The opinion of the court was delivered by: Batts, District Judge.
ADOPTION OF REPORT AND RECOMMENDATION
On June 21, 2000, Magistrate Judge Theodore H. Katz issued a
Report and Recommendation recommending that Petitioner's habeas
corpus petition be denied. See 28 U.S.C. § 636(b)(1)(C); Local
Civil Rule 72.1(d). Both Petitioner and Respondent have filed
objections to the Report and Recommendation.
28 U.S.C. § 636(b)(1)(c) requires the Court to make a "de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is made."
After conducting a de novo review, the Court may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the Magistrate. 28 U.S.C. § 636(b)(1)(C);
see also Local Civil Rule 72.1(d).
Petitioner contests his conviction for depraved indifference
murder. The facts in this matter are sufficiently set forth in
Judge Katz's Report and Recommendation and will not be reiterated
here. Judge Katz assessed Petitioner's claims that: (1) his plea
of guilty was not knowing and voluntary because he received
ineffective assistance of counsel and because the trial court
failed to conduct a full inquiry with respect to his plea; and
(2) he was denied the effective assistance of counsel because
counsel failed to inform him of the elements of second degree
murder and manslaughter, failed to inform him of the possibility
of an affirmative defense, failed to inform him of the evidence
against him if he chose to proceed to trial, and failed to inform
him of the consequences of a guilty plea. Respondent moved to
dismiss the action.
Judge Katz concluded, and this Court concurs, that Petitioner's
claims fail on the merits and are procedurally barred.
Petitioner objects to Judge Katz's finding that Petitioner
failed to exhaust all of his claims.*fn1 Further, Petitioner
objects to Judge Katz's finding that both his claim of trial
court failure to fully inquire prior to the plea and his claims
of ineffective assistance of counsel are without merit.
Respondent objects to the Report and Recommendation conclusion
that Petitioner's claim that the trial court's failure to fully
inquire prior to the plea was not exhausted.
As Judge Katz concluded, the trial court clearly reached the
merits of Petitioner's claim that the trial court failed inquire
fully prior to his plea, when considering Petitioner's § 440.10
motion. Further, by mentioning the claim only within a laundry
list of claims while failing to argue the issue along with the
other issues argued
on appeal, Petitioner has not exhausted the claim. See Jordan v.
Lefevre, 206 F.3d 196, 198 (2d Cir. 2000) (finding no exhaustion
on claims where Petitioner vigorously argued other claims and
made only passing reference to disputed claim); Grey v. Hoke,
933 F.2d 117, 120 (2d Cir. 1991) (attaching appellate brief
insufficient notice where leave letter argued only one of three
claims). Thus, this claim was not exhausted.
However, the claim is procedurally forfeited pursuant to CPL §
460.15 (permitting only one application to appeal denial of a CPL
§ 440.10 motion). Accordingly, the Court adopts Judge Katz's
recommendation, finding that the plea allocution claim was not
exhausted but is procedurally forfeited.
Judge Katz also reached the merits of Petitioner's claims.
Petitioner argues in his objection that the trial court failed
to accept a plea to the proper count of the Indictment.
Petitioner is correct that the trial court misspoke when stating
that Petitioner was entering a plea to Count One (intentional
second degree murder); when, in fact, he entered a plea to Count
Two (depraved indifference second degree murder).
However, prior to accepting the plea, the Court and counsel
referred directly to the statute to clarify that Petitioner was
in fact entering a plea for violation of New York Penal Law
125.25 Subsection 2, depraved indifference. See Plea Transcript
at 3:17-18. Under the statute, murder committed "under
circumstances evincing a depraved indifference to human life"
elevates reckless homicide to second-degree murder. See People
v. Swartz, 130 A.D.2d 288, 520 N.Y.S.2d 224 (3d Dept. 1987).
Thus, the trial court's misstatement was harmless and is not
grounds for habeas relief.
2. Ineffective Assistance of Counsel
For the reasons stated in Judge Katz's Report and
Recommendation, and after de novo review, the Court finds
Plaintiff's ineffective assistance of counsel claims to be
Accordingly, Petitioner's habeas petition is denied. As
Petitioner has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability will not
issue. 28 U.S.C. § 2253, as amended by the Antiterrorism and
Effective Death Penalty Act of 1996. See also Rodriquez v.
Scully, 905 F.2d 24 (2d Cir. 1990) (per curiam) (discussing
certificate of probable cause under standard prior to amendment
of 2253); Alexander v. Harris, 595 F.2d 87, 90-91 (2d Cir.
1979). The Court certifies pursuant to 28 U.S.C. § 1915(a) that
any appeal from this order would not be taken in good faith. See
Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d
Accordingly, after conducting an independent de novo review
of the Report and Recommendation, and ...