriage of justice, she has made no effort to demonstrate that he is actually innocent. (See Pet'r's Mem. at 9, 12 n.2).

D. Merits

Although a federal court obviously need only address claims which are exhausted and not procedurally barred, it is understandable that an inmate serving a sentence as long as the one imposed on Alexander would want the merits of his claims to be reached. Moreover, there is always the possibility (however remote) that another court could reach a different conclusion concerning the threshold issues of exhaustion and procedural forfeiture. For these reasons, I have considered the merits of all of Alexander's claims. As shown below, none warrant habeas relief.

1. Standard of Review

A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401 (1993). Rather, a state prisoner seeking habeas relief under Section 2254 must show that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petitioner bears the burden of proving, by a preponderance of the evidence, that his rights have been violated. Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).

Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides, in part, that:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim --(1) resulted in 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) (emphasis added).

As the Second Circuit noted in Jones, the Supreme Court has "construed the amended statute so as to give independent meaning to 'contrary [to]' and 'unreasonable.'" Jones, 229 F.3d at 119. "Under the 'contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the "unreasonable application" clause, a federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. This standard does not require that reasonable jurists would all agree that the state court was wrong. Id. at 409-10. Rather, the standard "falls somewhere between 'merely erroneous and unreasonable to all reasonable jurists.'" Jones, 229 F.3d. at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d Cir. 2000)).

Section 2254(d)(2) also authorizes the federal courts to grant a habeas writ when a claim considered on the merits in state court "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

Finally, to the extent that a habeas petition challenges factual findings, Section 2254(e)(1) provides that "a determination of a factual issue by a State court shall be presumed to be correct" and "[t]he [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."

"If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Williams v. Taylor, 529 U.S. at 389.

2. Suggestive Identification

Alexander first claims that the photo array shown to Graham on January 21, 1993, at the 43rd Precinct was suggestive because it appears from a photocopy that he was the only light-skinned person in the array. (Pet. ¶ 12(A)). To prevail on that claim, Alexander must establish that the pretrial identification procedures were so suggestive that they created "a very substantial likelihood of irreparable misidentification." United States v. Mohammed, 27 F.3d 815, 821 (2d Cir. 1994) (quoting Simmons v. United States, 390 U.S. 377, 384 (1968)). However, the focus of the inquiry is on the possibility of misidentification, rather than police conduct, because a suggestive procedure "does not in itself intrude upon a constitutionally protected interest." Wray v. Johnson, 202 F.3d 515, 524 (2d Cir. 2000) (quoting Manson v. Brathwaite, 432 U.S. 98, 113 n.13 (1977)). Thus, "even a suggestive out-of-court identification will be admissible if, when viewed in the totality of the circumstances, it possesses sufficient indicia of reliability." Mohammed, 27 F.3d at 821 (quoting United States v. Simmons, 923 F.2d 934, 950 (2d Cir. 1991)); see also Brathwaite, 432 U.S. at 114 ("reliability is the linchpin in determining the admissibility of identification testimony").

When the police employ a suggestive identification procedure, the factors that should be considered to determine the likelihood of a misidentification include "[(a)] the opportunity of the witness to view the criminal at the time of the crime, [(b)] the witness' degree of attention, [(c)] the accuracy of the witness' prior description of the criminal, [(d)] the level of certainty demonstrated by the witness at the confrontation, and [(e)] the length of time between the crime and the confrontation." Neil v. Biggers, 409 U.S. 188, 199-200 (1972). "A good or poor rating with respect to any one of these factors will generally not be dispositive . . . . In each case, the factors must be assessed in light of the totality of the circumstances." United States v. Concepcion, 983 F.2d 369, 377-78 (2d Cir. 1992).

Here, Graham had an opportunity to view Alexander's partially obscured face while they were in the apartment. He had a further opportunity to view Alexander's face after his mask came off in the hall. Graham also gave two accurate descriptions of Alexander before he was shown the photo array. Additionally, the photo identification took place less than one month after the shooting, and there is no indication that Graham ever expressed any uncertainty concerning the accuracy of his identification. Given these circumstances, there is no reason to question Justice Moore's decision finding the identification to be reliable.

