The opinion of the court was delivered by: Berman, District Judge.
On June 26, 2001, Petitioner Terry Pressley ("Pressley" or "Petitioner") filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition") challenging his February 12, 1997 conviction in Supreme Court, New York County, for rape, sodomy, and sexual abuse in violation of N.Y. Penal Law §§ 110/130.65(1), 130.50(1), 130.65(1). On February 9, 1999, the New York State Supreme Court denied Petitioner's CPL § 440.10 motion to vacate the judgment of conviction and set aside his sentence, following an evidentiary hearing. Decision and Order of Supreme Court, New York County, dated February 9, 1999. On March 25, 1999, Petitioner's conviction was affirmed by the Appellate Division, First Judicial Department. People v. Pressley, 259 A.D.2d 416, 688 N.Y.S.2d 20 (1st Dep't 1999) ("[w]e find no basis to disturb the factual determination of the court that defendant was informed of the additional charge[s] being considered by the Grand Jury [prior to testifying before the Grand Jury] . . . defendant received meaningful representation at the Grand Jury stage [and] [w]e perceive no abuse of sentencing discretion").*fn1 Leave to appeal to the New York State Court of Appeals was granted on June 28, 1999. See Order Granting Leave, dated June 28, 1999. On April 6, 2000, the Court of Appeals affirmed Petitioner's conviction and sentence. People v. Pressley, 94 N.Y.2d 935, 936-37, 708 N.Y.S.2d 32, 729 N.E.2d 689 (2000) (finding, inter alia, that the issue of proper notice as to the additional charge was "unpreserved" for review and "that defendant received meaningful representation before the Grand Jury and at trial.").
On September 10, 2002, United States Magistrate Judge Gabriel W. Gorenstein, to whom this matter had been referred, issued a thoughtful and comprehensive Report and Recommendation ("Report") recommending that Pressley's Petition for a writ of habeas corpus be denied, Report at 353, because his Fifth and Sixth Amendment claims are procedurally barred and, in any event, "Pressley has not made out a claim of ineffective assistance of counsel." Id. at 361-62. In addition, the Magistrate concluded that Pressley's sentence was not in violation of the Eighth Amendment, considering, among other things, the gravity of his crimes, his prior record, and comparable sentences. Id. at 367-68.
The Report advised that "[p]ursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report to file any written objections." Id. On December 13, 2002, Petitioner filed objections to the Report ("Petitioner's Objections"). As of this date, no objections have been filed by the Respondent. For the reasons set forth below, the Report is adopted in its entirety.
The court may adopt those portions of a Magistrate's report to which no objections have been made and which are not facially erroneous. See Fed.R.Civ.P. 72(b); see, e.g., Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991); Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). The court conducts a de novo review of those portions of a Magistrate's report to which objections have been made. See, e.g., Letizia v. Walker, 1998 WL 567840 at *1 (W.D.N.Y. Aug. 2, 1998); Pizarro, 776 F. Supp. at 817. Once objections are received, a district judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the Magistrate. See, e.g., DeLuca v. Lord, 858 F. Supp. 1330, 1345 (S.D.N.Y. 1994); Walker v. Hood, 679 F. Supp. 372, 374 (S.D.N.Y. 1988).
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), codified at 28 U.S.C. § 2254(d) (2000), "[a]n application for a writ of habeas corpus . . . shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." "[T]he federal courts `must give the state court's adjudication a high degree of deference.'" Dickens v. Filion, 2002 WL 31477701, at *7 (S.D.N.Y. Nov. 6, 2002) (quoting Yung v. Walker, 296 F.3d 129, 134 (2d Cir. 2002)).
The facts as set forth in the Report are incorporated herein by reference.
