The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
On February 6, 2006, Michael Horton filed a petition under 28 U.S.C. § 2254 for a writ of habeas corpus, challenging his New York State conviction and sentence for assault (two counts) and criminal use of a firearm. (See Dkt. No. 1.) Horton's petition was referred to Magistrate Judge David R. Homer for report and recommendation. On December 10, 2007, Judge Homer issued a Report-Recommendation and Order ("R&R") recommending that the petition be denied. (See Dkt. No. 12.)*fn1 Pending are Horton's written objections ("Objections") to the R&R. (See Dkt. No. 14.) Upon careful consideration of the arguments, the relevant parts of the record, and the applicable law, the court adopts the R&R.
Horton seeks a writ of habeas corpus on the grounds that: (1) the evidence supporting his conviction was legally insufficient; (2) the verdict was against the weight of the evidence; (3) the sentence imposed was excessive, cruel and unusual; and (4) trial counsel was ineffective. Judge Homer found that none of these contentions warranted granting the requested relief. In light of Horton's specific objections to many of Judge Homer's recommendations, the court has reviewed the majority of the R&R de novo, with the two exceptions noted in footnote 2. See Almonte v. N.Y. State Div. of Parole, No. 9:04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006).*fn2
A. Sufficiency of the Evidence
Horton objects to that portion of the R&R that rejects his argument that there was insufficient evidence that he was the shooter or that both shooting victims were subjected to a substantial risk of death. Judge Homer concluded that these sufficiency of the evidence claims were procedurally barred because they were not presented to the New York Court of Appeals, and Horton did not demonstrate cause for the default and resulting prejudice, nor, failing that, did he demonstrate that failure to review the claims would result in a fundamental miscarriage of justice.
(See R&R at p. 12-14; Dkt. No. 12.) Upon de novo review, the court concurs with Judge Homer's conclusions.
In his Objections, Horton contends that Judge Homer erroneously concluded that he did not argue on direct appeal that the evidence was insufficient to sustain his conviction. (See Objections at pp. 3-4; Dkt. No. 14.) In support of this view, however, Horton cites portions of his state appellate brief in which it was argued that the conviction went against the weight of the evidence. (See id.) Weight of the evidence claims are different from sufficiency of the evidence claims, and Judge Homer properly analyzed the two claims separately. See Stein v. Artus, No. 04-cv-0439, 2007 WL 2778914, at *7 (N.D.N.Y. Sept. 19, 2007). Horton does not point to any evidence that he made a sufficiency of the evidence argument on direct appeal.
Moreover, Judge Homer concluded that even if the claims were not procedurally barred, they lacked merit. The court concurs with this conclusion as well, because the evidence adduced at trial was sufficient to establish that Horton intended to cause serious physical injury to Kode Sealey, that he did so by use of a deadly weapon, and that he was the actual perpetrator.
Accordingly, the court adopts the R&R to the extent that it recommends denial of habeasrelief on the grounds of insufficiency of the evidence.
B. Weight of the Evidence
Although Horton argues in his Objections that his conviction was against the weight of the evidence, he does not address Judge Homer's determination that weight of the evidence claims are not cognizable on habeasreview. Nevertheless, upon de novo review, the court agrees that weight of the evidence claims are grounded in state criminal procedure, and are therefore not cognizable on federal habeas review. See Hogan v. Superintendent of Livingston Corr. Facility, No. 05-cv-6440, 2007 WL 2907322, at *8 (W.D.N.Y. Oct. 3, 2007). Accordingly, the court ...