Nor is there any reason to believe that the identification procedures were unduly suggestive. In determining the suggestiveness of a photo array, the relevant question is "whether the picture of the accused, matching descriptions given by the witness, so stood out from all of the other photographs as to 'suggest to an identifying witness that that person was more likely to be the culprit.'" Jarrett v. Headly, 802 F.2d 34, 41 (2d Cir. 1986) (quoting United States v. Archibald, 734 F.2d 938, 940 (2d Cir. 1984)). Here, the original photographic array has been missing since before the Wade hearing, and the Court unfortunately is left with a third-generation copy which presumably does not even come close to reflecting the actual photo array. (See Pet'r's Section 440 Mot. Ex. G (photocopy of array)).*fn7 While it is true that the photocopy appears to show that Alexander is the only light-skinned man in the array, it is impossible to tell whether this was a characteristic of the original array, or if it is simply the result of repeated photocopying. As such, this Court does not have any basis upon which it could conclude that the state courts' finding that the photo array was not unduly suggestive is clearly erroneous.*fn8

Alexander consequently is not entitled to habeas relief on this ground. In any event, even if the photo array had been shown to be unduly suggestive, it is undisputed that a lineup identification took place two years later. Moreover, Justice Moore found that the lineup was "untainted." (W. 40). In these circumstances, Alexander cannot show, as he must, that the photo array created a substantial likelihood of irreparable misidentification, which rendered the state court decisions unreasonable.

3. Excessive Sentence

Alexander also claims that the sentence imposed on him by Justice Moore is excessive and violated his Eighth Amendment rights. (Pet. ¶ 12(B); Pet'r's Mem. at 11). He argues that the imposition of consecutive maximum sentences was an abuse of the trial court's sentencing discretion since he had no prior felony record and the crimes were "isolated acts of violence committed under extreme emotional pressure." (Pet. ¶ 12(B)). Alexander further argues that the trial court's sentencing decision was improperly based on information outside the record -- namely that Alexander's obsessive behavior had escalated over time, eventually leading to Jacqueline's death. (Pet'r's Mem. at 11).

As noted previously, this claim is unexhausted because it was not presented to the state courts in constitutional terms. Even if the claim were properly before this Court, however, it would have to be denied on the merits. Alexander was convicted of Murder in the Second Degree, a Class A-1 felony, for which the maximum sentence is twenty-five years to life, and Attempted Murder in the Second Degree, a Class B felony, for which the maximum sentence is eight and one-third to twenty-five years. New York Penal Law §§ 70.00(2), (3), 110, 125.25 (McKinney 2004). Since Alexander's sentences were within these ranges, his claim does not present a federal constitutional issue cognizable on habeas review. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (citing Underwood v. Kelly, 692 F. Supp. 146 (E.D.N.Y. 1988), aff'd mem., 875 F.2d 857 (2d Cir. 1989)); Robles v. Senkowski, No. 97 Civ. 2798 (MGC), 2002 WL 441153, at *10 (S.D.N.Y. Mar. 21, 2002) (citing White).

Alexander also argues that the trial court abused its sentencing discretion by relying on information "tha[t] does not appear on the record." (Pet'r's Mem. at 12). Alexander bases this contention on Justice Moore's statement at the sentencing that Alexander's acts appeared to be part of an "ongoing, escalating level of violence directed toward the deceased." (S. 15). Alexander contends the court had no basis for this conclusion other than the existence of the order of protection that Jacqueline had obtained. (Pet'r's Mem. at 11).

In order to successfully challenge his sentence on this ground, Alexander would have to show that the sentencing court's decision amounted to an arbitrary and capricious abuse of discretion or that there was an error in the law which resulted in the court's improper exercise of its discretion. Odom v. Duncan, No. 99 Civ. 9088 (MBM), 2005 WL 3288140, at *1 (S.D.N.Y. Dec. 2, 2005). Here, the order of protection plainly is not the only basis for Justice Moore's belief. Indeed, he specifically referenced the presentence report prepared by the Probation Department. (S. 14). In that report, the Probation Department noted that Alexander was a repeat offender, with a prior weapons possession conviction, who "enjoys the power of possessing a gun and has no regard for the criminal justice system [de]spite prior intervention." (See Affirm. of Ass't District Att'y Adam Laurence Goldman, dated Sept. 25, 2001, Ex. 7 at 2 (Presentence Report)). The report also contained a statement from Jacqueline's family which made clear that Alexander was terrorizing her and her family every day until "that blessed day in the summer of 1995 when [he] was taken into custody" on a federal firearms charge. (Id. at 3 (Victim Impact Statement)). Finally, as Alexander concedes, the court was well aware of the order of protection. In light of these facts and the cold-blooded nature of Jacqueline's death, the Appellate Division's conclusion that there was no abuse of sentencing discretion in this case plainly is justified.

