Largo v. Poole

Filing 34

MEMORANDUM & ORDER: The pro se petitioners Rule 60(b) motion 31 is denied. Because he has not made a substantial showing of a denial of his constitutional rights, a certificate of appealability will not issue. A copy of this decision will be mailed to the pro se petitioner from chambers and by regular mail. Ordered by Judge Frederic Block on 6/11/2014. (Innelli, Michael)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROBERT LARGO,
Movant,

MEMORANDUM AND ORDER
Case No. 03-CV-672 (FB) (LB)

-againstTHOMAS POOLE,
Respondent.
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Appearances:
For the Movant:
ROBERT LARGO, pro se
#99-A-2746
Five Points Correctional Facility
State Route 96
PO Box 119
Romulus, New York 14541

For the Respondent:
JOHN CASTELLANO, ESQ.
MICHAEL TARBUTTON, ESQ.
Queens County DA’s Office
Appeals Bureau
Kew Gardens, New York 11415

BLOCK, Senior District Judge:
Robert Largo is in custody after convictions in New York Supreme Court,
Queens County, for, inter alia, rape, burglary, robbery, assault, sexual abuse, and
criminal possession of a weapon. He was sentenced to a term of 45 years to life. The
Second Appellate Division affirmed the judgment in 2001. See People v. Largo, 722
N.Y.S.2d 809 (2d Dep’t 2001). In 2004, the Court denied Largo’s petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. See Largo v. Griener, 2004 WL
725319 (E.D.N.Y. March 4, 2004). Largo now moves for relief from judgment
pursuant to Fed. R. Civ. P. 60(b). For the following reasons the motion is denied.

I
A. Ineffective Assistance of Counsel
In his § 2254 petition, Largo argued that “trial counsel was ineffective for
failing to more vigorously cross-examine the detective at the Wade hearing” about
whether the detective had shown the victim the clothing that Largo wore in the lineup. Griener, 2004 WL 725319, at *2. Largo now argues that the Court improperly
disposed of his claim by holding it procedurally barred. But although the Court
acknowledged that the government had argued that the claim was procedurally barred,
it performed the substantive analysis and held that “ultimately, Largo’s claims lack
merit” because he could not demonstrate that “but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. (citing Strickland v.
Washington, 466 U.S. 668 (1984)).
Furthermore, Largo must recognize that the Court reached the merits, because
later in his supporting memorandum he argues that the Court erred by failing to hold
a hearing before it reached the merits of his ineffective assistance of counsel claim.
In making his argument, however, Largo simply assumes that the Court erred when
it analyzed the claim and found it to be meritless—but he fails to explain how and
instead provides little more than conclusory assertions.

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B. Fraud on the Court
Largo asserts that there were photographs of the line-up showing him in a
windbreaker jacket, that the State’s attorney had seen the photographs, and that based
on the photographs the attorney knew that a detective testified falsely when he said
he showed the victim clothing consisting of a bandana and a “kind of big jacket.”
Griener, 2004 WL 725319, at *4 (citing Trial Tr. at 682-83). These familiar
arguments are another effort to have the Court reconsider Largo’s previous claim that
the line-up was unduly suggestive. As the Court stated in its prior decision, nothing
in the record or in the testimony from the trial—where Largo’s allegations about the
clothing were thoroughly explored—supports his claim. Id.(citing Trial Tr. at 513,
601).
II
Largo’s Rule 60(b) motion is denied. Because he has not made a substantial
showing of a denial of his constitutional rights, a certificate of appealability will not
issue.
SO ORDERED.

_/S/ Frederic Block_
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
June 10, 2014
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