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August 16, 2004.

DANIEL SENKOWSKI, Superintendent, Clinton Correctional Facility, Respondent.

The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge


On December 17, 2003, Magistrate Judge Kevin Nathaniel Fox issued a Report and Recommendation ("Report") recommending that the petition of Rafael Agosto ("Petitioner") for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, filed on August 18, 1999, be denied. Respondent filed an objection to the Report on December 26, 2003. The Court granted Petitioner, now pro se, an extension until March 19, 2004, to file objections (in response to a request from his former attorney who subsequently withdrew from the case). Petitioner has not filed objections to the December 17, 2003 Report and Recommendation. Respondent submitted a timely objection to the Report.

In reviewing the 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 Supp. 2004). 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 face of 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, 424-425 (S.D.N.Y. 2001) (court may accept portions of the report to which no objections have been made if it is "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). If the party makes only conclusory or general objections, or simply reiterates the original arguments, however, the Court will review the Report strictly for clear error. See United States ex rel. Casa Redimix Concrete Corp. v. Luvin Construction Corp., 00 Civ. 7552 (HB), 2002 WL 31886040, at *1 (S.D.N.Y. Dec. 27, 2002); Camardo v. General Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992); Chabrier v. Leonardo, No. 90 Civ. 0173 (PKL), 1991 WL 44838, at *1 (S.D.N.Y. Mar. 26, 1991); Schoolfield v. Dep't of Corr., No. 91 Civ. 1691 (JL), 1994 WL 119740, at * 2 (S.D.N.Y. Apr. 6, 1994). Objections to a Report and Recommendation "are to be specific and are to address only those portions of the proposed findings to which the party objects." Camardo, 806 F. Supp. at 381-382.

  The Court has considered thoroughly the Respondent's objections to Judge Fox's Report. Although Judge Fox ultimately denied Petitioner's application for habeas corpus relief finding Petitioner's arguments meritless, Respondent contends that a state procedural bar should have precluded any federal habeas corpus review. In light of Respondent's objections, the Court reviews the Report and Recommendation de novo.

  This Court finds that the Report by Judge Fox, who determined that the habeas petition was not procedurally barred yet was meritless, was an appropriate determination. The trial court's denial of the Petitioner's motion to set aside the verdict without holding an evidentiary hearing was not sufficient to clearly impose a procedural bar. According to the Second Circuit, a state court judgment is procedurally barred from federal review only if it is based on a rule "firmly established and regularly followed" in that state. Cotto v. Herbert, 331 F.3d 217, 239-241 (2d Cir. 2003) (internal citation omitted). Judge Fox concluded that the trial court's denial of an evidentiary hearing following a motion to set aside a verdict based on jury bias is not the uniform practice in the state of New York when conflicting factual allegations exist. See People v. Tokarski, 578 N.Y.S.2d 751 (App. Div. 4th Dep't 1991) (holding that the trial court must conduct a hearing on a motion to set aside a verdict for juror misconduct when conflicting factual allegations exist); People v. Paulick, 615 N.Y.S.2d 159 (App. Div. 4th Dep't 1994) (finding that conflicting factual allegations warrant a hearing rather than sole reliance on counsel's affidavits).

  Respondent asserts that NYCPL § 330.40(2) provides an independent and adequate state ground for precluding federal habeas corpus review. Relying on the Second Circuit's recent decision in Cotto, Respondent focuses primarily on the three criteria outlined in the opinion to assist the court in determining the adequacy of a procedural bar in precluding federal habeas review. Cotto, 331 F.3d at 240. Though the court in Cotto does partly rely on three considerations to determine whether a procedural bar exists, it does not exclusively decide the case based on these factors and instead holds that the state court judgment must be based on a "firmly established and regularly followed" rule. Id. It is this prerequisite that Judge Fox finds lacking to preclude federal habeas review. Respondent's analysis of Smart v. Scully, 787 F.2d 816 (2d Cir. 1986), is also misguided. In a case similar to the instant matter, the court in Smart indicates that a petitioner may not be precluded from federal habeas corpus review solely based on insufficient sworn allegations. The Second Circuit held that, although the Petitioner failed to comply completely with the requisite procedure, the pleading was sufficient to notify the Court of his constitutional claim. Id. at 820. Since the state court had knowledge of the alleged violation, the state court's denial of the motion was found not to be an adequate and independent state ground for preclusion of federal habeas review. Id. Respondent here claims that Petitioner's allegations were not sufficient to notify the state trial court of the alleged violations. (Resp. Mem. of Law, at 2-3) (citing Taus v. Senkowski, 02 civ. 4492 (JBW), 2003 WL 22838764 (E.D.N.Y. Nov. 26, 2003) (holding that a procedural bar precluded federal habeas review of the trial court's decision to set aside the jury verdict without a hearing because the motion did not contain sufficient affidavits from someone with personal knowledge of the facts alleged); People v. Bradley, 685 N.Y.S.2d 357 (App. Div. 4th Dep't 1999) (finding that federal habeas review was precluded because Petitioner's motion was only supported by hearsay)). However, as noted by Judge Fox below, Petitioner's sworn allegations were sufficient to comply with NYCPL § 330.40 requirements and put the state court on notice of Petitioner's constitutional claims. Furthermore, it is within this Court's discretion to grant habeas review in situations where the procedural default is not sufficient to automatically preclude federal review. Accordingly, this Court finds that trial court's denial of the Petitioner's motion was not procedurally barred from federal habeas corpus review.

