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September 12, 2005.

RAFAEL MOJICA, Petitioner,
BRIAN FISCHER, Superintendent, Sing Sing Correctional Facility, and ELIOT L. SPITZER, Attorney General of the State of New York, Respondents.

The opinion of the court was delivered by: RICHARD HOLWELL, District Judge


On October 23, 1996, following a jury trial in New York State Supreme Court, Bronx County, Rafael Mojica ("Mojica") was convicted of one count of Murder in the Second Degree in violation of New York Penal Law ("NYPL") § 125.25[1], and one count of Criminal Possession of a Weapon in the Second Degree in violation of NYPL § 265.03. Following his conviction, Mojica was sentenced to concurrent indeterminate terms of imprisonment of from twenty years to life on former charge, and five to fifteen years on the latter charge. He is currently incarcerated at the Sing Sing Correctional Facility in Ossining, New York.

Mojica now brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging that his conviction violated the Fourteenth Amendment because, among other reasons, the trial court's jury charge impermissibly shifted the burden of proof to petitioner, and the trial court's "initial aggressor" clause improperly allowed the jury to reject his justification defense. On October 29, 2004, Magistrate Judge Kevin Nathaniel Fox issued a Report and Recommendation (the "Report") recommending that Mojica's petition be denied. Mojica filed a timely objection to that recommendation and requested that the Court conduct a de novo review of the petition pursuant to 28 U.S.C. § 636(b)(1). Having done so, and for the reasons that follow, the Court denies the petition.

  I. Standard of Review

  A district court judge may designate a magistrate to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within ten (10) days of service of the recommendation, any party may file written objections to the magistrate's report. Id. Upon review of those portions of the record to which objections were made, the district court judge 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).*fn1

  The nature and depth of that review depends on the tenor and specificity of the objections. Where objections are "merely perfunctory responses," argued in an attempt to "engage the district court in a rehashing of the same arguments set forth in the original petition," district courts should review a report and recommendation for clear error. Vega v. Artuz, 2002 WL 31174466, at *1 (S.D.N.Y. 2002); see also Barratt v. Joie, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002) ("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.") (citation omitted). On the other hand, where objections to a report are "specific and . . . address only those portions of the proposed findings to which the party objects," district courts should conduct a de novo review of the issues raised by the objections. Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F.Supp. 380, 381-82 (W.D.N.Y. 1992).

  Petitioner objects to the Report on several grounds. Given the specific nature of the objections, the Court will review the Report de novo rather than for clear error.

  II. Background

  The facts leading to petitioner's arrest and incarceration are relatively straightforward, and are not in dispute. On April 4, 1994, petitioner shot and killed Joseph Esperon near the intersection of East Gunhill Road and Putnam Place in the Bronx. At the time of the shooting, Esperon was engaged in a verbal altercation with petitioner's brother over a debt of $20. (Report, p. 2). At some point during the exchange between Esperon and petitioner's brother, Esperon threatened to injure petitioner if the debt was not repaid. Petitioner's brother then retrieved a baseball bat and confronted Esperon, swinging the bat but missing him. (Id., p. 3). Esperon responded by picking up a nearby garbage can and raising it above his shoulders as if to throw it at petitioner's brother. Before he could do so, he was fatally shot by petitioner, who had been watching the fight from a distance, apparently unobserved by Esperon and his brother. (Id.).

  At trial, petitioner admitted to firing the shots that killed Esperon, but asserted that he was justified in doing so pursuant to NYPL § 35.15 because Esperon was about to strike his brother with a large metal garbage can. (See generally, Report, pp. 2-6; Objections to Report, pp. 2-3 ("Obj.")). At the conclusion of trial, the court charged the jury regarding the defense of justification under New York law. The court explained that petitioner could use deadly force in defense of another if he reasonably believed that such force was necessary to defend himself or his brother against the imminent use of deadly force. (Id.; Tr., p. 794). Throughout the charge, the court made clear that it was the State's burden to prove beyond a reasonable doubt that petitioner was not entitled to the defense of justification. (See, e.g., Tr., p. 793). The court also discussed the import of the initial aggressor exception, (id., pp. 792-93), and the difference between "deadly force" and "ordinary force." (Id., pp. 790-791).

  The court then explained the concept of reasonableness in the context of justification. (Id., p. 794). In particular, the court told the jury that to claim justification, a defendant must reasonably believe both that (i) he or a third person is being or is about to be subjected to deadly physical force, and (ii) that the use of deadly physical force is necessary to defend him or that third person from the attack. The court then said: "The law provides that even if [petitioner] reasonably believes both of the above, a person may, nevertheless, not use defensive deadly physical force if he knows that he can avoid it." (Id.). It is this statement that petitioner now challenges, on the ground that the utterance amounted to a "duty to retreat" charge, which the Court had previously promised not to give.*fn2

  According to petitioner, this statement violated the Fourteenth Amendment in two ways. First, petitioner contends that it deprived him of the ability to present a defense at trial because his attorney had no opportunity to address the issue of retreat during his summation; and second, petitioner contends that the statement was an incomplete duty to retreat charge because it did not convey the fact that petitioner was obligated to withdraw only if he knew he could do so with "complete safety to himself and others," as required by NYPL § 35.1(2)(a).*fn3 Thus, petitioner argues that the state never proved beyond a reasonable doubt that he knew he could retreat with complete safety to his brother, as it would have been required to do had a duty to retreat charge been correctly given.

  Following his conviction, petitioner advanced both arguments on appeal to the New York Appellate Division of the First Department. The First Department denied both claims after rejecting their shared premise, finding that the court's charge — and in particular, the statement noted, supra — did not amount to a duty to retreat charge:
We reject defendant's argument that, by making reference to a duty to "avoid" the use of force, the court gave an inapplicable and incomplete instruction on the duty to retreat (Penal Law § 35.15[2] [a]). On the contrary, the court was clearly using the term "avoid" in the context of instructing the jury as to the proper standard of reasonableness regarding defendant's behavior, in that, separately from the duty to retreat, Penal Law § 35.15(1) permits the use of force only to the extent a defendant reasonably believes it to be necessary. This principle of law was clearly applicable to the facts herein, since it was a jury question whether defendant reasonably believed in the necessity of the degree of force he employed as opposed to a lesser degree of force.
People v. Mojica, 264 A.D.2d 693, 693 (N.Y.App. Div. 1st Dep't 1999). Having rejected this proposition, the court found the rest of charge to be "both legally correct and applicable to the facts," adding ...

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