United States District Court, S.D. New York
September 6, 2005.
SHAWN BROWN, Petitioner,
MR. FILION, Respondent.
The opinion of the court was delivered by: DENISE COTE, District Judge
MEMORANDUM OPINION & ORDER
Pro se petitioner Shawn Brown ("Brown") has petitioned for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Section
2254"). Brown seeks to vacate his December 3, 1998 conviction for
Robbery in the Third Degree and Grand Larceny in the Fourth
Degree. Because he had at least two prior felonies, on January
12, 1999 Brown was sentenced as a persistent felony offender to
two concurrent terms of 15 years to life in state prison. Brown appealed his conviction to the Appellate Division, First
Department, in April 2000; the Appellate Division affirmed his
conviction and sentence on May 24, 2001. People v. Brown,
283 A.D.2d 312 (1st Dep't 2001). The New York Court of Appeals denied
Brown's request for leave to appeal on July 26. People v.
Brown, 96 N.Y.2d 899 (2001).
In May 2002, Brown filed a pro se motion to vacate his
conviction pursuant to N.Y.C.P.L.R. § 440.10 and a pro se
application for a writ of error coram nobis claiming ineffective
assistance of appellate counsel. The New York County Supreme
Court denied Brown's § 440.10 motion in an unpublished decision
on July 10, 2002, and leave to appeal to the Appellate Division
was denied on February 25, 2003. The Appellate Division summarily
denied Brown's coram nobis petition on May 29, 2003.
Brown timely filed this Section 2254 petition on June 27, 2003
wherein he raises nine claims: the four claims he raised on
direct appeal, the four claims he raised in his § 440.10 motion,
and the single claim he raised in his coram nobis petition. On
August 27, 2003, this matter was referred to Magistrate Judge
Gabriel W. Gorenstein for a Report and Recommendation. Magistrate
Judge Gorenstein issued a Report and Recommendation (the
"Report") on June 13, 2005, recommending that Brown's petition be
denied. Following the Report's issuance, Brown had ten days from
receipt of the Report to serve and file any written objections.
See 28 U.S.C. § 636(b) (1); Rule 8(b), Rules Governing Section
2254 Cases in the United States District Courts. On July 13, this Court received an undated letter from
Brown wherein Brown states that he received the Report and
objects to it, but is unable to file proper objections due to the
loss of "legal work, legal paper, [and] trial transcripts" while
being transferred between housing units in prison. Brown's letter
was postmarked July 11. An Order dated July 15 extended Brown's
deadline to file objections to August 12. On July 25, this Court
received an undated submission from Brown that reiterates the
arguments made in his petition, but that does not object to, or
indeed, even mention, the Report.
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. § 636(b) (1) (C). The court shall make a de novo
determination of the portions of the report to which petitioner
objects. United States v. Male Juvenile, 121 F.3d 34, 38 (2d
Cir. 1997). "A district court may adopt those portions of the
Report to which no objections have been made and which are not
facially erroneous." Wilds v. United Parcel Serv., Inc.,
262 F. Supp. 2d 163, 170 (S.D.N.Y. 2003) (citation omitted). An
objection which is "devoid of any reference to specific findings
or recommendations" and is "unsupported by legal authority" does
not preserve the claim. Mario v. P & C Foods, Inc.,
313 F.3d 758, 766 (2d Cir. 2002).
Brown submitted documents after the Report's issuance that
merely restate the arguments made in his petition he did not
object to any portion of the Report. Review of the Report indicates that it is soundly reasoned and completely addresses
The Report is therefore adopted and the petition for a writ of
habeas corpus is denied. In addition, I decline to issue a
certificate of appealability. The petitioner has not made a
substantial showing of a denial of a federal right, and appellate
review is therefore not warranted. Tankleff v. Senkowski,
135 F.3d 235, 241 (2d Cir. 1998). I also find pursuant to Title 28,
United States Code, Section 1915(a) (3), that any appeal from
this order would not be taken in good faith. Coppedge v. United
States, 369 U.S. 438, 445 (1962). The Clerk of Court shall
dismiss this petition.
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