4. Notice of Grand Jury Proceeding

Next, Alexander claims that he was deprived of his constitutional right to due process because of the prosecution's failure to give him advance notice, pursuant to CPL Section 190.50, that his case was being presented to the grand jury. (Pet. ¶ 12(C)). Although Alexander does not explicitly say so, it appears that the crux of this claim is not only that he lacked notice of the grand jury proceedings, but that he consequently was denied the right to testify at those proceedings.

As discussed in greater detail below (see Section III.D.6), there is no factual or legal basis for Alexander's contention that he was entitled to notice of the grand jury presentment. However, even if Alexander were able to establish a violation of the state laws applicable to grand jury proceedings, he still would not be entitled to the issuance of a writ because any conceivable due process violation would be harmless error in light of his conviction by a petit jury which necessarily applied a higher standard of proof. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989); Riley v. New York, No. 01 Civ. 8051 (DLC)(RLE), 2004 WL 1089121, at *4, (S.D.N.Y. May 12, 2004) (citing Lopez).

Thus, even if the prosecutor's failure to give Alexander notice that his case was being presented to the grand jury constituted a violation of state law, it would not give rise to a claim cognizable on habeas review. Moreover, any conceivable error was rendered harmless by the petit jury's verdict that Alexander was guilty of both crimes charged.

5. Prosecutorial Misconduct

Alexander next contends that certain of the prosecutor's summation comments were so improper as to deny him a fair trial. (Pet. ¶ 12(D)). Specifically, Alexander argues that the prosecutor improperly "vouched" for the credibility of his witnesses by saying that they had no motive to lie, "misquoted" the medical examiner by saying that Alexander intended to kill his victim, and "insinuated" that Alexander had been hunting for Graham. (Id.).

When a claim of prosecutorial misconduct during summation is raised on habeas review, "[t]he relevant question is whether the prosecutors' comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). The issue is not whether the prosecutor's comments were "undesirable or even universally condemned" but the narrow issue of due process. Id. Moreover, a mere showing of prosecutorial misconduct does not entitle a petitioner to habeas relief. There must, instead, be a showing that "he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994). To determine prejudice, the following factors must be considered: "(1) the severity of the prosecutor's conduct; (2) what steps, if any, the trial court may have taken to remedy any prejudice; and (3) whether the conviction was certain absent the prejudicial conduct." Id. (citing Gonzalez, 934 F.2d at 424).

Here, extended analysis is not necessary since the prosecutor's comments were not improper. First, there is absolutely nothing in the prosecutor's summation which suggests that Alexander was hunting for Graham. Second, when the prosecutor stated that "[the medical examiner] tells you that the person who did do the shooting intended to kill her," he was not misstating the evidence. (T. 378-79). Although the medical examiner did not expressly say that Alexander intended to kill Jacqueline, he testified that the gun had been pressed against her head when it was discharged. (Id. at 73-74). It is not improper for a prosecutor to argue an inference from the evidence that is in the record. See United States v. Gerry, 515 F.2d 130, 144 (2d Cir. 1975) (internal citation and quotation marks omitted). Moreover, in his instructions to the jury, Justice Moore stated as follows:

Now, during the course of their summations the assistant district attorney and defense counsel respectively have commented on the evidence and have suggested to you certain inferences and conclusions that you might reasonably an[d] logically draw from the evidence. The summations of counsel are, of course, not evidence; however if the arguments of counsel strike you as reasonable and logical and supported by the evidence, you may, if you so conclude, adopt them. On the other hand, if you find such arguments to be unreasonable or illogical or unsupported by the evidence, you may reject them. In the last analysis it is the function of the jury to draw their own inferences or conclusions from the evidence as you recollect that evidence and as you find such evidence credible and believable.

(T. 398-99). The jury must be presumed to have followed this instruction. See Weeks v. Angelone, 528 U.S. 225, 234 (2000) (internal citation omitted).

