Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mark Johnson v. R&R Dale Artus

September 13, 2011

MARK JOHNSON, PETITIONER,
v.
R&R DALE ARTUS, SUPERINTENDENT, CLINTON CORRECTIONAL FACILITY, RESPONDENT.



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

USDC SDNY

DOCUMENT

ELECTRONICALLY FILED DOC #:

ORDER ADOPTING

Prose petitioner Mark Johnson ("Johnson") seeks a writ of habeas corpus from his August 10, 2004 conviction of second and third degree criminal possession of a weapon, and concurrent sentences, the maximum being thirteen years imprisonment. (Am. Pet. ¶¶ 1-5.) Johnson asserts that the trial court:

(1) violated his "right to a fair trial and to present a defense" by improperly excluding third-party allegations of police brutality (Am. Pet. ¶ 13(1)); (2) improperly modified its in limine ruling to "allow the prosecution to extensively question [Johnson] about uncharged drug crimes" (Am. Pet. ¶ 13(2)); and (3) in sentencing Johnson, improperly relied upon the prosecution's pre-sentence memorandum that included "unreliable hearsay allegations from anonymous informants concerning [Johnson's] criminal history" (Am. Pet. ¶ 13(3)).

On August 10, 2009, Johnson filed his initial pro se federal habeas corpus petition, arguing that the police lacked probable cause to search him and that the gun found during the search should have been suppressed. (Petition ¶ 13.) On November 16, 2009, Chief Judge Preska dismissed Johnson's habeas petition because "Fourth Amendment claims are not reviewable in a federal habeas corpus petition," but granted Johnson sixty days to amend to assert "any other grounds with respect to which petitioner has exhausted his state court remedies." (Nov. 16, 2009 Order 2-3.)

On January 13, 2010, Johnson filed his present pro se habeas petition asserting the above three claims. (Am. Pet. ¶ 13.) On February 4, 2010, this Court referred the case to Magistrate Judge Andrew J. Peck. On August 26, 2010, Magistrate Judge Peck issued a Report and Recommendation ("R&R") that the Court deny the Petition. On September 10, 2010, Johnson filed a one sentence objection to the "whole entire" R&R. Since Johnson's objection is not "specific," in that it "did not even address the basis for Magistrate [Peck's] recommendation," the district court is not required to conduct a de novo review of the R&R. Greene v. WCI Holdings Corp., 956 F. Supp 509, 517 (S.D.N.Y. 1997) (citations omitted). Thus, this Court may adopt the R&R, if there is no clear error on the face of the record. See id.

The Court has reviewed the R&R and Johnson's objection. For the reasons that follow, the Court adopts Magistrate Judge Peck's Report and Recommendation in its entirety. Johnson's petition is, therefore, DENIED.

BACKGROUND*fn1

I. Facts

On August 12, 2003, police officers received a radio transmission reporting a "dispute with firearms" outside the Jacob Riis Houses at 118 Avenue D in Manhattan. Upon arriving at the scene, police officers observed people running out of the building. The police were told that the perpetrators had gone upstairs and began a vertical sweep of the building. As two officers approached the third floor landing, they heard Johnson banging on an apartment door, frantically asking to be let inside while sweating profusely. The police pointed their guns at Johnson and yelled "Police, don't move." Johnson then reached his hand towards his waistband a rea. The police interpreted Johnson's movement as an indication that he might have a gun and therefore conducted a pat down during which they found a loaded nine-millimeter pistol. Johnson was promptly arrested.

II. Procedural History

On August 19, 2003, Johnson was indicted for third degree criminal possession of a weapon. On December 4, 2003, Johnson moved to suppress the pistol recovered during his August arrest on the grounds that the police lacked probable cause to search him. Johnson's motion went unopposed, and, on January 5, 2004, Justice Renee A. White ordered a Mapp/Dunaway hearing. On May 22, 2004, the State filed a superseding indictment, adding a charge for second degree criminal possession of a weapon. On August 3, 2004, Justice Charles Solomon rescinded the order granting the Mapp/Dunaway hearing, reasoning that ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.