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Andrade v. Martusello

United States District Court, S.D. New York

July 9, 2015

ALLAN ANDRADE, Petitioner,


RICHARD J. SULLIVAN, District Judge.

Allan Andrade ("Petitioner") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 2 (the "Petition" or "Pet.")), challenging his conviction in New York Supreme Court, Bronx County, on one count of first degree manslaughter, for which he was sentenced to a term of twenty-five years of imprisonment. Now before the Court is the Report and Recommendation of the Honorable Andrew J. Peck, Magistrate Judge, recommending that the Petition be denied (Doc. No. 16 (the "Report" or "Rep.")), as well as Petitioner's objections to the report (Doc. No. 18 ("Obj.")). The relevant facts and procedural history relating to the Petition are set forth in detail in the Report. For the reasons set forth below, the Court adopts the Report in its entirety and denies the Petition.


A federal court may grant habeas corpus relief only if a claim that was adjudicated on the merits in state court (1) "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or (2) "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). "Clearly established Federal law means the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state court decision." Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (internal quotation marks omitted). A state court decision is "contrary to" such a holding only where the state court "either arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law' or confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at [the opposite result].'" Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001) (quoting Williams v. Taylor, 529 U.S. 362, 402 (2000)). An "unreasonable application' of those holdings must be objectively unreasonable, ' not merely wrong; even clear error' will not suffice." White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (internal quotations omitted). A federal court should grant habeas relief only if "the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. (quoting Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011)).

A court may accept, reject, or modify, in whole or in part, the findings or recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). A court may accept those portions of a report to which no specific, written objection is made, as long as the factual and legal bases supporting the findings are not clearly erroneous. See Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y. 1997) (citing Fed.R.Civ.P. 72(b) and Thomas v. Arn, 474 U.S. 140, 149 (1985)). When a party makes specific objections to a magistrate judge's findings or legal conclusions, the court must undertake a de novo review of the objections. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). However, "to the extent... that the party makes only conclusory or general arguments, or simply reiterates the original arguments, the Court will review the Report strictly for clear error." DiPilato v. 7-Eleven, Inc., 662 F.Supp.2d 333, 339 (S.D.N.Y.2009) (quoting IndyMac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07-cv-6865 (LTS), 2008 WL 4810043, at *1 (S.D.N.Y. Oct. 31, 2008)). A magistrate judge's decision is clearly erroneous only if the district court is "left with the definite and firm conviction that a mistake has been committed." SEC v. Cobalt Multifamily Investors I, Inc., 542 F.Supp.2d 277, 279 (S.D.N.Y. 2008) (quoting Chen v. Bd. of Immigration Appeals, 435 F.3d 141, 145-46 (2d Cir. 2006)).


The petition asserts two claims, both of which the Report thoroughly addressed and rejected. Specifically, Petitioner argues that (1) the trial court violated his Sixth Amendment right to confront and cross-examine the witnesses against him when it admitted portions of a videotape into evidence at trial, and (2) his right to effective assistance of counsel under the Seventh Amendment and his right to due process under the Fourteenth Amendment were violated because he was shackled during the trial and because he was denied access to a writing instrument. The Court addresses each objection in turn.

A. Admission of the Pallor Videotape

At trial, Petitioner argued that the incriminating statements he made to the police during his interrogation on December 26, 2002 were coerced. (Rep. at 3.) To rebut this contention, the prosecution sought to introduce portions of a videotape that police had shown to Petitioner during his interrogation. In that videotape, Petitioner's friend, Larvell Pallor, identified Petitioner as one of the gunmen in a separate related incident (the "Pallor videotape"). In essence, the prosecution sought to introduce the videotape in order to show that Petitioner voluntarily made incriminating statements after watching the Pallor videotape, and not as a result of coercion. The trial court permitted the prosecution to introduce and play the Pallor videotape, but before doing so, gave a limiting instruction that instructed the jury to consider the Pallor videotape only as it pertained to the voluntariness of Petitioner's statements to the police on December 26, 2002, and not for the truth of the matters asserted in the videotape.

