Scrubb v. LaValley
MEMORANDUM AND ORDER: Having reconsidered the R&R de novo in light of Scrubb's objections, the Court again adopts the R&R and denies habeas relief. Since Scrubb has failed to make a "substantial showing of the denial of a constitutional ri ght," a Certificate of Appealability shall not issue. 28 U.S.C. § 2253(c). The Clerk of the Court is directed to enter judgment and to close the case. Ordered by Chief Judge Carol Bagley Amon on 11/24/2014. (fwd for judgment) (Fernandez, Erica)
IN CLERK'S OFFICE
U.S. Dl"Tf!fCT COURT E.D.N.Y.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NOV 25 2014
------------------------------------------------------------------x BROOKLYN OFFICE
NOT FOR PUBLICATION
MEMORANDUM & ORDER
IO-CV-03286 (CBA) (JO)
- against THOMAS LAVALLEY,
AMON, Chief United States District Judge.
Petitioner Anderson Scrubb, proceeding pro se, filed a petition for a writ of habeas corpus
on July 11, 2010. (DE# I.) The Court referred the petition to Magistrate Judge James Orenstein
who issued a Report and Recommendation ("R&R") on August I, 2013. (DE# 9.) Scrubb
failed to file timely objections to the R&R, and on September 30, 2013, the Court adopted
Magistrate Judge Orenstein's R&R without objection. (DE# 12.)
On October 11, 2013, Scrubb filed a notice of appeal (DE# 16) and, on October 31,
2013, Scrubb filed a motion pursuant to Rule 60(b)(3)(6) of the Federal Rules of Civil Procedure
seeking to vacate the judgment dismissing his petition, claiming that he did not receive a copy of
the R&R. (DE# 17.) Although the government offered proof that the R&R was mailed to him
(DE# 15), in an order dated November 11, 2013, the Court informed the Second Circuit that it
was inclined to grant Scrubb's motion and vacate the judgment in order to provide him an
opportunity to object to the R&R. (DE# 18.) On March 31, 2014, the Second Circuit remanded
the case back to the Court for further proceedings. (DE# 19.) Scrubb filed his objections to the
R&R on May 1, 2014 ("Pet. Obj."). (DE# 26.)
The Court grants Scrubb's motion to reconsider and, after reviewing his objections to the
R&R and considering the issues de novo, again adopts the R&R as the decision of the Court.
The Court briefly recites the factual background ofScrubb's state court conviction, but
assumes general familiarity with the underlying criminal case.
In 2006, Jocelyn Ford ("Ford"), a Trinidadian citizen, overstayed her visa so that she
could assist with her daughter's pregnancy. (See Trial Tr. at 236-37, DE #3 Ex. A, Parts 5-11.)
A friend introduced Ford to Scrubb, a U.S. citizen, who agreed to marry her in exchange for
$3,000. (Id. at 240-41.) Ford paid Scrubb in installments and the two were married in the
spring of2006. (Id. at 241-43.) After the marriage, however, Scrubb refused to sign Ford's
immigration paperwork unless he received an additional $2,000 or $3,000. (Id. at 243-44.)
On August 12, 2006, Scrubb met with Ford's sister, Gloria Boney ("Boney"), and again
demanded more money. (Id. at 290-91.) Boney and Scrubb argued and, when Boney threated to
call the police, Scrubb strangled her with an extension cord and repeatedly stabbed her in the
head with a screwdriver. (Id. at 291-92.)
In the early morning hours of August 13, 2006, NYPD Detectives John Anselmo
("Anselmo") and Vera Whitehall ("Whitehall") were assigned to investigate Boney's murder.
(Id. at 187-89.) Ford told the detectives that Scrubb had planned to meet with her sister, Boney,
earlier that evening and volunteered to take the detectives to Scrubb's apartment. (Id. at 189-90.)