Finally, Alexander claims that when the prosecutor stated that "Carl Graham has absolutely no motive to lie to you," and "Detective Pereira has no motive to lie to you," (T. at 382), he was improperly vouching for those witnesses. These comments were not unfairly prejudicial, however, because the prosecutor was merely responding to defense counsel's attacks on those witnesses' credibility. It is settled law that "[n]o prejudice exists where a prosecutor appropriately responds to defense counsel's arguments." Urena v. Lape, 373 F. Supp. 2d 449, 456 (S.D.N.Y. 2005) (citing United States v. Young, 470 U.S. 1, 12-13 (1985)); see also United States v. Perez, 144 F.3d 204, 210 (2d Cir. 1998) ("Prosecutors have greater leeway in commenting on the credibility of their witness when the defense has attacked that credibility.").

In sum, Alexander's claim of prejudicial prosecutorial misconduct in summation is without merit.

6. Ineffective Assistance of Trial Counsel

In order to prevail on an ineffective assistance of counsel claim, Alexander must demonstrate that (a) his counsel's performance "fell below an objective standard of reasonableness" and (b) there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Under Strickland, there is a "strong presumption that [a lawyer's] conduct falls within the wide range of reasonable professional assistance." Id. at 689. Therefore, a petitioner "must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).

A court considering an ineffectiveness claim need not "address both components of the [Strickland] inquiry if the [petitioner] makes an insufficient showing on one." Id. at 697. As the Second Circuit has noted, "[t]he Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).

Under the AEDPA, Alexander "must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly." Bell v. Cone, 535 U.S. 685, 698-99 (2002) (citing Williams, 529 U.S. at 411). Rather, Alexander must show that the state courts "applied Strickland to the facts of his case in an objectively unreasonable manner." Id. at 699. Here, Alexander has not met that burden.

First, Alexander claims that his trial counsel was ineffective for failing to move for dismissal of the indictment after the prosecutor failed to give him notice that his case was being presented to the grand jury. (Pet. Attach. ¶ 5(A)). Alexander was actually indicted by two grand juries. First, on August 16, 1995, Alexander was charged with Murder in the Second Degree (among other crimes) under Indictment No. 5838-95. (Pet'r's Section 440 Mot. Ex. E). Second, on July 8, 1996, Alexander was charged with Attempted Murder in the Second Degree under Indictment No. 5113-96. (Id. Ex. L).

CPL Section 190.50(5)(a) governs the right of a person to appear before a grand jury which is considering or about to consider whether to return charges against that person. That statute expressly provides that the district attorney is "not obliged" to give notice to "such a person" unless he or she is "a defendant who has been arraigned in a local criminal court upon a currently undisposed of felony complaint charging an offense which is a subject of the prospective or pending grand jury proceeding." N.Y. Crim. Proc. Law § 190.50(5)(a) (McKinney 1993). Here, as Justice Moore explained at considerable length in his order denying Alexander's Section 440.10 motion, Alexander never was charged in a criminal complaint prior to his indictment on the charges in the 1995 indictment. (See Ex. 8 at 5-12). In fact, Alexander first came into the custody of law enforcement officials following the shooting when he was arrested and detained on unrelated federal charges. (See id. at 6-7). He did not come into state custody on any of the state charges leading to his conviction before Justice Moore until September 18, 1995, which was after the 1995 murder indictment was filed. (Id. at 7). Thus, as Justice Moore correctly concluded, "Alexander was not entitled to CPL [Section] 190.50 notice of the Grand Jury proceedings." (Id.).

Turning to the 1996 indictment, as part of his Section 440.10 motion, Alexander produced the transcript of a June 14, 1996, conference before Justice Cohen. (See Pet'r's Section 440 Mot. Ex. Y). During that conference, Mr. Dudley advised the court that he had had an opportunity to interview Alexander, who did "not want to testify if this matter is represented." (Id. at 2). Even if that statement was incorrect, as Alexander now alleges, any possible prejudice plainly was harmless since the trial jury convicted him on the sole charge in the 1996 indictment after hearing all of the evidence. See Lopez, 865 F.2d at 32.

Accordingly, because Alexander has failed to demonstrate prejudice, he cannot prevail on his claim that Mr. Dudley improperly waived his right to appear before the grand jury.

