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Burrell v. Duncan

August 7, 2007


The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.


Petitioner Rickey Burrell ("Petitioner") was convicted of robbery in the first and second degrees in New York State Supreme Court. He is currently serving concurrent terms of 12 1/2 to 25 years for first-degree robbery, and 7 1/2 to 15 years for second-degree robbery. Petitioner has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

On January 24, 2006, Magistrate Judge Theodore H. Katz issued a Report and Recommendation ("Report"), recommending that the Court deny the § 2254 petition. Petitioner, who obtained counsel during the pendency of his § 2254 petition, timely filed objections to the Report. For the reasons set forth below, the Court adopts the Report in its entirety.

I. Background

The Report, familiarity with which is assumed, thoroughly recounts the background of this case; the Court repeats the facts here only as necessary.

On October 30, 1994, a Blockbuster Video store in Manhattan was robbed at gunpoint. Monica Dupree ("Dupree"), a store manager who was working at that time, told police that Petitioner had been involved in the robbery as a lookout; she was familiar with Petitioner because she had worked with him in 1994 at a different Blockbuster store. Dupree later identified Petitioner in a line-up. Two weeks after the robbery, police arrested Petitioner and charged him with robbery in the first and second degrees.

Dupree and arresting officer Thomas Frey ("Frey") testified at Petitioner's trial. Dupree testified that she first met Petitioner in April or May of 1994 at a different Blockbuster Video store where she had worked as a customer service representative and Petitioner had worked as a security guard. She testified that she worked with Petitioner two or three additional times,*fn1 that she spoke with Petitioner, and that she remembered his physical appearance, particularly his height and distinctive nose.

Frey testified that, immediately after the robbery, Dupree provided a statement to him, in which she: (1) described the man who had stood outside the door; (2) told Frey that the man's name was "Rickey"; and (3) told Frey that Rickey had worked as a security guard at a different Blockbuster Video store. Frey testified that, after arresting Petitioner, he read Petitioner his Miranda*fn2 rights, at which point Petitioner declined to answer questions and said that he wanted to speak with a lawyer. Frey then put Petitioner into a holding area and called Dupree from a desk about twenty-five feet away to arrange for her to view a line-up. As Frey prepared to fingerprint Petitioner, Petitioner said, "[i]f you have no witnesses, you have no case." After this exchange, Frey took out a small address book he had seized from Petitioner and began to copy numbers from it on a copy machine about four feet from Petitioner's holding cell. Petitioner asked Frey what he was doing. Frey replied, "I am copying your phone numbers to see if I [can] find pretty much the guys that you were with during the robbery." Petitioner "chuckle[d]" and said, "you can't trace beeper numbers." Frey said that he could, and Petitioner responded, "you can't trace disconnected beeper numbers."

The jury returned a guilty verdict on January 8, 1998; Petitioner was sentenced on May 15, 1998. On April 23, 1999, Petitioner filed a pro se motion to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10. In a decision and order dated August 17, 1999, the state court denied Petitioner's motion without a hearing, finding that "sufficient facts appear in the record to permit adequate review on appeal." Petitioner sought and was granted leave to appeal the denial of his § 440.10 motion.

The Appellate Division, First Department, found that each of Petitioner's claims failed on the merits. On September 30, 2003, the New York Court of Appeals denied Petitioner's application for leave to appeal. Petitioner then filed the instant § 2254 petition.

II. Discussion

Petitioner argues that: (1) the People did not prove his guilt beyond a reasonable doubt; (2) Frey violated his Fifth Amendment rights; and (3) his Sixth Amendment right was violated when counsel failed to make a speedy trial motion. The Court has considered each argument de novo. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. Pro. 72(b).

A. The People Proved their Case Beyond a Reasonable Doubt

Petitioner objects to the Report, arguing that Dupree's testimony was unreliable and incredible and that, even if Dupree had correctly identified him as the lookout, there was insufficient evidence to conclude that he acted in concert with the other robbers. Pet.'s Objections 4-5. The Court, however, agrees with the Report's conclusion that a rational jury could ...

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