The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
On April 30, 2002, Magistrate Judge Gabriel W. Gorenstein issued a
Report and Recommendation ("Report") recommending that the petition of
Clarence Morales ("Petitioner") for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 be denied. Petitioner submitted timely objections
to the Report. Those objections, however, consist of either conclusory
rehashing of issues that have already been decided or frivolous
arguments.*fn1 Respondent objects to the Report to the extent it
concluded (1) that the petition is not time barred and (2) that a claim
with respect to delay in the litigation of an appeal of an order denying
a state collateral attack is cognizable on federal habeas review.
In reviewing a report and recommendation, the Court "may accept,
reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge." 28 U.S.C.A. § 636(b)(1)(C) (West
2002). To accept the report and recommendation of a magistrate judge to
which no timely objection has been made, a district court `"need only
satisfy itself that there is no clear error on the record.'" Johnson
v. Reno, 143 F. Supp.2d 389, 391 (S.D.N.Y. 2001) (citation
omitted). See also Bryant v. New York State Dep't of Corr.
Serv.. 146 F. Supp.2d 422, 424-25 (S.D.N.Y. 2001) (court may accept
those portions of report to which no written objection has been made, so
long as they are "not facially erroneous"). The Court is required to make
a de novo determination as to the aspects of the Report to
which objections are made. United States v. Male Juvenile,
121 F.3d 34, 38 (2d Cir. 1997). However, when a party makes only conclusory
or general objections, or simply reiterates his original arguments, the
Court reviews the Report and Recommendation only for clear error.
See United States ex rel. Casa Redimix Concrete Corp. v. Luvin
Construction Corp., No. 00 CV 7552, 2002 US Dist LEXIS 24700, at
*4-5 (S.D.N.Y. Dec. 26, 2002) (objections that are mere attempts to
rehash issues that have already been decided should be reviewed for clear
error); Camardo v. General Motors Hourly Rate Employees
Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (court need not
consider objections which are frivolous, conclusory or general and
constitute a rehashing of the same arguments and positions taken in
Judge Gorenstein applied the statutory tolling provisions of the Anti
and Effective Death Penalty Act of 1996 ("AEDPA") and found the
instant petition timely.*fn2 Respondent objects to one aspect of Judge
Gorenstein's timeliness calculation: that a state habeas corpus petition
filed by Petitioner in 1998 qualifies as a "properly filed" application
for State post conviction review for the purposes of
28 U.S.C. § 2244(d)(2). Accordingly, the Court has reviewed de novo
the effect of the 1998 state habeas petition on the timeliness of the
Respondent argues that Petitioner's 1998 state habeas petition cannot
constitute a "properly filed" application for post conviction
relief because, under New York law, the writ of habeas corpus may not be
used to review issues that could have been raised by direct appeal or by
collateral attack in the court of conviction. People ex rel. Pearson
v. Garvin. 622 N.Y.S.2d 464 (2d Dep't 1995). In Bennet v.
Artuz, 199 F.3d 116 (2d Cir. 1999), the Second Circuit rejected a
similar argument with respect to certain claims that had been raised in a
motion to vacate a judgment of conviction pursuant to New York Criminal
Procedure Law ("CPL") section 440.10. The respondent in Bennet
argued that the section 440.10 motion at issue was not a properly filed
application for post conviction relief for the purposes of
28 U.S.C. § 2244 because the claims raised in the motion either were
already decided, or should have been raised, on direct review.
Id. at 121. The Second Circuit disagreed, finding that the
question of whether a post conviction application is procedurally
barred under a state law such as CPL 440.10 is independent from a federal
court's obligation to determine whether the application is "properly
filed." Id. at 122. The latter determination turns on whether
an application for post conviction
relief is "recognized as such under governing state procedures."
Id. at 123. The Supreme Court affirmed the decision, explaining
that an application is "properly filed" when its delivery and acceptance
are in compliance with the applicable laws prescribing "the form of the
document, the time limits upon its delivery, the court and office in
which it must be lodged, and the requisite filing fee." Artuz v.
