Umoja v. Griffin
ORDER ADOPTING REPORT AND RECOMMENDATIONS: Finding no merit to Petitioner's objections and no error in Magistrate Judge Lois Bloom's thorough and well-reasoned 25 Report and Recommendation ("R&R"), dated 4/7/14, the Cour t adopts the R&R in its entirety. Because Petitioner has not made a substantial showing of the denial of any constitutional right, no certificate of appealability will be issued. 28 U.S.C. § 2253; see Slack v. McDaniel, 529 U.S. 473 (20 05). The Court also certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Ordered by Judge Pamela K. Chen on 5/29/2014. (Lo, Justin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ORDER ADOPTING REPORT
11 CV 0736 (PKC) (LB)
PATRICK GRIFFIN, Superintendent,
PAMELA K. CHEN, United States District Judge:
Petitioner Piru Umoja (“Petitioner”), acting pro se, petitions the Court for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. This matter was referred to the Honorable Lois
Bloom, United States Magistrate Judge, for a Report and Recommendation, pursuant to 28
U.S.C. § 636(b) and Local Rule 72.1(d). In the Report and Recommendation, issued April 7,
2014, Judge Bloom recommends that the Court (a) deny the petition for a writ of habeas corpus
in its entirety; (b) decline to issue a certificate of appealability; and (c) certify that any appeal
from the Court’s judgment would not be taken in good faith. See Report & Recommendation
(Dkt. 25) at 31. On April 21, 2014, Petitioner filed objections to Magistrate Bloom’s Report and
Recommendation. See Objections to Report & Recommendation (Dkt. 26). Finding no merit to
Petitioner’s objections and no error in Judge Bloom’s thorough and well-reasoned decision, the
Court adopts the Report and Recommendation in its entirety.
STANDARD OF REVIEW
When a party objects to a magistrate judge's report and recommendation, the district
court makes a “de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” See 28 U.S.C. § 636(b)(1)(C);
Martinez v. Senkowski, 6:97-CV-0624 (FJS) (GLS), 2000 WL 888031 (N.D.N.Y. June 28,
2000) (district court “must review de novo those issues upon which a party has raised specific
objections to a Magistrate Judge's Report–Recommendation.”) (citing 28 U.S.C. § 636(b)(1);
Grassia v. Scully, 892 F.2d 16, 19 (2d Cir.1989)). However, “[g]eneral or conclusory objections,
or objections which merely recite the same arguments presented to the magistrate judge, are
reviewed for clear error.” O’Diah v. Mawhir, 08-CV-322 (TJM) (DRH), 2011 WL 933846, at *1
(S.D.N.Y. March 16, 2011) (citing Farid v. Bouey, 554 F.Supp.2d 301, 306 n. 2
(N.D.N.Y.2008)); Frankel v. N.Y.C., 2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009);
Martinez, 2000 WL 888031, at *3. “After reviewing the report and recommendation, the Court
may ‘accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge. The judge may also receive further evidence or recommit the matter to the
magistrate judge with instructions.’” 28 U.S.C. § 636(b)(1)(C); O’Diah, 2011 WL 933846, at *2
(quoting 28 U.S.C. § 636(b)(1)(C)).
Petitioner raises five objections to Judge Bloom’s Report and Recommendation
(“R&R”), in sum and substance:
1. The R&R incorrectly states that the jury only heard about the robbery of the Irene’s
Beauty Salon in the prosecution’s opening statement, when, in fact, the prosecution
introduced forensic evidence relating to that robbery (Dkt. 26 at 1-2);
2. The prosecution engaged in misconduct when it introduced the fingerprint evidence
relating to the SCK 99 Cent store robbery, knowing that it would have to dismiss that
robbery charge (id. at 2-4);
3. The R&R erroneously states that the two eyewitnesses to the Irene’s Beauty Salon
robbery testified at trial to identifying Petitioner in two separate line-ups, one on
November 18, 2004 and the other on December 9, 2004, when, in fact, Petitioner was
only in the December 9, 2004 line-up (id. at 4-5);
4. The R&R erroneously concludes that the State court properly refused to re-open the
Wade hearing after an eyewitness to one of the robberies testified at trial that he and
the other eyewitness to the robbery had viewed Petitioner’s photo array together (id.
5. The prosecution intentionally withheld from the defense 911 tapes that prove
Petitioner’s “actual innocence” (id. at 5-7).