When they arrived at the apartment at around 4 a.m., the detectives found Scrubb standing on the
stoop outside his building. (Id. at 191-92.) Anselmo asked Scrubb ifhe would come to 7lst
precinct to answer questions and Scrubb agreed, stating that would be "no problem at all." (Id. at
192, 195-96.) Since Ford was already waiting in Anselmo's patrol car, Anselmo told Scrubb that
another detective would drive him to the precinct. (Id. at 192, 195-96.) Anselmo then called the
nearby 67th precinct and requested assistance transporting Scrubb. (Id. at 192.)
Detective Kevin Gasser ("Gasser") and his partner received Anselmo's request and
arrived at the scene shortly thereafter, while Anselmo was still talking with Scrubb. (Id. at 19899.) Gasser then drove Scrubb to the 71 st precinct. (!ll at 199-200.) During the trip to the
precinct, Scrubb sat with Gasser's partner in the back of the patrol car. (Id. at 199-200.) Scrubb
was not handcuffed at any point during the trip. (Id. at 200.) When they arrived at the precinct,
Gasser placed Scrubb in an unlocked interview room and closed the door. (.!QJ
Several hours later, Detective Winfred Justice ("Justice"), the lead detective investigating
the murder, entered the interview room. (Id. at 270-71.) Prior to questioning Scrubb, Justice
provided a Miranda warning and Scrubb signed a written waiver form. (Id. at 271-75.) Scrubb
told Justice that on the night of the murder he saw several friends, but made no mention of seeing
Boney. (Id. at 275-277.) After receiving Scrubb's consent, a detective searched his apartment
and retrieved a shirt that matched a button found at the crime scene. (Id. at 277-79, 285-86.)
Other detectives interviewed Scrubb's friend, Victoria Howard, who stated that Scrubb came to
her apartment on the night of the murder and gave her three credit cards that belonged to the
victim. (Id. at 283-84, 286.)
When police confronted Scrubb with the shirt and the credit cards, he admitted to killing
Boney and signed a written confession. (Id. at 287-94.) Scrubb repeated that confession in a
later videotaped statement to an assistant district attorney. (Id. at 294-95.)
State Conviction and Appeal
Scrubb was charged with second-degree murder, three counts of fourth-degree grand
larceny, and two counts of fourth-degree criminal possession of a weapon. (Pet. App. Br., at 2,
DE# 3, Ex. C.) Before going to trial, Scrubb moved to suppress various incriminating
statements and physical evidence on the ground that it derived from an illegal arrest.
The trial court held a suppression hearing on December 3, 2007. At that hearing, the
prosecution sought to prove that Scrubb had consented to go to the police precinct. However, the
prosecution did not call Detective Anselmo, who secured Scrubb's consent, but instead called
Detective Gasser, who transported Scrubb from his apartment to the precinct. (Suppression Hrg.
Tr. at 4-13, DE # 3 Ex. A, Part 1.) Gasser testified that when he arrived he observed Scrubb
talking to Anselmo and another officer. (.!gJ In addition, he noted that Scrubb was not
handcuffed, either in the patrol car or at the precinct, and that upon their arrival at the precinct he
placed Scrubb in an unlocked interview room. (Id.) Moreover, the lead detective on the case,
Detective Justice, testified he was told by Anselmo that Scrubb had voluntarily agreed to answer
questions at the precinct. (Id. at 14-15, 20-21.) Based on Gasser's and Justice's testimony, the
trial court concluded Scrubb was not in custody when he was taken to the precinct and, therefore,
denied his motion to supress. (Memorandum, People v. Scrubb, No. 6648/06 (N.Y. Sup. Ct.
Dec. 11, 2007), DE #3 Ex. B.)
Scrubb proceeded to trial and was found guilty of second-degree murder and grand
larceny. (Trial Tr. at 669-70.) Scrubb, represented by counsel, appealed his conviction claiming
that the trial court erred in denying his suppression motion because he was unlawfully seized
when he consented to the search of his apartment and made incriminating statements. (Pet. App.
