JOHN T. ELFVIN, Senior United States District Judge
Petitioner Jones, currently incarcerated in a New York State prison and serving an indeterminate term of imprisonment of twenty years to life following a conviction in New York State Supreme Court, Erie County, filed a petition for a writ of habeas corpus October 30, 1998 pursuant to 28 U.S.C. § 2254 on the following grounds: (1) that the indictment against him was the result of an improperly granted resubmission motion for presentation by the district attorney to a second grand jury; (2) that, as a result of such fraud, the grand jury and the trial and appellate courts did not have subject matter jurisdiction over his case; (3) that the alleged fraudulent indictment violated his constitutional rights under the Fourth, Fifth and Fourteenth Amendments; (4) that he had been denied effective assistance of counsel; (5) that he had been denied due process based on alleged prosecutorial misconduct; (6) that the verdict that convicted him had been against the weight of the evidence; (7) that the state court's ruling with regard to a pre-trial Sandoval hearing was erroneous; and (8) that the trial court erroneously permitted petitioner to conduct a pro se examination of a witness. Pursuant to 28 U.S.C. § 636(b)(1)(B), the petition was referred to Magistrate Judge Leslie G. Foschio for an evaluation of the merits of the factual and legal issues raised by petitioner and a recommended disposition. Judge Foschio filed on July 26, 2002 a Report and Recommendation ("RR") in which he recommended that the petition be denied in its entirety. Jones timely filed his objections to the RR and oral argument was heard on this matter by the undersigned September 27, 2002.
Petitioner filed the instant petition October 30, 1998 in the Southern District of New York; however such was transferred to this Court pursuant to a February 22, 1999 Transfer Order by U.S. District Judge Thomas P. Griesa.
People v. Sandoval, 34 N.Y.2d 371 (1974).
Jones' first four causes of action were alleged in his original October 30, 1998 petition; his last four causes of action were added as part of an August 9, 1999 Amended Petition. See Am. Pet., pp. 4-8.
While familiarity with the facts of this case is presumed, relevant facts will be discussed as needed. Jones shot and killed a man named Allen Cleague on November 2, 1980. Jones has never disputed that he shot and killed Cleague, but rather he has always maintained that Cleague displayed a weapon and that Jones shot Cleague in self-defense. Tr. 947-950. Following the shooting and a subsequent investigation, the Erie County District Attorney presented the case to a grand jury. The grand jury returned a no bill on February 10, 1981.
A more detailed recitation of the facts and procedural history in this case is set out in Magistrate Judge Foschio's R R.
"Tr." citations are references to page numbers of the state court trial transcript.
Pertinent to such decision was the fact that two witnesses, Gloria Jackson and Melinda Gay Waker, testified before the Grand Jury that Jones shot Cleague in self-defense after Cleague had threatened him with a pistol. See Tr. 252-257, 371.
Thereafter, the Erie County District Attorney filed a Motion for Resubmission to the Grand Jury pursuant to N.Y. Crim. Proc. Law § 190.75(3) (Mckinney 1993) in New York County Court, County of Erie. Such motion was granted June 17, 1983. Jones was indicted August 23, 1983 for second degree murder and criminal possession of a weapon in the second degree. Following an eight-day jury trial, Jones was convicted of second degree murder on December 19, 1984. Jones subsequently filed several unsuccessful appeals and petitions for habeas corpus relief with various New York State courts. His present petition for a writ of habeas corpus is now before this Court for disposition.
The Resubmission Motion was based primarily on the fact that both Jackson and Waker had recanted their previous Grand Jury testimony with respect to Jones' self-defense claim. See People's Resubmission Mot., pp. 2-4.
The second count of criminal possession of a weapon was dismissed. Tr. 1275-1277.
See e.g. People v. Jones, 548 N.Y.S.2d 824 (App.Div. 4th Dep't. 1989); People v. Jones, 553 N.Y.S.2d 300 (Table) (1990).
In recommending that Jones' petition be denied, Judge Foschio specifically found that there was no basis to grant habeas corpus relief based on Jones' first four causes of action because his challenge to the District Attorney's resubmission motion did not give rise to any constitutional violation. See RR, pp. 17-21. In addition, Judge Foschio concluded that Jones had failed to demonstrate prosecutorial misconduct or that the verdict which resulted in his conviction was against the weight of the evidence. Id. at 21-30. Lastly, Judge Foschio found no merit to Jones' seventh and eighth causes of action because the Sandoval ruling in the state court was not so prejudicial as to constitute "fundamental unfairness" and because the state court's decision to allow Jones to examine a witness pro se resulted in no prejudice to Jones. Id. at 30-34.
Pursuant to 28 U.S.C. § 636(b)(1), this Court has conducted a de novo review of those portions of the RR to which Jones objects and finds no merit to any such objection. Petitioner's objections consist of nothing more than his attempt to reargue his first four causes of action contained within his habeas corpus petition. In particular, Jones argues that the entire RR is totally irrelevant because Judge Foschio "leapfrogged" over his jurisdictional argument — viz., that the District Attorney's resubmission motion had been improperly granted and therefore precluded the Grand Jury from having jurisdiction over him. See Pet'r's Obj. to the RR, p. 13. Such an argument is without merit because, as Judge Foschio exhaustively explained in his RR, petitioner's allegation that the state grand jury proceeding was erroneous or improper cannot provide the basis for federal habeas corpus relief in this case because any defect in the grand jury was cured by Jones' conviction before the petit jury. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989); see also Velez v. N.Y., 941 F. Supp. 300, 316 (E.D.N.Y. 1996); Barnes v. Giambruno, 2002 WL 850020, *7 (S.D.N.Y. 2002). Petitioner has simply failed to direct this Court to any cognizable constitutional violations that may have occurred during the state court proceedings.
That is of course assuming, arguendo, that there was some kind of fraud or error connected with the second grand jury. In that regard, Jones has not presented sufficient evidence to convince this Court that the grand jury proceeding was improper or erroneous in any way.
No further discussion is needed regarding petitioner's fifth, sixth, seventh and eighth causes of action as they are sufficiently addressed in Judge Foschio's RR and are approved.
Accordingly, it is hereby ORDERED that petitioner's Objections are overruled, that Judge Foschio's July 16, 2002 RR is adopted in its entirety, that petitioner's motion for summary judgment is denied, that the October 30, 1998 petition for a writ of habeas corpus and the August 9, 1999 amended petition for a writ of habeas corpus are dismissed in their entirety, that this case shall be closed and that there is no substantial question presented for appeal and therefore a certificate of appealability will not be issued.
Petitioner filed a motion for summary judgment December 14, 2001 with respect to his petition for a writ of habeas corpus. Such motion will be denied as moot inasmuch as the arguments contained therein are identical to the arguments contained within Jones' petition for habeas corpus.