Objection 1: Evidence Jury Received about the Irene’s Beauty Salon Robbery
Petitioner objects to the second footnote in the R&R, which states that “As discussed
herein, because neither witness to [the Irene’s Beauty Store] robbery testified at trial and the
charges were ultimately dismissed, the jury only heard about this robbery in the prosecution’s
opening statement.” Petitioner asserts that this statement is incorrect because the prosecution
presented “Forensic witnesses” from whom the prosecution “elicited testimony in reference to
the Irene’s Beauty Salon robbery.” (Dkt. 26 at 1.)
Petitioner’s assertion, however, is incorrect. No fingerprint evidence or forensic witness
testimony relating to fingerprints taken at the Irene Beauty Store was introduced at trial. The
only fingerprint evidence and testimony that was admitted, but later withdrawn, related to the
SCK 99 Cent store robbery. (Dkt. 8-4 at 357-363; Dkt. 8-5 at 409-431) (Trial Transcript or
“T”). 1 Thus, there is no error in the R&R regarding this issue.
In his objection, Petitioner cites to the same portions of the trial transcript; however, the record
does not bear out his claim that any fingerprint evidence or testimony relating to the Irene Beauty
Store robbery was introduced at trial. Petitioner also cites to pages 431-453 of the trial
Objection 2: Prosecutorial Misconduct Based on the Introduction of
SCK 99 Cent Store Fingerprint Evidence
Petitioner asserts that the prosecution engaged in misconduct because it “knew in
advance of presenting the forensic witnesses [who testified about the SCK 99 Cent store
fingerprint evidence] that [it] would later have to concede to the dismissing of such prejudicial
evidence provided for the jury to view.” (Dkt. 26 at 3.) However, the record does not support
As noted in the R&R, at trial, the prosecution expressed its hope that the witness to the
SCK 99 Cent store robbery, Kimmy McLeod, would eventually agree to testify. (Dkt. 25 at 12,
n. 12 (citing T. 293).) As the prosecution explained to the court the morning that Ms. McLeod
was scheduled to testify, which was Monday, December 5, 2005:
[Prosecutor]: . . . . Judge, we were anticipating calling Kimmy McCleod during the trial.
Hopefully, we were going to call her today. I met with Ms. McCleod alone because she
told me that she was afraid, on Friday, at a place where she felt comfortable meeting.
And she informed me that she did not want to testify because she was afraid and because
the defendant called her at the 99 cent store. Well, she thought the defendant called her at
the 99 cent store. She didn't know the defendant and didn't recognize his voice. So I had
to check to see whether or not the defendant had actually called her at the 99 cent store.
So we checked the defendant's phone records. We found that on December ninth of 2004,
it looks like 11: 30 in the morning, the defendant actually did call the 99 cent store. We're
pursuing this matter, judge. We're not ready to begin a hearing or make -- give the Court
further information with regard to her availability at this point. But it's something that we
will continue to keep the Court informed of.
(Dkt. 8-4 at 292-293 (emphasis added).) The first of the two fingerprint witnesses, Officer
Timothy Hanley, testified that afternoon. (Id. at 347-63.) 2 Thus, the record demonstrates that
transcript, but these portions consist of colloquy between the trial judge and attorneys on
different subjects, and are unrelated to the fingerprint witnesses.
Officer Hanley, who was the last witness to testify that day, presumably was able to do so, in
part, because of the unexpected unavailability of Ms. McLeod that morning.
at the time the prosecution introduced the fingerprint evidence, it had only recently learned of
Ms. McLeod’s reluctance to testify and still hoped to call her as a witness.
Furthermore, as found by the State appellate court and affirmed by Judge Bloom in the
R&R, the prosecution’s references in its opening statement to the SCK 99 Cent store fingerprint
evidence that was eventually struck did not violate Petitioner’s right to due process. People v.
Umoja, 70 A.D.3d 867 (2d Dep’t 2010); Dkt. 25 at 26. Indeed, given the unexpected and latedeveloping nature of the situation with respect to Ms. McLeod, it was reasonable for the trial
court to permit the prosecution to proceed with its case and offer the SCK 99 Cent store
fingerprint evidence “subject to connection,” i.e., the testimony of Ms. McLeod. (Dkt. 8-4 at
320) (trial court explaining, in response to defense’s objection to the fingerprint evidence
testimony, that the evidence would be admitted “[s]ubject to connection, and it seems to me if
they don't offer anybody to testify about a robbery, then we can delete it.”). Thus, this objection
does not provide a basis for rejecting or modifying the R&R. 3
Objection 3: The Irene’s Beauty Salon Robbery Eyewitnesses Did Not
Identify Petitioner in a Line-up on November 18, 2004
Petitioner objects to the R&R on the basis that it erroneously states that the two
eyewitnesses to the Irene’s Beauty Salon robbery, Virginia Mota and Marie Dume, testified at
trial that they identified Petitioner in two separate line-ups, one on November 18, 2004 and the
As part of this argument, Petitioner asserts that the prosecution was required, but failed, to
prove that Ms. McLeod was unavailable as a result of Petitioner’s conduct. (Id. at 2-3.)