The Court has conducted a de novo review of the record herein, including, among other things, the Report, Petitioner's Objections, and applicable legal authorities, and concludes that Magistrate Gorenstein's legal and factual determinations are supported by the record and the law in all material respects. Petitioner's Objections do not provide a basis for departing from the Report's recommendations.*fn2
Fifth and Sixth Amendment Claims
The Magistrate properly concluded that Petitioner's Fifth and Sixth Amendment claims — based upon the prosecutor's presentment of additional charges to the grand jury — must be denied for several reasons.*fn3 Among other things, Magistrate Gorenstein determined that because the New York State Court of Appeals "refused to consider Pressley's claims regarding the failure to give him notice of the [additional] grand jury charges on the ground that he failed to raise them timely before the trial court," federal habeas review is barred. Report at 361; see Harris v. Reed, 489 U.S. 255, 260, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (where state court judgment relies on state grounds that are "independent of the merits of the federal claim and an adequate basis for the court's decision," federal habeas relief is barred); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997) ("federal habeas review of federal claims is barred `if a petitioner defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule . . ."') (quoting Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)).
The Magistrate concluded that "[e]ven if Pressley had properly presented [these claims his Petition] would still have to be denied on the merits," Report at 362, since (i) Petitioner has failed to rebut by "clear and convincing evidence" the statutory presumption of correctness of the state court's finding that adequate notice of the additional charges was given, id. at 362-63; see 28 U.S.C. § 2254(e)(1), and (ii) "Pressley does not cite, nor is the Court aware of any federal constitutional principle that requires the prosecution to provide notice of charges to a defendant before he or she decides whether to testify in a grand jury." Report at 362-63; see, e.g., United States v. Williams, 504 U.S. 36, 49, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992) ("certain constitutional protections afforded defendants in criminal proceedings have no application before [a grand jury]"); see also United States v. Ruiz, 894 F.2d 501, 505 (2d Cir. 1990).
Ineffective Assistance of Counsel Claim
Petitioner contends, among other things, that he received ineffective assistance at the grand jury proceedings because his former counsel, Eugene Bogan, Esq., failed to investigate the additional charges that the prosecutor planned to present before "allowing" Petitioner to testify. Petitioner's Objections at 18-19.*fn4
The Magistrate concluded that if, Petitioner informed his attorney that he planned to perjure himself as to his whereabouts on September 2, 1995, "an investigation was certainly unnecessary," Report at 365, and, alternatively, if Petitioner did not tell his attorney the truth regarding the September 2nd incident, counsel's decision to allow Petitioner to testify cannot be deemed objectively unreasonable. Id. at 365-66 ("attorneys are not obligated to distrust their clients and conduct independent investigations of their clients' statements before they may reasonably rely on their accuracy"); see also Morris v. Slappy, 461 U.S. 1, 21, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) ("decisions can best be made, and counsel's duties most effectively discharged, if the attorney and the defendant have a relationship characterized by trust and confidence").
And, because the New York Court of Appeals determined that Petitioner "received meaningful representation before the Grand Jury," People v. Pressley, 94 N.Y.2d at 936, 708 N.Y.S.2d 32, 729 N.E.2d 689, it was necessary for Petitioner to show that the court's "decision was not just incorrect, but `objectively unreasonable.'" Report at 366-67 (quoting Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 1852, 152 L.Ed.2d 914 (2002)). No such showing has been made. See Report at 366-67.
Magistrate Gorenstein concluded that Petitioner's sentence of 19 to 26 years is not disproportionate to his offense(s) so as to violate the Eighth Amendment. Report at 367-68. In reaching this conclusion, the Magistrate properly determined that: (i) Petitioner's crimes were grave, so as to "warrant a severe punishment"; (ii) "other criminals in New York state have received comparable sentences" for similar offenses; and (iii) other jurisdictions have upheld longer sentences for similar crimes. Id. at 366-68; see United States v. Bennett, 252 F.3d 559, 567 (2d Cir. 2001), cert. denied, 535 U.S. 932, 122 S.Ct. 1307, 152 L.Ed.2d 217 (2002) ("[i]n assessing the constitutionality of a sentence under the Eighth Amendment, the court must assess the gravity of the offense and the harshness of the penalty, the sentences imposed on other criminals in the same jurisdiction, and the sentences imposed for commission of the same crime in other jurisdictions"). The Magistrate also took into account Petitioner's prior record "which includes, among other convictions, a 1989 conviction for Attempted Robbery in the Second Degree . . . and a 1993 conviction for Assault in the Third Degree." Report at 368.
