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MORALES v. SABOURIN

March 5, 2004.

CLARENCE MORALES, A.K.A. JUSTICE MORALES, Plaintiff, -v- JOHN SABOURIN, Superintendent, Respondent


The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge

ORDER

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. Page 2

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 original pleadings).

  Judge Gorenstein applied the statutory tolling provisions of the Anti — Terrorism Page 3 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 petition.

  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 Page 4 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 Page 5 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 is denied. Page 6 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.

  SO ORDERED.

  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.

 I. FACTUAL BACKGROUND

  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 Page 7 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 Page 8 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 Division, Morales' Page 9 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 ...


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