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Mikel v. Zon

October 19, 2007

LAWRENCE MIKEL, PETITIONER,
v.
ANTHONY F. ZON, SUPERINTENDENT OF WENDE CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Judge

DECISION AND ORDER

INTRODUCTION

Petitioner Lawrence Mikel ("Petitioner") seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, vacating his convictions in New York State Supreme Court, Monroe County, of Murder in the Second Degree, Robbery in the First Degree, Grand Larceny in the Fourth Degree, and Criminal Possession of a Weapon in the Second Degree. Now before the Court are Petitioner's Objections [#10] to a Report and Recommendation [#9] of the Honorable Victor E. Bianchini, United States Magistrate Judge, which recommended the denial of the petition. For the reasons that follow, the Court denies Petitioner's objections and adopts the Report and Recommendation in all respects.

BACKGROUND

The facts of this case were detailed in the Report and Recommendation and need not be repeated here. It is sufficient to note that Petitioner's convictions arise from the robbery and murder of two individuals, Terry Floyd and Mary Adamski, in two separate and unrelated incidents in the City of Rochester. Petitioner gave a statement to police in which he admitted participating in the robberies but denied shooting the victims.*fn1 Petitioner was tried and convicted in 1994, however, the convictions were reversed because the trial court had submitted an annotated verdict sheet to the jury. See, People v. Mikel, 237 A.D.2d 982, 654 N.Y.S.2d 907 (4th Dept. 1997).

In 1997 Petitioner's second trial was held before the Honorable Donald Mark, Supreme Court Justice. During voir dire, Justice Mark asked potential jurors if they or anyone close to them had "been arrested for, charged with, or accused of the commission of any type of crime." The prosecutor subsequently asked potential jurors if they had ever visited anyone in jail. Significantly, a potential juror named Sharon Pearce ("Pearce") did not respond to either question, though other potential jurors did. Pearce was eventually selected to sit on the jury. Subsequently, during juror deliberations, a juror informed the court that Pearce told her fellow jurors that she knew someone who had been convicted based upon a false statement. Justice Mark brought Pearce into court and questioned her, in the presence of Petitioner, the prosecutor, and defense counsel. Pearce acknowledged that her brother had been prosecuted for murder by the Monroe County District Attorney thirteen years earlier and had been convicted. Ms. Pearce further indicated that the police had done "a lot of things wrong" in the case, such as lying about having advised her brother of his rights. Pearce further indicated that she had visited her brother in prison, that she believed he was illegally convicted, and that her family was considering an appeal.

When asked why she did not respond to the pertinent questions during voir dire, Pearce initially indicated that she did not "recall" failing to answer, then stated, "I really didn't think that you people -- I didn't think I would be picked." Ultimately, Pearce indicated that she chose not to answer the questions because she did not think they were important. Nevertheless, Pearce repeatedly indicated that she could be a fair and impartial juror.

Justice Mark concluded that Pearce was "grossly unqualified" to continue as a juror, and removed her pursuant to New York Criminal Procedure Law ("CPL") § 270.35(1). (Voir Dire Transcript pp. 62-63) ("[S]he did not honestly respond to the questions and the Court finds her grossly unqualified."). Additionally, Justice Mark declared a mistrial because there were no alternate jurors to replace Pearce.

Petitioner subsequently sought a writ of prohibition to prevent a re-trial, on Double Jeopardy grounds, however the New York State Supreme Court, Appellate Division, denied the request, finding that Pearce had been properly removed for failing to answer questions truthfully during voir dire and ignoring the instructions of the court. The New York Court of Appeals denied Petitioner's appeal. In 1999 Petitioner's third trial resulted in the convictions from which he now seeks relief.

After exhausting his appeals, Petitioner filed the subject habeas petition, contending that his convictions violated the Double Jeopardy Clause of the Fifth and Fourteenth Amendments. The undersigned referred the matter to Magistrate Judge Bianchini for a Report and Recommendation. The Report and Recommendation concluded that Petitioner's habeas claim lacks merit. In his Objections [#10], Petitioner contends that the magistrate judge failed to properly evaluate whether Pearce's removal from the jury comported with New York State law. Specifically, Petitioner indicates that the trial court's "failure to follow its own standard for removing a sworn juror and the consequent lack of manifest necessity for a mistrial involved an unreasonable application of clearly established constitutional law under United States Supreme Court precedent." Alternatively, Petitioner maintains that "the trial judge's decision to dismiss the juror was based on an unreasonable determination of the facts." Petitioner alleges that Pearce should not have been dismissed without a finding that she was "obviously" unfit, and that Justice Mark failed in that regard because he dismissed Pearce based upon her failure to answer the court's questions without determining whether she could be impartial nonetheless.

DISCUSSION

Rule 72(b) of the Federal Rules of Civil Procedure provides that where a Magistrate Judge issues a Report and Recommendation "dispositive of a claim or defense of a party," [w]ithin 10 days after being served with a copy of the recommended disposition, a party may serve and file specific, written objections to the proposed findings and recommendations. . . . The district judge to whom the case is assigned shall make a de novo determination upon the record, or after additional evidence, of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule. The district judge may accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions.

FRCP 72(b) (Thomson/West 2007).

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"), a federal court may grant habeas corpus relief only if the State court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or which "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." 28 U.S.C. § 2254(d). Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001). Moreover, "a determination of a factual issue made by a ...


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