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Nowlin v. Greene

December 21, 2006


The opinion of the court was delivered by: Douglas F. Eaton, United States Magistrate Judge


Petitioner Tyrone Nowlin brings this habeas petition pursuant to 28 U.S.C. § 2254 challenging his state court conviction for two counts of sexual abuse in the first degree, two counts of sodomy in the first degree, six counts of sexual abuse in the second degree, and two counts of endangering the welfare of a child. In his petition, he argues that: (1) his due process rights were violated when the trial court denied his for-cause challenge of a prospective juror; and (2) the trial court violated his right to a fair trial by admitting the limited testimony of two alleged prior victims and denying his motion for mistrial after the alleged victims testified beyond the scope permitted by the court.

On January 13, 2005, Magistrate Judge Douglas F. Eaton issued a Report and Recommendation (the "Report") recommending that the petition be denied in its entirety. Prior to issuing the Report, Magistrate Judge Eaton sent petitioner copies of requested cases and a June 16, 2004 order directing him to serve and file reply papers by August 16, 2004. (Report 2.) In his Objection to the Report (the "Objection"), petitioner states that he received neither the copies nor the order, and as a result did not file a reply.*fn1 (Objection 1-2.) After requesting and receiving two extensions of time to file the Objection, petitioner filed objections six days late. The Court will treat his objections as timely. For the reasons set forth below, the Court adopts the Report in its entirety and denies the petition.


On September 24, 1999, following a jury trial in the Supreme Court of New York, Bronx County, petitioner was convicted of two counts of Sexual Abuse in the First Degree, N.Y. Penal Law § 130.65[3] (McKinney 2004), two counts of Sodomy in the Second Degree, N.Y. Penal Law § 130.45 (McKinney 2004), six counts of Sexual Abuse in the Second Degree, N.Y. Penal Law § 130.60[2] (McKinney 2004), and two counts of Endangering the Welfare of a Child, N.Y. Penal Law § 260.10[1] (McKinney 1999).

As a second-time felony offender, defendant was sentenced to two determinate terms of seven years imprisonment on the first-degree sexual abuse counts, determinate terms of one year imprisonment on each of the six second-degree sexual abuse counts and on each of the child endangering counts, and indeterminate terms of three and one-half to seven years imprisonment on each of the sodomy counts. The sentences for first-degree sexual abuse were imposed to run consecutively to each other. The sentences for sodomy were imposed to run concurrently, but consecutively to the first-degree sexual abuse sentences. Otherwise, the sentences were imposed to run concurrently for an aggregate term of imprisonment of twenty-one years.

The facts underlying this petition are discussed in greater detail in the Report, familiarity with which is presumed, and which is attached herewith for ease of reference. A brief summary of the facts, however, follows here.

Facts Underlying Petitioner's Prospective Juror Claim

During jury selection, one prospective juror told the court that she had been sexually abused as a child. (Aug. 16,1999 Tr. 118.) After being questioned by the court, the prospective juror stated that she could be fair and impartial despite her personal experience. (Id. at 118-20.) The prospective juror again stated her ability to be fair during the prosecutor's questioning. (Id. at 142-43.) Petitioner challenged this prospective juror for cause, but the court denied the challenge. (Id. at 163-64.) After using a peremptory challenge against her, petitioner exhausted his peremptory challenges before the completion of jury selection. (Id. at 259.)

Facts Underlying Petitioner's Prejudicial Testimony and Mistrial Claims

Before the start of the trial, after a full hearing pursuant to People v. Molineux, 61 N.E. 286 (N.Y. 1901), the court gave the prosecution permission to present the testimony of two twenty-three-year-old males who alleged that petitioner had sexually molested them when they were approximately twelve years old. The prosecution stated that the purpose of this testimony was to show petitioner's intent with respect to the pending case and to refute the defense of mistake or accident. (Aug. 16,1999 Tr. 167-69.) Later, the court clarified that the evidence was only admissible as to the sexual abuse charges, and was not applicable to the charges of sodomy and endangering the welfare of a child, with respect to which the defense of mistake or accident was inapplicable. (Aug. 17,1999 Tr. 268-69.) The prosecutor informed the trial court that she would instruct one adult witness not to mention that petitioner sodomized him, and would instruct the other adult witness not to reveal that petitioner placed him in handcuffs. (Aug. 20,1999 Tr. 56670.) Before either witness testified, the court instructed the jury regarding the limited purpose of the testimony. (Id. at 574-77.)