Bennet, 531 U.S. 4, 8 (2000). The Supreme Court found that the
procedural bar at issue, that is, CPL 440.10(2)(a) and (c),*fn3 sets
forth conditions to obtaining relief, not conditions to filing.
Id. at 11.
The limitation on the scope of habeas relief under New York law that is
invoked by Respondent here, like the CPL provisions at issue in
Bennet, does not preclude the filing of a state habeas
petition.*fn4 Indeed, the issue Respondent raises, that habeas relief is
unavailable for claims that could have been raised on direct review or in
a CPL 440.10 motion, is substantially identical to the procedural bar
addressed by the Supreme Court in Artuz v. Bennet. Respondent
points out that Petitioner's 1998 petition was denied as procedurally
barred, and argues that that determination should control the Court's
decision here. Review of the state court's decision on
the 1998 petition, however, only serves to clarify that the
petition was denied because of failure to satisfy what the Artuz v.
Bennet Court characterized as conditions to obtaining relief, and
not because of any deficiencies in the form or timing of the petition.
See Decision & Order, annexed to Resp.'s Am. Mem. of Law as
Ex. J ("The remedy of habeas corpus does not lie under the
circumstances presented [that is, where claims could have been or
were raised and decided on direct review or by CPL 440.10 motion]."
(emphasis added)). Accordingly, the Court finds that the 1998 state
habeas petition was a "properly filed" application for post
conviction relief for the purposes of 28 U.S.C. § 2244(d)(2).*fn5
In light of this finding, and because the Court adopts the other aspects
of the timeliness calculation in the Report as not clearly erroneous, the
Court finds that the instant petition is timely.
The Court has reviewed thoroughly the remainder of Judge Gorenstein's
well reasoned Report and finds no clear error on the face of the
record. The Court adopts the Report for the reasons stated therein,
except to the extent the Report concludes that delay in the decision of
an appeal of the denial of a CPL 440.10 motion is cognizable on federal
habeas review.*fn6 Accordingly, the petition for writ of habeas corpus
Petitioner may not appeal this order unless "a circuit justice or judge
issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1)
(West 2002). A certificate will be granted "if the applicant has made a
substantial showing of the denial of a constitutional right." 28 U.S.C.A.
§ 2253(c)(2) (West Supp. 2003); see generally United States v.
Perez, 129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard
for issuing a certificate of appealability). The Court finds that
Petitioner will not be able to sustain this burden. Thus, the Court
declines to issue a certificate of appealability. The Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith. See Coppedge v. United
States, 369 U.S. 438, 444 (1962).
Magistrate Judge Gorenstein's Report follows.
Clarence (a/k/a Justice) Morales, an inmate at the Bare Hill
Correctional Facility, petitions pro se for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. For the following reasons, the
petition should be denied.
A. Arrest. Indictment and Plea
Morales was arrested on February 2, 1994, and subsequently indicted for
one count of Burglary in the Second Degree. See Amended
Memorandum of Law and Supplemental Exhibits
In Support of Answer Opposing Petition for a Writ of Habeas Corpus
("Am. Mem."), dated December 2001, at 2; Memorandum Of Law In Support Of
Rebuttal To Opposition for A Writ of Ha[b]eas Corpus ("Morales Mem."),
dated August 4, 2001, at 2. Morales was accused of taking a compact disc
player from an apartment at Columbia University. On June 6, 1994, New
York Supreme Court Justice Herbert I. Altman dismissed the indictment
following the prosecution's concession that petitioner had not been
afforded his right under New York Criminal Procedure Law ("CPL") §
190.50(5)(a) to testify before the grand jury. See Decision on
Morales' Motion to Dismiss Indictment 851/94, reproduced in the Answer,
dated July 5, 2001, at Ex. I. At the same time, the State was granted
leave to re present the case to another grand jury. Id.
On September 16, 1994, the grand jury again indicted Morales on the
charge of Burglary in the Second Degree (Indictment Number 8968/94).
