The opinion of the court was delivered by: Denise Cote, District Judge
Corey Arthur ("Arthur") brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, following his 1998 conviction in the Supreme Court of New York, New York County for second degree murder and first degree robbery of high school teacher Jonathan Levin. On December 16, 2007, Magistrate Judge Theodore H. Katz issued a report (the "Report") recommending that the petition be denied. Arthur has objected to the Report.
For the following reasons, the Report is adopted, and the petition is denied.
As described in detail in the Report, Levin's body was found on June 2, 1997. Investigators discovered that a man later identified as Montoun Hart had used Levin's ATM card on May 30 to withdraw $800 from Levin's bank account. Under police questioning, Hart stated that he and Arthur had robbed Levin, and that Levin was killed in the course of the robbery.
Police determined that Arthur was staying at 10 Lewis Avenue in Brooklyn; they arrived at that address at approximately 1:00 p.m. on June 7. Police knocked on the apartment door and Detective Garcia, who testified at trial that he knew Arthur from the neighborhood, told Arthur through the door, "It's Garcia. I am not leaving, come on out." As soon as Arthur opened the door and stepped barefoot into the hallway, he was placed under arrest and handcuffed.*fn1 He was brought back into the apartment to retrieve his shoes, at which time he said, "I know what you guys are here for. I was going to turn myself in."
Arthur was then brought to the 81st Precinct in Brooklyn and questioned by the police. He was given his Miranda warnings, and waived his right to have counsel present. Later in the afternoon, after learning that Hart had implicated Arthur in Levin's murder, Arthur requested counsel and the police ceased questioning. At approximately midnight, Arthur was escorted to a police car outside the 81st Precinct in order to be transported to the 20th Precinct in Manhattan. As Arthur approached the police car, a crowd of spectators and news reporters that had gathered outside the station surrounded the police car. Arthur was assisted into the vehicle and was heard by one of the officers saying softly to himself, "Damn, I didn't want to be famous like this. I just wanted to make some money."
Arthur was indicted by a grand jury and scheduled for trial. Prior to trial, Arthur sought to suppress, among other things, the statements he made to police upon his arrest at 10 Lewis Avenue and the statements he made in the police car en route to the 20th Precinct in Manhattan. Arthur contended that the post-arrest statement was obtained in violation of the Supreme Court's decision in Payton v. New York, 445 U.S. 573 (1980), which held that the Fourth Amendment "prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest." Id. at 576 (citation omitted). Arthur claimed that he was entitled to Payton protection because he was an overnight guest at 10 Lewis Avenue. See Minnesota v. Olson, 495 U.S. 91, 98-99 (1990). Further, Arthur contended that the statements made in the police car were coerced because the "perp walk" from the police station to the car was the "functional equivalent of interrogation." The trial court held a suppression hearing on January 23, 1998, and again considered suppression issues on multiple days in June and September 1998.*fn2 The court denied Arthur's suppression motions in oral rulings on September 16 and October 6, 1998.
Trial began on October 8. As described in the Report, the evidence at trial established the following: On the day Levin was killed, Arthur arrived at his aunt's house with a four-to-five-inch laceration on his right hand; upon consensual search of Arthur's aunt's home, police recovered Arthur's boots and clothing, which had Levin's blood on them; Arthur's blood was found at the murder scene and on the bloody knife found there; Arthur's fingerprint was found on duct tape used to bind Levin; Arthur's DNA was on a cigarette found at the murder scene; Arthur's girlfriend testified that Arthur had confessed to killing Levin; and Arthur left a message on Levin's answering machine, urging Levin to pick up the telephone, shortly before Levin was killed. On November 10, the jury convicted Arthur of felony murder as an accomplice and two counts of robbery. He was acquitted of two murder counts charging him as a principal. Arthur was sentenced to an aggregate term of twenty-five years to life in prison.
After sentencing, the trial court issued a lengthy written opinion explaining in greater detail its oral pretrial rulings on Arthur's suppression motions. The court explained that Arthur had failed to establish standing to raise a Payton claim with respect to his post-arrest statements because he had not shown that he had a reasonable expectation of privacy in the apartment outside of which he was arrested. In the alternative, the court ruled that no Payton violation occurred because Arthur was arrested in the hallway, and not in the apartment. The court further found that Arthur had not been coerced or forcibly removed into the hallway by police. As to Arthur's "perp walk" statements, the court ruled that "[t]here was no evidence even tending to prove that any of the . . . statements made by [Arthur] were coerced by the detectives or elicited in violation of [Arthur's] constitutional rights."
On direct appeal, Arthur pressed his Payton and "perp walk" claims, and also contended that the trial court violated his constitutional right to present a defense by precluding his counsel from cross-examining the police officers who testified at trial, ostensibly in order to elicit the fact that they did not search Hart's car or home for the gun used to kill Levin. The Appellate Division rejected Arthur's arguments and affirmed his conviction. See People v. Arthur, 738 N.Y.S.2d 15 (App. Div. 1st Dep't 2002). The New York Court of Appeals denied Arthur leave to appeal on March 26, 2002.
In the instant habeas petition, commenced January 9, 2006,*fn3 Arthur repeats the three arguments he made before the Appellate Division. First, he contends that the statements made upon his arrest at 10 Lewis Avenue should have been suppressed because his arrest was illegal under Payton and People v. Harris, 77 N.Y.2d 434 (1991). Second, he argues that the statement he made in the police car en route to the 20th Precinct in Manhattan should have been suppressed because of the coercive effect of the "perp walk." Third, he argues that his Sixth Amendment rights were violated by the trial court's preclusion of questioning about the police's failure to search Hart's house and car.
The Report recommended rejection of each of the three arguments raised by the petition. A district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). The court must make a de novo determination of the portions of the report to which petitioner objects. 28 U.S.C. § 636(b)(1); see United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). To accept those portions of the report to which no timely objection has been made, "a district court need only satisfy itself that there is no clear ...