Petitioner argues that the admission of the Pallor videotape violated the Confrontation Clause because Pallor was not subject to cross-examination and his identification of Petitioner as one of the gunmen in the separate related incident was testimonial. (Rep. at 28.) The Report rejected this argument, noting that the videotape was introduced not for the truth of Pallor's statements, but to rebut Petitioner's argument that his statements to police were involuntary, which the Report concluded was permissible under Tennessee v. Street, 471 U.S. 409 (1985). (Rep. at 29.) The Report also pointed out that the trial court adequately and appropriately instructed the jury, both before the videotape was admitted and in the final jury charge, to consider the videotape only for this limited purpose. (Rep. at 29-30.) Accordingly, the Report concluded that admission of the videotape did not violate the Confrontation Clause. (Rep. at 28.)

Petitioner challenges the Report's conclusion on several grounds. First, Petitioner objects that the relevant standard is not whether the videotape was offered for something other than the truth, but whether it was offered for a "legitimate" non-truth purpose. (Obj. at 5.) Petitioner characterizes the link between the separate related shooting and the shooting for which Petitioner was convicted as "critical, " and argues that because the only evidence identifying Petitioner as a gunman in the separate related incident was the Pallor videotape, the videotape must have been offered for the truth of the identification. (Obj. at 1-3.) Second, Petitioner suggests that the reasoning of Street applies only if a criminal defendant asserts that police forced him to adopt a co-defendant's confession and, even then, only if rebuttal of that defense is impossible without admitting the co-defendant's confession. (Obj. at 5-7.) In this vein, Petitioner argues that even if the Pallor videotape could have been offered for a "legitimate" non-truth purpose, the prosecution should have been required to achieve that purpose through other, less prejudicial means. (Obj. at 9-11.) Third, Petitioner suggests that the prosecution should have called Pallor to testify, so he could have been subjected to cross-examination. (Obj. at 3.) Fourth, Petitioner argues that the trial court's limiting instructions were inadequate to neutralize the risk that the jury would consider the videotape for an improper purpose. (Obj. at 11-12.)

At the outset, the Court observes that almost all of Petitioner's objections "simply reiterate" points that were fully argued to Judge Peck, and therefore "the Court will review the Report strictly for clear error." DiPilato, 662 F.Supp.2d at 339. Undertaking that review, the Court finds that the Report's conclusion that the trial court did not violate the Confrontation Clause when it admitted the Pallor videotape is not clearly erroneous, and therefore adopts it. Indeed, even if the Court were to undertake de novo review, the result would be the same.

In Tennessee v. Street , the Supreme Court held that the Confrontation Clause was not implicated when the prosecution sought to introduce an unavailable declarant's out-of-court statements to explain how and why a defendant made a confession. The defendant in Street challenged the voluntariness of his confession, claiming that the police officer who interrogated him had forced him to adopt the confession of a co-defendant. 471 U.S. at 410-11. To rebut this claim, the prosecution had the interrogating police officer read the co-defendant's confession into evidence to show that there were discrepancies between the defendant's confession and the co-defendant's confession. Id. The Supreme Court found that this " nonhearsay aspect of [the co-defendant's confession] - not to prove what happened at the murder scene but to prove what happened when [the defendant] confessed - raise[d] no Confrontation Clause concerns." Id. at 414 (emphasis in original). The Supreme Court also held that a court could rely on its limiting instructions to neutralize the risk that the jury would consider the confession for an improper purpose. Id. at 414-15 & 417 n.6.

The trial court's decision to permit the prosecution to play the Pallor videotape to rebut Petitioner's claim that his confession was coerced was not "contrary to, " nor did it "involve[] an unreasonable application of, " Street. Here, as in Street, the prosecution introduced Petitioner's own statements as evidence of his guilt, and Petitioner contested the voluntariness of those statements. Then, as in Street, the trial court permitted prosecutors to introduce an out-of-court statement to show the context under which Petitioner made his incriminating statements. And finally, as in ...

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