After waiting for trial for more than a year, Morales moved to dismiss
the indictment alleging a denial of his right to a speedy trial under CPL
§ 30.30. See Brief for Defendant Appellant to the
Supreme Court of New York, Appellate Division: First Department ("Morales
App. Brief) (reproduced as Answer, Ex. D) at 3. On February 6, 1995,
Justice Altman denied Morales' motion to dismiss the indictment.
See Brief for Respondent to the New York Supreme Court
Appellate Division: First Department ("Respondent App. Brief) (reproduced
as Answer, Ex. F) at 2; Morales App. Brief at 3. On the morning of
February 7, 1995, the People offered Morales the opportunity to plead
guilty to Attempted Burglary in the Second Degree with a sentence of six
years to life, stating that the offer would be withdrawn as soon as the
jury was sworn, which was expected to be the same day. Morales App. Brief
at 3. Later that day Morales agreed to the People's offer and pleaded
guilty to Attempted Burglary in the Second Degree
before Justice Alien Alpert. Id. at 3-4; Respondent App.
Brief at 2.
On April 3, 1995, just before his sentencing date, Morales filed a
motion requesting that the court permit him to withdraw his guilty plea
on the ground that his counsel had erroneously informed him that his
section 30.30 speedy trial motion would survive the plea and could be
raised on appeal. Morales App. Brief at 4; Respondent App. Brief at 5-6.
Under these circumstances, Morales argued, the plea was not knowing and
voluntary. Morales App. Brief at 4. On April 11, 1995, Justice Alpert
denied Morales' § 30.30 motion and sentenced him, according to the
terms of the plea agreement, to six years to life. Morales App. Brief at
4; Respondent App. Brief at 2.
B. Morales' First Collateral Motion and Direct Appeal
By notice of motion dated October 25, 1995, Morales moved pro
se to vacate his judgment of conviction pursuant to CPL §
440.10. See Notice of Motion, reproduced in Answer, Ex. A. In
his supporting affidavit, he argued that his judgment should be vacated
because his plea had been coerced, he had been denied effective
assistance of counsel, and the grand jury proceedings were defective.
See Affidavit in Support of Motion to Vacate Judgment
Pursuant to CPL § 440.10, reproduced in Answer, Ex. A. On June 14,
1996, Justice Alpert ruled that "[b]ecause the judgment is pending appeal
and sufficient facts appear on the record to permit adequate review on
appeal of all of the issues raised by [Morales], [his] motion must be
denied." See Decision, reproduced as the Answer, Ex. C at 1-2.
Justice Alpert also denied Morales' ineffective assistance of counsel and
coercion claims on the merits. Id. at 2. It appears that
Morales never sought leave to appeal the denial of this motion.
In his direct appeal of his judgment of conviction to the Appellate
new appellate counsel argued that because trial counsel erroneously
informed Morales that his speedy trial claim would survive his plea,
Morales was denied his Sixth Amendment right to effective assistance of
counsel and the plea was not knowing and voluntary. Morales App. Brief at
5-6. Morales also submitted a pro se supplemental brief in
which he made the additional arguments that the superseding indictment
should have been dismissed on speedy trial grounds and the grand jury
proceedings were defective, denying him due process. See
Supplemental Brief, dated December 29, 1996, reproduced as Answer, Ex. E.
On May 20, 1997, the Appellate Division affirmed Morales' conviction.
People v. Morales. 239 A.D.2d 254 (1st Dep't 1997). The court
ruled that Morales knowingly and voluntarily pled guilty and that "there
is nothing in the record of the plea proceedings that indicates that
defendant was denied effective assistance of counsel because defense
counsel induced defendant to plead guilty by providing him with erroneous
advice." Id. at 254. In addition, the court ruled that Morales'
claim of defective grand jury proceedings was unpreserved and that by
pleading guilty he waived any challenge to the grand jury proceedings.
Id. In the alternative, the court rejected this claim on the
merits, noting that the People had called witnesses who had been at the
scene of the arrest, Morales was informed of his right to testify before
the grand jury, and he did in fact testify before the second grand jury.
Id. Finally, the court ruled that Morales' claim that his
waiver of immunity before testifying before the ...