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Almonte v. Lape

February 22, 2007

JULIO ALMONTE, PETITIONER,
v.
WILLIAM LAPE, RESPONDENT.



The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.

OPINION AND ORDER

Pro se Petitioner Julio Almonte brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After filing his petition, he moved for permission to stay these proceedings to exhaust additional claims in state court. By Report and Recommendation dated March 30, 2006 (the "Report"), Magistrate Judge Gabriel W. Gorenstein recommended that the petition and the motion to stay be denied. Petitioner objected to portions of the Report. For the reasons stated below, both the petition and the motion to stay are denied.

BACKGROUND

This summary is drawn from the Report's more detailed description of the facts, familiarity with which is assumed. See Almonte v. Lape, No. 05 Civ. 1995 (KMW) (GWG), 2006 U.S. Dist. LEXIS 13799, at *1-19 (S.D.N.Y. Mar. 30, 2006).

On the night of March 10, 2001, at a bar called El Sueno Two in the Inwood section of Manhattan, Petitioner and one Andres Pena ("Andres") got into a fight. The bar's security guard, Alexis Pena ("Alexis"), attempted to break up the fight. Alexis testified at trial that Petitioner tried to stab Andres in the back; Petitioner, however, testified that his knife was closed. Alexis successfully disarmed Petitioner; thereafter, Andres left for a nearby companion bar, El Sueno One. Twenty minutes later, Alexis returned Petitioner's knife and escorted him outside. Petitioner walked to El Sueno One, where he encountered Andres again and they began to fight again. The two men threw chairs at each other, Petitioner stabbed Andres in the side, and then Petitioner left the bar. (Andres was taken to a nearby hospital, where he eventually recovered.)

Back at El Sueno Two, Alexis received a call about the stabbing. He left, and was walking to El Sueno One when he encountered Petitioner on the street. Police officers arrived soon thereafter and saw Petitioner repeatedly swinging his knife at Alexis. After the police identified themselves, Petitioner dropped the knife and surrendered. The officers retrieved the bloody knife and arrested Petitioner, who blurted out that Alexis was a drug dealer and that drug dealers needed to be killed.

A jury in Supreme Court, New York County, convicted Petitioner of one count of first-degree assault on September 5, 2001. It acquitted him of two counts of attempted assault.

Petitioner was sentenced to six years' imprisonment on October 4, 2001.

On appeal to the Appellate Division, First Department, Petitioner raised three claims: (1) the evidence was insufficient to establish his guilt, (2) the verdict was against the weight of the evidence, and (3) the court erroneously defined "serious physical injury." The Appellate Division affirmed the conviction on May 11, 2004, People v. Almonte, 776 N.Y.S.2d 554 (App. Div. 2004), and the Court of Appeals denied leave to appeal, People v. Almonte, 817 N.E.2d 826 (N.Y. 2004).

Petitioner timely filed the instant petition for a writ of habeas corpus on February 4, 2005, raising the same three issues he raised before in the Appellate Division. On April 20, 2005, he wrote to the Court requesting that the proceedings be stayed so he could exhaust other issues in state court. In a brief dated July 10, 2005, Petitioner explained that the claims he wished to exhaust in state court were (1) that he received ineffective assistance of counsel because his lawyer failed to demonstrate a lack of probable cause for his arrest, and (2) that the felony complaint was defective. The Report, dated March 30, 2006, recommended that both the petition and the motion to stay be denied. Almonte v. Lape, No. 05 Civ. 1995 (KMW) (GWG), 2006 U.S. Dist. LEXIS 13799 (S.D.N.Y. Mar. 30, 2006).

STANDARD OF REVIEW

The Court must consider de novo any portion of a report and recommendation of a magistrate judge to which a party files timely written objections. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Portions of a report to which no timely objections are filed need be reviewed only for "clear error on the face of the record." Fed. R. Civ. P. 72(b) advisory committee's note; see also Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) ("[F]ailure to object timely to a magistrate's report operates as a waiver of any further judicial review of the magistrate's decision."); Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985).

Because Petitioner is proceeding pro se, his submissions must be construed liberally and must be interpreted as raising the strongest arguments they suggest. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). The Court should examine pro se submissions "with a lenient eye, allowing borderline cases to proceed." ...


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