Br. at 28.) Specifically, Scrubb relied on a state court case holding that a finding of consent is
precluded where a prosecutor failed to call the officer who obtained the consent and instead
relied exclusively on the hearsay testimony of other officers. (Id.) The appellate court rejected
Scrubb's argument, People v. Scrubb, 894 N.Y.S.2d 772 (App. Div. 2010), and the Court of
Appeals denied his request for leave on May 20, 2010, People v. Scrubb, 903 N.Y.S.2d 781
(2010). Scrubb timely filed the instant petition on July 11, 2010. (DE#!.)
Habeas Petition & the R&R
Scrubb's petition asserted three bases for relief. First, he contended that his right to be
free from unreasonable seizures under the Fourth Amendment was violated when he was taken
into custody without probable cause.
12, Ground Two.) Second, he argued that the
allegedly unlawful seizure violated his Fourteenth Amendment right to due process. (Id.
Ground Three.) Third, he asserted that the prosecution's failure to call Anselmo, the detective to
whom Scrubb gave his consent to be transported to the police precinct, deprived him of his Sixth
Amendment right to confront his accuser.
12, Ground One.)
Magistrate Judge Orenstein's R&R addressed threshold procedural issues, before
resolving each of Scrubb's three claims on the merits. The R&R determined that while Scrubb's
Fourth Amendment claim was properly raised and exhausted in state court, Scrubb failed to
preserve his Due Process and Confrontation claims on appeal. (R&R at 5-6.) Nevertheless, the
R&R found that those two claims satisfied the exhaustion requirement because they would be
procedurally barred under New York law. (Id. at 6-8.)
Although the procedural bar provided a sufficient basis to deny those claims, the R&R
proceeded to reject all three claims on the merits. (Id. at 9-12.) Magistrate Judge Orenstein
correctly concluded that Scrubb's Fourth Amendment claim fell outside the scope of a federal
habeas corpus proceeding. (Id. at 9-10). 1 Since Scrubb's Due Process claim amounted to
nothing more than an attempt to end-run the habeas bar on Fourth Amendment challenges, the
Scrubb does not object to the R&R's merits determination of his Fourth Amendment claim.
Since the R&R properly denied relief on that claim (R&R at 9-10), the Court adopts that finding
as its opinion and denies the Fourth Amendment claim on the merits.
R&R likewise rejected it. Finally, the Sixth Amendment claim was dismissed because the
Confrontation Clause does not extend to pre-trial hearings and, in any event cross-examination at
trial satisfied the Sixth Amendment requirements. (Id. at 12-13 & n.6.)
Scrubb's Objections to the R&R
Scrubb raises four objections to the R&R. (DE # 26.)2 First, he claims that, in finding
that his second and third habeas claims were not properly presented in state court, the R&R
failed to construe his petition liberally. (Pet. Obj. iii! 12-15.) Second, he contends that the R&R
erred in concluding that the Sixth Amendment does not afford him the right to confront his
accuser at the suppression hearing. (Id.
Third, Scrubb objects to the R&R's failure to
excuse his procedural defaults on the Due Process and Confrontation Clause claims under
Murray v. Carrier, 477 U.S. 478, 492 (1986). (Pet. Obj. if 17.) Finally, Scrubb "objects to the
entire Recommendation" on the grounds that it fails to "state key facts of law" and provides "no
basis in the evidence for [its] proposed findings." (Id. if 18.) The Court considers each
objection in turn.
When deciding whether to adopt a report and recommendation, 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)(l)(C). To accept those portions of the R&R 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." Jarvis v. N. Am. Globex Fund, L.P., 823 F. Supp. 2d 161, 163
To the extent Scrubb argues that Magistrate Judge Orenstein erred by failing to grant an
evidentiary hearing (Pet. Obj. if 4), that claim is entirely meritless. The extensive factual record
belies Scrubb's argument that he did not have a full and fair opportunity to litigate his claim in
state court. Since the petition fails to shoulder the heavy burden necessary to justify an
evidentiary hearing, see 28 U.S.C. § 2254(e)(2), the Court rejects that objection.
