The opinion of the court was delivered by: P. Kevin Castel, U.S.D.J.
REPORT AND RECOMMENDATION
Petitioner Chris Applewhite, after a jury trial in the Supreme Court of the State of New York, New York County, was convicted of one count of Assault in the First Degree under New York Penal Law ("NYPL") § 120.10(1), one count of Criminal Use of a Firearm in the First Degree under NYPL § 265.09, one count of Criminal Possession of a Weapon in the Second Degree under NYPL § 265.03, and one count of Criminal Possession of a Weapon in the Third Degree under NYPL § 265.02(3). Petitioner was acquitted of the charge of attempted murder. On July 7, 1999, Justice Charles Tejada sentenced petitioner to indeterminate terms of imprisonment, to run concurrently, on the four charges resulting in convictions as follows: seven to fourteen years on each of the assault and criminal use of a firearm counts; four to eight years on the second degree criminal possession of a weapon count and three and one-half to seven years on the third degree criminal possession of a weapon count. On October 29, 1999, petitioner's sentence on the third degree criminal possession count was reduced to two and one-third to seven years.
Petitioner appealed his conviction to the Appellate Division, First Department, and, by Order dated October 3, 2002, the Appellate Division unanimously affirmed the conviction. People v. Applewhite, 298 A.D.2d 136 (1st Dep't 2002). Petitioner sought leave to appeal the Appellate Division's Order to the New York Court of Appeals, and by Order dated March 27, 2003, leave was denied. 99 N.Y.2d 625 (2003). Petitioner then moved for reconsideration of the denial of leave to appeal, and, upon reconsideration, leave was again denied on May 30, 2003. 100 N.Y.2d 536 (2003).
On June 22, 2004, petitioner filed, pro se, a timely petition for a writ of habeas corpus under 28 U.S.C. § 2254, referencing his attached state appellate brief, and thus incorporating the five bases for relief contained therein. Specifically, petitioner contends that: 1) evidence introduced at trial was seized in violation of his Fourth Amendment rights and should properly have been suppressed; 2) his right to a fair trial was violated when a prosecution witness who had been unable either to pick petitioner out of a lineup or identify him in court referred to him as "the shooter" during his testimony; 3) the trial court's jury instructions were improper in that they included an instruction regarding inference of consciousness of guilt based on flight from the scene of the crime, when petitioner's identity as the fleeing shooter was in dispute issue; 4) the trial court improperly refused to instruct the jury on the unreliability of cross-racial identification testimony; and 5) petitioner's sentence was excessive and unduly harsh.
On February 9, 2005, I referred the petition to United States Magistrate Judge James C. Francis IV. On November 29, 2005, Judge Francis issued a Report and Recommendation ("R&R"). In his R&R, familiarity with which is assumed, after comprehensively setting forth the facts underlying petitioner's conviction, Judge Francis recommended that I deny the petition. In multiple installments, and with the benefit of several requested extensions, petitioner filed objections to Judge Francis's R&R. His objections and reply papers total approximately 175 handwritten pages, plus exhibits. In the course of his submissions, petitioner makes abundantly clear that he is dissatisfied with the conditions of his confinement in the New York State correctional facilities. He repeatedly expresses his opinion that all of those involved in his arrest and prosecution were engaged in a vast conspiracy to deprive petitioner of his rights. He refers to the police as "walking time-bombs in police uniforms" who view African-Americans as a "delectable choice of usual suspects to fulfill a chronic thirst of satisfying monthly arrest quotas," the prosecutor as the "malicious prosecutrix," and some of the state judges as "hypocrites . . . full of lip service." In his submissions, he compares and contrasts his situation, inter alia, to that of, Amadou Diallo,*fn1 Abner Louima,*fn2 and the "Long Island Lolita," Amy Fisher.*fn3 He writes on topics as diverse as the war in Iraq and the 1995 film "The Jerky Boys,"*fn4 attempting in each case to draw some relevant parallel to the circumstances underlying the instant petition. While the Court acknowledges petitioner's dedication to his task, much of the rhetorical content of petitioner's submissions is irrelevant to the issues properly before the Court.
