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Lionel Piper v. Joseph T. Smith

January 13, 2011


The opinion of the court was delivered by: Denise Cote, District Judge:


Lionel Piper brings this timely filed pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction following a jury trial on the charge of robbery in the second degree, N.Y. Penal Law § 160.10(1). The petition was referred to the Honorable Ronald L. Ellis for a report and recommendation (the "Report") on January 8, 2008. The Report was filed on May 24, 2010, and recommends that the petition be denied. On September 8, Piper filed his objections to the Report. For the following reasons, the Report is adopted and the petition is denied.


The facts relevant to the petition are set out in the Report and are summarized here. On May 17, 1997, K-Mart security guards Thomas Grant ("Grant") and Johnny Soto ("Soto") observed Piper -- a recently fired employee of K-Mart -- and two other males entering a K-Mart in the Bronx. The two males accompanying Piper placed CD-ROM games in their jackets while Piper stood nearby and acted as a lookout. The guards contacted Tristar Patrol Service and asked for assistance. Tristar employee Nelson Rivera ("Rivera") joined Grant and Soto. Grant, Soto and Rivera followed the three men into the parking lot. When Grant identified himself as a security guard, Grant, Soto and Rivera each saw Piper lift his jacket to reveal the butt of a black handgun in his waistband. Piper and the other two men then got into a car and drove away.

Piper was charged with robbery in the first degree, robbery in the second degree, and criminal possession of stolen property in the fifth degree. Due to prosecutorial misconduct, Piper's first two trials ended in mistrials. At Piper's third trial, which concluded on April 11, 2000, a jury convicted Piper of the lesser felony offense of robbery in the second degree, N.Y. Penal Law § 160.10(1). The Bronx County court found Piper to be a persistent violent felony offender and sentenced him to an indeterminate term of twenty-five years to life imprisonment.

During Piper's third trial, the defense called private investigator Kevin Hinkson ("Hinkson") to testify. A report prepared by Hinkson indicates that over two and a half years after the robbery, he spoke with a K-Mart employee who was allegedly in the parking lot following the robbery, but who had not seen Piper display a gun. When Hinkson identified himself, the employee refused to speak further. Hinkson's report does not include the name of the employee that Hinkson interviewed and merely describes him as a "black [male] with a stocky build." At trial, Hinkson testified that he could not testify "with certainty" that Grant was the employee with whom he had spoken. The trial judge ruled that Hinkson could not testify regarding the interview, because the defense had failed to establish that Grant was the employee with whom Hinkson had spoken.

Piper appealed his conviction to the Appellate Division, First Department, based on three grounds: (1) the trial court violated Piper's Sixth Amendment right to confront the witnesses against him by admitting the testimony of prosecution witnesses that they were told by their superior to watch out for Piper whenever he came into the store because he had been fired and he was angry; (2) the cumulative effect of the prosecutor's improper remarks during summation deprived Piper of his right to a fair trial; and, (3) the enhanced sentence based on New York's persistent felony offender statutes violated Piper's constitutional right to a fair trial. On September 20, 2005, the Appellate Division affirmed Piper's conviction. People v. Piper, 21 A.D.3d 816 (N.Y. App. Div. 2005). The New York Court of Appeals denied leave to appeal on November 29, 2005. People v. Piper, 5 N.Y.3d 884 (2005).

On February 17, 2007, Piper moved pro se pursuant to N.Y.C.P.L. § 440.10 to vacate his conviction on the grounds that he received ineffective assistance of counsel since: (1) his attorney failed to properly prepare Hinkson to testify; and, (2) his attorney failed to impeach Soto's trial testimony with police reports containing prior inconsistent statements regarding the number of firearms and the getaway cars. The Bronx County court denied Piper's § 440.10 motion on June 18, 2007. The Appellate Division denied his application for leave to appeal on October 2, 2007.

Piper filed this pro se petition on November 7, 2007. The petition raises four challenges to Piper's conviction: the three grounds that Piper cited as the basis for his direct appeal to the Appellate Division and the ineffective assistance of counsel claims that Piper made by subsequent § 440.10 motion. The Report concludes that the three bases raised during Piper's appeal to the Appellate Division are procedurally barred and that the claims for ineffective assistance of counsel lack merit. Although Piper contends that he objects to every conclusion in the Report, he only offers specific objections with respect to the Report's treatment of his ineffective assistance of counsel claims.


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). 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 error on the face of the record." Wilds v. United Parcel Serv., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003). De novo review is required before a district court can adopt those portions of a report to which a petitioner has objected. § 636(b)(1).

Not all objections, however, trigger de novo review. "[O]bjections to a Report and Recommendation are to be specific and are to address only those portions of the proposed findings to which the party objects." Kirk v. Burge, No. 07 Civ. 7467(LTS), 2009 WL 438054, at *1 (S.D.N.Y. Aug. 6, 2009). "[W]hen a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Walker v. Vaughan, 216 F. Supp. 2d 290, 292 (S.D.N.Y. 2002); accord Watkins v. Artus, 08 Civ. 5891(RJH), 2010 WL 5060883, at *1 (S.D.N.Y. Dec. 8, 2010).

The following discussion first reviews, under the clear error standard, the Report's conclusions to which Piper has failed to raise any "specific" objections. Next, Piper's objections to the Report's findings regarding his ineffective assistance of counsel claim are described and rejected under the de novo standard of review.

I. The Three Procedurally Barred Claims Piper does not make any specific objections to the Report's conclusion that three of Piper's claims are procedurally barred since Piper failed to preserve them for appellate review. The Report correctly recites the rule for determining when a claim is precluded from habeas review because a petitioner's failure to comply with state procedural requirements prevents a state court from reaching the merits of the petitioner's federal claim. When that occurs, the state court's decision rests on an independent and adequate state ground. Further, the Report accurately applies this rule to the three claims raised by the petitioner that the Appellate Division deemed to be procedurally barred from review on the merits since the petitioner neglected to preserve them in the manner required by ...

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