IV. Certificate of Appealability
Because 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; see United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997).
The Court adopts the Report  in all material respects and, for the reasons stated therein and herein, denies the Petition. Additionally, because 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. The Clerk is respectfully requested to close this case.
Terry Pressley, who is incarcerated at the Elmira Correctional Facility, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the petition should be denied.
A. Arrest, Grand Jury Proceedings and Indictment
On February 13, 1996, Pressley was arrested and charged with one count of Sodomy in the First Degree. The complaint alleged that in the early morning of December 1, 1995, Pressley forced Janice Gurley to perform oral sex on him at 350 Greenwich Street in New York City. See Felony Complaint, undated (reproduced at A. 161).*fn1 Pressley's appointed counsel, who represented him only at arraignment, served the District Attorney's office with a written notice, pursuant to New York Criminal Procedure Law (CPL) § 190.50, that Pressley wished to testify before the grand jury concerning the incident. Affirmation of Herald Price Fahringer, dated June 27, 1997 ("Fahringer Aff.") (reproduced in Answer and Exhibits, dated November 21, 2001 ("Answer"), Ex. E), at 3 (A.52). Pressley subsequently retained Eugene Bogan as defense counsel.
On Friday, February 16, 1996, the prosecution presented evidence to a grand jury about the December 1 incident as well as an additional incident, not alleged in the felony complaint, in which Gurley alleged that Pressley had raped her on September 2, 1995, in Pressley's home. Pressley was scheduled to testify before the grand jury on the afternoon of February 16, 1996. See Affirmation in Response to Defendant's Motion to Vacate Judgment, dated October 1, 1997 ("Gardner Aff.") (reproduced as Answer, Ex. H), at 1-2. However, court congestion, a snowstorm and a holiday weekend caused the proceedings to be adjourned until Tuesday, February 20, 1996. See Gardner Aff. at 2. The assistant district attorney assigned to Pressley's prosecution, Sarah A, Gardner, testified that she informed Prassloy's counsel on Friday, February 16th, of the additional charges involving the September 2nd incident. See Transcript of October 17, 1997, at 34. Bogan testified, however, that he was not told of the additional charges until Tuesday, February 20th, moments before Pressley was supposed to testify before the grand jury. See Tr. 898, 904. (A. 163, 169).
Upon learning of the new charges, Bogan stated that he consulted with Pressley to see if he still wanted to testify before the grand jury. Tr. 899 (A. 164). Later on, Bogan also talked to Pressley's parents. Pressley's mother told Bogan that the alleged incident occurred on a Saturday, that she was home the entire day, and that "Terry had gone out and bought pants or something." Tr. 900 (A. 165).
On February 20, Pressley appeared before the grand jury. Under questioning by Gardner, Pressley confirmed that he had signed a waiver of immunity and acknowledged that he was aware that his testimony could be used against him in other proceedings. Transcript of Grand Jury Testimony of Terry Pressley ("GJ Test.") at 33-34 (A.172-73). He also affirmed that he consulted an attorney before deciding whether to testify before the grand jury and he declined additional time to consult with his attorney. GJ Test. at 35-36 (A.173-74).
After conferring with a grand juror, Gardner questioned Pressley about his contacts with Detective Aponte. GJ Test at 57 (A. 196). She asked Pressley, "[a]nd you, in two and [a] half months, never went to his office to speak to him, did you?" GJ Test. at 57-58 (A. 196-97). Pressley stated that he never did and that Aponte had come to his house to speak to him on two occasions. GJ Test. at 58 (A. 197). Gardner also elicited from Pressley the fact that he had spoken on the phone with Aponte the day of the arrest and agreed to meet with him later that evening; however, Aponte stopped Pressley in front of his house that morning. GJ Test. at 58 (A. 197). Gardner later stated that "a grand juror would like to know what the detective told [Pressley]" when he contacted him on December 1st. GJ Test. at (A. 199). Pressley stated that Aponte had not contacted him until December 3rd and told Pressley he wanted to question him "in regards to someone fondling a little child." (Id.). When Gardner asked if Pressley went to speak to him then, Pressley responded that he "couldn't go that day." GJ Test. at 60-61 (A. ...