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Bogle v. Zon

July 17, 2007

MAXWELL BOGLE, PETITIONER,
v.
SUPERINTENDENT ZON, WENDE CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge

OPINION & ORDER

Petitioner Maxwell Bogle ("Bogle") filed this pro se petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his 1999 trial in absentia and conviction in New York State Supreme Court for kidnapping in the first degree; rape in the first degree (three counts); sodomy in the first degree (two counts); criminal possession of a weapon in the second degree (three counts); criminal possession of a weapon in the third degree (two counts); and assault in the third degree. He was sentenced as a violent felony offender to an aggregate term of 50 years to life.*fn1

Bogle appealed his conviction on three grounds: (1) his due process rights and his constitutional right to be present at his trial were violated when the trial court ordered, over objection, that his case proceed to trial in absentia; (2) his due process rights and constitutional right to an impartial jury were violated when the trial court denied peremptory challenges as to two potential jurors forcing him to use cause challenges; and (3) his constitutional rights were violated when the trial court imposed consecutive sentences. The Appellate Division unanimously upheld the conviction. People v. Ellis, 305 A.D.2d 208, 208 (N.Y. App. Div. 2003). The Court of Appeals denied permission to appeal on July 25, 2003.

Bogle timely filed his pro se petition for a writ of habeas corpus on August 12, 2004, raising the same three issues raised in his State appeal.*fn2 The matter was referred to Magistrate Judge Douglas F. Eaton, who issued his Report on June 30, 2006, recommending denial of the petition. Bogle timely objected to the Report solely on the issue of his trial in absentia. For reasons discussed below, the Court adopts the Report in all material respects and denies the writ of habeas corpus.

STANDARD OF REVIEW

(A) 28 U.S.C. § 2254

Under 28 U.S.C. § 2254(d)(1), habeas corpus relief may be granted only if the state court's adjudication of a federal claim "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Habeas corpus relief may also be granted when the state court's decision "was based on an unreasonable interpretation of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). As Judge Gleeson recently held:

A state court decision is an "unreasonable application" of clearly established federal law if the state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Furthermore, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable."

James v. Smith, No. 06-CV-5996 (JG), 2007 WL 1160415 (E.D.N.Y. Apr. 18, 2007) (internal citations omitted).

(B) Magistrate Judge's Report

When reviewing a Magistrate Judge's Report, the Court must make a "de novo determination of those portions of the Report or specified proposed findings or recommendations to which objections are made." 28 U.S.C. § 636(b)(1). The Court may adopt those portions of the Report to which no objections have been made and which are not facially erroneous. See La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y. 2000). There are no objections to Magistrate Judge Eaton's Report on the questions of jury challenges or the imposition of consecutive sentences. Since his findings and conclusions are not facially erroneous (indeed they are quite correct), the Court adopts them. See id.

DISCUSSION

Bogle objects solely to that portion of the Report that deals with his claim arising from his being tried in absentia, which the court must review ...


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