  Because the state court did not apply a rule that was firmly established and regularly followed, there was no independent and adequate state ground for denying federal habeas review. Therefore, it was not improper for Judge Fox to review the merits of the petition. In any event, Judge Fox found the petition to be meritless, and Respondent does not object to such finding.

  The Court finds no clear error in Judge Fox's review of the merits. Based on the Court's de novo review as to Respondent's objections, as well as review for clear error as to the merits of the petition, the Court adopts the Report and Recommendation in its entirety. Accordingly, the petition for writ of habeas corpus is denied.*fn1

  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 appealabilty). 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 Fox's Report follows.




  Before the Court is Rafael Agosto's ("Agosto") petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254. Petitioner alleges that his confinement by New York state is unlawful because: (1) the trial court's failure to hold an evidentiary hearing before ruling on his motion to set aside the verdict on the ground of juror bias violated his Fourteenth Amendment right to due process and his Sixth Amendment right to a fair trial; and (2) the New York state statute governing a motion to set aside a verdict prior to sentencing is unconstitutional because it provides no remedy for an allegation of juror bias and, thus, deprives criminal defendants like the petitioner of their right to due process in violation of the Fourteenth Amendment.

  The respondent opposes the petitioner's application for habeas corpus relief on the ground that the petitioner's claim concerning the denial of his motion to set aside the verdict is barred from habeas corpus review because the trial court's decision in this matter rested on an adequate and independent state law ground. Alternatively, respondent contends, the petitioner's claims are meritless.

  For the reasons set forth below, I recommend that the petition be denied.


  On the evening of June 4, 1993, a shooting incident occurred involving Agosto and Abraham Smith ("Smith"). The incident took place in the courtyard of the Castle Hill housing project in the Bronx and resulted in the death of Smith and a seven-year-old child, Joseph Washington ("Washington"), who was playing in the courtyard at the time, and who was struck by a passing bullet. A second child, Edwin Stuart, Jr. ("Edwin"), who also was playing in the courtyard, sustained a bullet wound to his spine and was permanently paralyzed as a result.

  At the time of the shooting, Edwin resided with his father, Edwin Stuart, Sr., and his mother, Donna Goodall ("Goodall"), at 2225 Lacombe Avenue, Bronx, New York, and petitioner resided at 535 Havermeyer Avenue, Bronx, New York. The courtyard in which the shooting incident took place is between the building located at 2225 Lacombe Avenue and the building located at 535 Havermeyer Avenue.

  The evidence adduced at trial established that on June 4, 1993, shortly before seven o'clock in the evening, Agosto emerged from behind the building at 535 Havermeyer Avenue, displayed a gun and opened fire at Smith. In addition, the evidence showed that Smith, although he returned gunshots, fell to the ground mortally wounded. Furthermore, the evidence established that petitioner, in firing at Smith, killed Washington and seriously wounded Edwin.

  By an indictment filed on June 24, 1993, a Bronx County grand jury charged petitioner with four counts of murder in the second degree (N.Y. Penal Law § 125.25[1], [2]), attempted murder in the second degree (N.Y. Penal Law § 110.00 & 125.25[2]), two counts of assault in the first degree (N.Y. Penal Law § 120.10[1], [3]), criminal possession of a weapon in the second degree (N.Y. Penal Law § 265.03), criminal possession of a weapon in the third degree (N.Y. Penal Law § 265.02[4]), and reckless endangerment in the first degree (N.Y. Penal Law § 120.25). The case proceeded to a trial by jury in New York State Supreme Court, Bronx County. The jury found Agosto guilty of two counts of murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second degree.

  After his conviction and prior to sentencing, petitioner learned from Gerais Wright ("Wright"), a witness who had testified for the defense, that one of the jurors, Jesse Wilson ("Wilson"), was familiar to him. Wright is a former resident of 535 Havermeyer Avenue in the Castle Hill housing project. After he testified at petitioner's trial, Wright realized that he recognized Wilson because Wilson was the uncle of a young woman, Josephine Wilson ("Josephine"), whom Wright had dated several years earlier. At the time that Wright knew her, Josephine resided with her mother, Antoinette Wilson ("Antoinette"), ...

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