Petitioner, however, appears to be mistakenly relying on the concept that the prosecution must
prove that a defendant “wrongfully caused” the unavailability of a witness where the prosecution
seeks to use the witness’s prior statements or testimony. See Fed.R.Evid. 804(b)(6) (permitting
admission of a statement against a party that “wrongfully caused—or acquiesced in wrongfully
causing—the declarant’s unavailability as a witness”); United States v. Aguiar, 975 F.2d 45, 47
(2d Cir.1992) (recognizing principle of forfeiture by misconduct) (citing United States v.
Mastrangelo, 693 F.2d 269 (2d Cir.1982)). That principle is inapplicable here since the
prosecution never sought to admit Ms. McLeod’s prior statements or testimony.
other on December 9, 2004, when, in fact, Petitioner was only in the December 9, 2004 line-up.
(Dkt. 26 at 4-5; R&R at 10.) In its response to the objections, Respondent agrees with Petitioner
that Mota and Dume only identified Petitioner at the line-up on December 9, 2004, and that at
the November 18, 2004 line-up, which did not include Petitioner, the witnesses identified
Petitioner’s co-defendant. (Dkt. 27.) In fact, Mota and Dume testified at trial that they identified
Petitioner at the December 9, 2004 line-up and his co-defendant at the November 18, 2004 lineup. (Dkt. 7-7 at 57-58, 107-09.)
Although the R&R incorrectly states that Mota and Duma identified Petitioner at both the
November 18, 2004 and December 9, 2004 line-ups (Dkt. 25 at 10), this misstatement is
inconsequential. The fact Mota and Duma identified Petitioner once, instead of twice, from a
line-up does not undermine their credibility or the strength of their identifications. Furthermore,
at trial, the evidence presented to the jury about the two line-ups was entirely accurate (Dkt. 7-7
at 57-58, 107-09), such that there is no basis for arguing that the jury was misled about the
strength of Mota’s and Dume’s pre-trial identifications. Indeed, Mota and Dume both identified
Petitioner in court at the trial. (Dkt. 7-7 at 50, 109.) In any event, neither Mota’s or Dume’s
line-up identifications are the subject of any claim in this habeas petition.
Objection 4: The Trial Judge Should Have Re-Opened the Wade Hearing
In his objections, Petitioner renews the claim from his habeas petition that the trial court
should have re-opened the Wade hearing after one of the witnesses to the Miriam’s Beauty Salon
robbery, Elias Encarnacion, testified at trial that he had viewed the photo array together with
another eyewitness to the robbery, Arelis Fabian. (Dkt. 26 at 5.) Petitioner specifically points to
Encarnacion’s testimony that he and Fabian were standing “right next” to each other and
“looking at the photos at the same time.” 4 (Dkt. 26 at 5 (citing T. 397).) Petitioner argues that
Encarnacion’s testimony contradicted the testimony of the administering detective, who stated
that the two witnesses were approximately 12 to 14 feet apart during the procedure, and that the
trial court should have granted his request to reopen the Wade hearing to determine whether their
identifications were tainted. (Id. at 5.) Because Petitioner made the same claim in his habeas
petition, its denial is reviewed for “clear error.” (Dkt. 25 at 13-14, 22-23 (discussing facts and
argument related to Wade hearing)); see O’Diah, 2011 WL 933846, at *1; Frankel, 2009 WL
465645, at *2; Martinez, 2000 WL 888031, at *3.
Judge Bloom correctly rejected Petitioner’s Wade hearing claim. As discussed in the
R&R, the trial court declined to re-open the Wade hearing for two reasons: (1) the record did not
clearly establish that Encarnacion’s testimony conflicted with the detective’s testimony (see Dkt.