Alexander next claims that his trial counsel was ineffective for failing to move to reduce the Second Degree Murder charge to Manslaughter and the Attempted Murder charge to Menacing or Reckless Endangerment. (Pet. Attach. ¶¶ 5(B), (D)). In fact, however, Alexander's trial counsel moved on December 5, 1995, for an order granting inspection of the grand jury minutes and the dismissal of the charges contained in the murder indictment, arguing that the evidence before the grand jury was legally insufficient to establish the offenses charged or any lesser-included offenses and that the grand jury was not properly instructed on the law. (See Pet'r's Section 440 Mot. Ex. I). The court (Cohen, J.) granted the motion to inspect the minutes, but held that the evidence was legally sufficient to support the charges, and that the grand jury had been properly instructed. (Id. Ex. J). Thus, Alexander's attorney actually made the motion that he now claims should have been made with respect to the indictment charging him with Murder in the Second Degree.

The record does not indicate that Mr. Dudley made a similar motion with respect to the 1996 attempted murder indictment. However, even if Alexander were able to show that the motion was not made and that this was objectively unreasonable, he still could not satisfy the prejudice prong of Strickland, since he subsequently was convicted on the attempted murder charge by a petit jury. See United States v. Mechanik, 475 U.S. 66, 70 (1986) ("Measured by the petit jury's verdict . . . any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.").

Alexander also contends that his counsel was ineffective for failing to object to the introduction at trial of the photocopy of the photo array, failing to request reconstruction of the photographic array, and failing to request the "alleged second description of perpetrator given by eyewitness." (Pet. Attach. ¶ 5(E)). Unfortunately, it is not clear from Alexander's petition what the basis for the last of these alleged shortcomings is, nor does Alexander's counsel elaborate on it in her supplemental papers. In any event, it is apparent that any objection at trial to the introduction of the photocopy of the photo array or demand for reconstruction of the original would have been futile as the hearing court previously had found that it was not unduly suggestive. It follows that Alexander cannot show that his counsel's failure to object or make such a request was prejudicial or amounted to the ineffective assistance of counsel. See United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) ("[T]he failure to make a meritless argument does not rise to the level of ineffective assistance.").

Alexander next claims that his counsel was ineffective because he stipulated that Jacqueline had lived in a shelter after her separation, had filed for divorce, and had obtained an order of protection against Alexander which expired in June 1992. (Pet. Attach. ¶ 5(F)). He further objects to his counsel's stipulation that Alexander was twenty-eight years old and five feet six inches tall at the time of the shooting. (Id.).

The first of these assertions appears to be based on Alexander's incorrect belief that the trial court had determined that the order of protection was inadmissible. (See id.). In fact, the court concluded that the threats which led to the order of protection were inadmissible but that Morris could testify as to the existence of the order. (T. 87-88). The court also ruled that it would exclude certain evidence of Alexander's stalking of Jacqueline without conducting a hearing, provided that the defense consented to the introduction of information concerning the order of protection and Jacqueline's divorce. (Id. at 90-101). In light of these rulings, the stipulation regarding these matters plainly was advantageous to Alexander, and did not amount to ineffective assistance.

Additionally, counsel did not stipulate that Jacqueline had lived in a shelter. (Id. at 100). Rather, it was the court that decided to admit that evidence. (Id. at 101-02). Counsel did stipulate that Alexander was twenty-eight years old and five feet six inches tall at the time of the shooting. (Id. at 326). However, Alexander has not shown that this stipulation was inaccurate or that it unfairly prejudiced him. Absent some such showing, he is not entitled to habeas relief on this ground.

Alexander's last ineffective assistance of counsel claim -- raised for the first time in Ms. Miranda's supplemental papers -- is that trial counsel was ineffective for failing to present background information on Alexander to the sentencing court. (Pet'r's Mem. at 9). However, Alexander has not identified the additional information that allegedly would have been relevant to the sentencing decision, much less shown that it would have resulted in a shorter sentence. For that reason, even if this claim were properly exhausted, it would have to be rejected because Alexander has failed to demonstrate any prejudice.

In sum, there is no factual or legal basis for any of Alexander's ineffective assistance of trial counsel claims.

IV. Conclusion

For the foregoing reasons, Alexander's petition should be denied. Additionally, because Alexander has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.

V. Notice of Procedure for Filing of Objections to this Report and Recommendation

The parties shall have ten days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a) and (e). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Shira A. Scheindlin, United States District Judge, and to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, NY 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Scheindlin. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(e), 72(b).

FRANK MAAS United States Magistrate Judge

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