I have carefully reviewed the submissions, and, in light of petitioner's objections, have conducted a de novo review of the underlying record, including the state court hearing, trial, and sentencing transcripts. See 28 U.S.C. § 636(b); Rule 72, Fed. R. Civ. P. Having done so, I adopt Judge Francis's R&R and deny the petition for a writ of habeas corpus. I briefly address each of petitioner's claims in turn.
Petitioner seeks relief on the ground that the state trial court improperly denied his suppression motion, in which he claimed that the officers who arrested him lacked reasonable suspicion to conduct a "stop and frisk." Petitioner argues that the gun that was seized from him as a result of that frisk was inadmissible as the fruit of an illegal search or seizure. Judge Francis correctly stated that petitioner may not obtain habeas relief on the basis of an alleged Fourth Amendment violation unless he was denied "an opportunity for full and fair litigation" of the claim in the state courts. See Stone v. Powell, 428 U.S. 465, 494 (1976). A petitioner is denied such an opportunity only "(a) if the state has provided no corrective procedures at all to redress the alleged fourth amendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citation omitted); see also, e.g., Brown v. Connell, 2006 WL 1132053 at *6 (S.D.N.Y. Apr. 28, 2006).
As noted in the R&R, there is no dispute as to the first prong. New York's procedure for challenging searches and seizures, embodied in its Criminal Procedure Law §§ 710.10 et. seq., has long been recognized as adequate to constitute a "full and fair" opportunity to litigate Fourth Amendment claims. See Capellan, 975 F.2d at 70 n.1; Hill v. Greiner, 2005 WL 3454737 at *3 (S.D.N.Y. Dec. 15, 2005) ("Procedures to address Fourth Amendment violations in New York are codified in New York Criminal Procedure Law §§ 710 et seq . . . and meet part (a) of the Capellan test.") (citations omitted). Here, appropriate procedures existed and petitioner availed himself of those procedures. He moved to suppress the evidence and was granted an evidentiary hearing. The motion was denied at the conclusion of the hearing.
(Hrg. Tr. at 100) In affirming petitioner's conviction, the Appellate Division held that the suppression motion was properly denied, as the stop and frisk was supported by reasonable suspicion. Applewhite, 298 A.D.2d at 136-37. As discussed above, the Court of Appeals then denied petitioner's motion for leave to appeal, finding that there was "no question of law presented which ought to be reviewed" by that court. (Davis Decl. Ex. G) The Court of Appeals adhered to its denial upon reconsideration.
Petitioner nevertheless contends that this Court should find that
there was an "unconscionable breakdown" in the process because the
hearing judge was biased against him and/or predisposed to find in
favor of the prosecution on Fourth Amendment issues.*fn5
Having reviewed the transcript of the hearing, there is no
evidence that Justice Berkman was biased against petitioner.
Petitioner was afforded the opportunity for appellate review of his
Fourth Amendment claim. There was no "breakdown" in the process, and
habeas relief is barred by Stone.*fn6
Allegedly Prejudicial Testimony
Petitioner claims that he was denied his constitutional rights to due process and a fair trial because a prosecution witness, Christian Valdera, repeatedly referred to petitioner as "the shooter," despite the fact that Valdera had been unable to identify petitioner either in a police lineup following the shooting incident, or in the courtroom. The Appellate Division found that such testimony was not prejudicial, as Valdera testified on direct examination that he did not get a good look at the shooter's face. (Trial Tr. 368) Valdera also testified on direct examination that he was unable to identify petitioner as the shooter at the police lineup, and stated that he likely would not be able to recognize the shooter in court during trial, since he did not get a good look at the time of the incident. (Trial Tr. 373-74) Moreover, as the Appellate Division ...