(E.D.N.Y. 2011) (internal quotation marks and citation omitted). When specific objections are
made, however, "[t]he district judge must determine de novo any part of the magistrate judge's
disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). However, "to the
extent that a party makes only conclusory or general objections, or simply reiterates the original
arguments, the court reviews the Report and Recommendation only for clear error." Soley v.
Wasserman, 823 F. Supp. 2d 221, 228 (S.D.N.Y. 2011) (internal quotation marks and alterations
Failure to Liberally Construe the Habeas Petition
Scrubb's first objection, that the R&R did not liberally construe his petition, is based on a
misunderstanding of the requirement that the Court read prose petitions liberally. (Pet. '1['1[ 1315.) The R&R properly noted that the Court must broadly construe Scrubb's habeas petition "'to
raise the strongest arguments that [it] suggest[s]."' (R&R at 5 (quoting Triestman v. Fed. Bureau
of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)).) The R&R further correctly stated that the Court
must take into account arguments made on direct appeal, to the extent those arguments are
referenced in Scrubb's prose petition, and deem those arguments properly raised in this
Scrubb's objection, however, rests on the erroneous belief that the Court must broadly
construe both his pro se petition and the briefs submitted during his direct appeal. It is wellestablished that the liberal construction rule is designed to protect pro se litigants from forfeiting
their rights due to their lack oflegal education and training. See Triestrnan, 470 F.3d at 474. It
is inapplicable to motions submitted by counsel. See id.
Scrubb's contention that Magistrate Judge Orenstein applied the incorrect standard of
review is simply wrong. Since the record clearly establishes that Scrubb was represented by
counsel during his direct appeal, the Court is not required to liberally construe his appellate
briefs. (Pet. App. Br. at I); see Triestman, 470 F.3d at 474. The direct appeal failed to raise
either the Due Process or the Confrontation Clause claims Scrubb now asserts. (See Pet. App.
Br.) Thus, the R&R correctly concluded Scrubb procedurally defaulted on those claims. (See
Moreover, the R&R proceeded to analyze those claims as if Scrubb had, in fact, properly
raised them on appeal, but still concluded they were meritless. (Id. at 11-13.) As Scrubb does
not object to the R&R's conclusion that his Due Process claim fails on the merits, that
determination is reviewed for clear error. (See Pet. Obj.); Jarvis, 823 F. Supp. 2d at 163.
Finding none, the Court adopts the R&R's finding denying Scrubb's Due Process claim on the
Although Scrubb does raise an objection to the R&R's denial of his Confrontation Clause
claim on the merits, (Pet. Obj.
'If 16), that argument fails for the reasons described below.
Confrontation Clause Challenge
Scrubb claims that the R&R erred in finding that the Sixth Amendment does not provide
him with a right to confront Anselmo at the suppression hearing. (Pet. Obj.
'If 16.) Relying on
the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004), Scrubb argues
that the prosecutor's failure to call Anselmo deprived him of his right to confront the detective
through cross-examination. (!Q.J
Scrubb's reliance on Crawford is misplaced. The R&R properly found that the Sixth
Amendment's right to confrontation does not extend to pre-trial hearings. (R&R at 12 (citing
Pennsylvania v. Ritchie, 480 U.S. 39, 52 (1987)); see also Erbert v. Gaetz, 610 F.3d 404, 414
(7th Cir. 2010) (holding that the Confrontation Clause was not implicated when a statement was
considered at a suppression hearing); Francischelli v. Potter, No. 03-CV-6091 (ENV), 2007 WL
776760, at *10 (E.D.N.Y. Mar. 12, 2007) (noting that the court could find no authority applying
Crawford to a suppression hearing). Therefore, Scrubb's Confrontation Clause claim must fail.
Moreover, even ifthe Confrontation Clause applied to pre-trial hearings, the "opportunity
for full and effective cross-examination" at trial satisfies the Clause's requirements. Jones v.