Both witnesses testified that defendant had fondled them and briefly mentioned the matters they had been directed not to discuss. The court gave another limiting instruction following the prosecutor's direct examination of the first witness. (Id. at 588.) After the direct examination of the second adult witness, petitioner moved for a mistrial. (Id. 602-03.) The court denied this motion. (Id. at 603-04.) During the court's final instructions to the jury, it gave a further cautionary instruction explaining the limited purpose of the testimony and instructing the jury to disregard the disallowed testimony. (Aug. 23,1999 Tr. 692-716; Aug. 24,1999 Tr. 778-81).

3. Appellate History

After the jury convicted petitioner of sexual abuse, sodomy, and endangering the welfare of a child, petitioner appealed on Sixth and Fourteenth Amendment grounds. Petitioner argued that (1) he was denied his due process rights when the court denied his challenge for cause of a prospective juror; and (2) it was error for the court to admit the testimony of the two adults and deny the motion for mistrial. With respect to petitioner's claims, the New York Appellate Division, First Department, held that (1) "the record supports the court's determination that the prospective juror, who herself had been abused as a child, gave the requisite unequivocal assurance of impartiality"; and (2) "[n]one of the evidence at issue deprived defendant of a fair trial, particularly in light of the court's thorough instructions to the jury." People v. Nowlin, 747 N.Y.S.2d 92,93 (N.Y. App. Div. 2002). The New York Court of Appeals denied petitioner leave to appeal. People v. Nowlin, N.E.2d 923 (N.Y. 2002). This petition and Magistrate Judge Eaton's Report recommending that it be denied followed.


A district court may designate a magistrate to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within ten days of service of the recommendation, any party may file written objections to the magistrate's report. Id.

Although petitioner claims that he did not receive Magistrate Judge Eaton's order directing him to submit a reply brief, petitioner did receive the Report on January 18, 2005 and eventually submitted Objections. (Objection 2.) Petitioner was able to raise the arguments in his untimely objections that he would have presented in his reply papers. The Court, as noted above, will treat his objections as timely.

Reviewing courts should review a report and recommendation for clear error where objections arc "merely perfunctory responses," argued in an attempt to "engage the district court in a rehashing of the same arguments set forth in the original petition." Vega v. Artuz, No. 97 Civ. 3775 (LTS), 2002 U.S. Dist. LEXIS 18270, 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002); accord Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). Where objections to a report are "specific and ... address only those portions of the proposed findings to which the party objects," district courts should conduct a de novo review of the issues raised by the objections. Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 381-82 (W.D.N.Y. 1992); see also Fed. R. Civ. P. 72(b).

In his Objections, petitioner again argues that his Sixth Amendment right to a trial free from bias or prejudice was violated when he was forced to use his last preemptory challenge to excuse a prospective juror that, according to petitioner, ought to have been dismissed for cause. He further argues, again, that the trial court's failure to exclude the two adults and later refusal to grant a mistrial after the two adults testified contrary to the limiting instructions was error under the Federal Rules of Evidence. Petitioner's objections do no more than repeat the arguments made in his original petition and would ordinarily be subject to review only for clear error. Nevertheless, because petitioner asserts that he did not have the opportunity to file a reply brief in support of his petition, the Court will undertake a de novo review of petitioner's claims.


Petitioner filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214 (Apr. 24, 1996). Thus, the applicable standard of review is governed by AEDPA as codified in 28 U.S.C. § 2254(d). See Torres v. Berbary, 340 F.3d 63, 67-68 (2d Cir. 2003); Vasquez v. Struck, 228 F.3d 143, 147 (2d Cir. 2000). Under AEDPA, a federal court may grant a petition for habeas corpus, notwithstanding contrary state court adjudication on the merits, in accordance with the following provisions:

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 ...

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