25 at 22 (citing T. 531)) 5; and (2) the record did not provide “any detail that would allow this
Court . . . to speculate as to whether or not there was any consultation by the witnesses or
whether or not one was influenced by the other.” (T. 531-32.) Although the portion of
Encarnacion’s testimony on which Petitioner relies is different than the testimony his trial
counsel focused on in making the application to re-open the Wade hearing (compare Dkt. 8-5 at
389 with Dkt. 8-5 at 397), and more directly establishes a conflict between Encarnacion’s and
the detective’s testimony, it was still reasonable for the trial court not to re-open the Wade
hearing based on the fact there was no evidence that Encarnacion’s identification of Petitioner
Fabian did not testify at the trial. (Dkt. 25 at 23.)
In arguing the motion to re-open the Wade hearing, Petitioner’s trial counsel compared
Encarcion’s trial testimony that he and Fabian were “together” when they were showed the photo
arrays with the detective’s testimony at the Mapp/Dunaway/Wade hearing that Encarnacion and
Fabian were in the same room, but about 12 to 14 feet away from each other, when they viewed
the photo arrays. (Compare Dkt. 8-5 at 389 with Dkt. 6-4 at 247).
was influenced in any way by Fabian. (T. 531-32.) As Judge Bloom discussed in the R&R,
“the joint viewing of a photo array by more than one witness does not necessarily constitute
error.” (Dkt. 23.) Where there is no evidence to support a finding of suggestiveness, there is no
reason to re-open a Wade hearing. Borovina v. Scully, 583 F.Supp. 573, 575 (S.D.N.Y. 1984).
Indeed, as the trial court noted, Encarnacion was the first of the witnesses at the beauty salon to
make an identification from the photo array, which further undercuts the possibility that he was
improperly influenced by the other witnesses. (T. 532.) Furthermore, despite having the
opportunity to elicit evidence of suggestiveness from Encarnacion at the trial, Petitioner’s
counsel did not do so. (T. 397-400.)
Accordingly, as Judge Bloom found, in the absence of any evidence of suggestiveness
with respect to Encarnacion’s identification of Petitioner, the trial court’s decision not to re-open
the Wade hearing was not contrary to, or an unreasonable application of, clearly established
federal law. (Dkt. 25 at 23.)
Objection 5: The Prosecution Intentionally Withheld from the Defense
911 Tapes that Prove Petitioner’s “Actual innocence”
In his habeas petition, Petitioner claimed that the prosecution engaged in misconduct by
referring in their opening statement to 911 tapes that were not going to be introduced at trial
because, according to the prosecution, they were lost. (Dkt. 25 at 26.) Now, in his objections,
Petitioner asserts, for the first time, that the prosecution actually had, but withheld, the 911 tapes
because the tapes prove Petitioner’s “actual innocence.” (Dkt. at 26 at 5-6.) In support of this
new claim, Petitioner references 911 Sprint reports that were provided to him in May 2013 by
the New York City Police Department in response to Petitioner’s New York State Freedom of
Information Law (“FOIL”) request. (Id. at ECF 9. 6) Petitioner also states that he has a pending
motion, pursuant to New York C.P.L. § 440.10, before the State court, based on this claim. (Id.
at 6 n. 10.)
This objection has no impact on the R&R before the Court. First, this objection is based
on an entirely new claim, which is unexhausted. Second, it is doubtful that this new claim has
any merit, since it conflates two different types of evidence: 911 Sprint reports and 911 tapes.
Petitioner offers the 911 Sprint reports to show that the 911 tapes were not lost, as claimed by
the prosecution. The existence of 911 Sprint reports, however, does not indicate that the
corresponding tapes still exist. Furthermore, the fact that Petitioner recently obtained via a FOIL
request the 911 Sprint reports does not indicate—nor does Petitioner assert—that he was not
provided the 911 Sprint reports during discovery in his criminal case. In any event, the 911
Sprint reports that Petitioner attached to his objections provide no basis for concluding that the
911 tapes would have exonerated Petitioner, nor does Petitioner provide any explanation for his
claim that the tapes establish his innocence.
Petitioner has failed to raise any objection that warrants rejection or modification of the
R&R, which the Court does not find to be erroneous. The Court, therefore, adopts the R&R in
its entirety. The petition is dismissed. Because Petitioner has not made a substantial showing
of the denial of any constitutional right, no certificate of appealability will be issued. 28 U.S.C.
§ 2253; see Slack v. McDaniel, 529 U.S. 473 (2005). The Court also certifies, pursuant to 28
U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and
Citations to "ECF" pages refer to the page numbering of the Electronic Court Filing ("ECF")
therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444–45 (1962).
PAMELA K. CHEN
United States District Judge
Dated: May 29, 2014
Brooklyn, New York
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?