Woods, No. 07-CV-1326 (CBA), 2009 WL 4906882 at *3 (E.D.N.Y. Dec. 18, 2009) (hearsay
testimony introduced in pre-trial hearing does not violate the Confrontation Clause where a
defendant has a full opportunity to cross-examine the source of that testimony at trial) (internal
quotation marks omitted). Here, Anselmo testified at trial and Scrubb had the opportunity to
cross-examine him. (Trial Tr. at 194.) That alone is a sufficient basis on which to deny Scrubb's
Sixth Amendment claim. See Jones, 2009 WL 4906882, at *3.
Scrubb next argues that the R&R "applied the wrong formulation of the 'miscarriage of
justice' standard, as articulated in Murray v. Carrier, 477 U.S. 478 (1986)." (Pet. Obj. if 17.)
Although the R&R never mentions that standard, the Court construes the objection as arguing
that the R&R misapplied Murray when it failed to excuse Scrubb's procedural default.
It is well-established that procedural default bars habeas relief unless the petitioner can
show cause for the default and actual prejudice resulting from it. Murray. 4 77 U.S. at 495-96.
However, the Court can bypass those general requirements in extraordinary cases where the
claimed constitutional violation resulted in the conviction of one who is actually innocent. Id.
To establish an actual innocence claim, the petitioner bears the demanding burden of showing
that "no reasonable jury would have found [him] guilty beyond a reasonable doubt." House v.
Bell, 547 U.S. 518, 537 (2006).
Scrubb falls well short of making that extraordinary showing. Although Scrubb claims
his conviction rests on evidence that should have been excluded, he does not contest that the
evidence in question is, in fact, incriminating and that he is actually guilty. (Cf. Pet. Obj. 'I[ 4
("[T]he facts of this case ha[ve] been fairly stated in the Magistrate [Judge's] Report and
Recommendation.")) Indeed, the Supreme Court has recognized that "[a] claim of illegal search
and seizure under the Fourth Amendment is crucially different from many other constitutional
rights; ordinarily the evidence seized can in no way have been rendered untrustworthy by the
means of its seizure and indeed often this evidence alone establishes beyond virtually any
shadow of a doubt that the defendant is guilty." Stone v. Powell, 428 U.S. 465, 490 (1976)
(quoting Kaufman v. United States, 394 U.S. 217, 237 (1969) (Black, J., dissenting)). Since
Scrubb cannot establish actual innocence, the safety valve provided in Murray to prevent
fundamental miscarriages of justice simply does not apply.
Therefore, the R&R correctly found that he must show cause and prejudice to excuse his
procedural defaults. (R&R at 7 n.3.) As Scrubb provided neither, the R&R correctly determined
that Scrubb forfeited those claims. (!.Q,)
Moreover, despite the procedural default, the R&R went on to deny Scrubb's Due
Process and Confrontation Clause claims on the merits. (Id. at 11-13.) The Court agrees with
that analysis and would therefore deny Scrubb's petition even ifit excused his defaults.
Finally, Scrubb generally objects to the R&R's findings on the basis that it "fail[ed] to
state key facts of law" and is unsupported by the evidence. (Pet. Obj. '1[ 18.) Such a vague
assertion does not constitute a proper objection. Soley. 823 F. Supp. 2d at 228. As such, it can
be disregarded by the Court. See id.
Nevertheless, this Court has reviewed the entire R&R de novo and agrees with the
Magistrate Judge Orenstein's well-reasoned recommendation.
Having reconsidered the R&R de novo in light of Scrubb's objections, the Court again
adopts the R&R and denies habeas relief. Since Scrubb has failed to make a "substantial
showing of the denial of a constitutional right," a Certificate of Appealability shall not issue.
28 U.S.C. § 2253(c). The Clerk of the Court is directed to enter judgment and to close the case.
Brooklyn, New York
s/Carol Bagley Amon
Carol Bagl~y A;Qon f
Chief United States District Judge
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