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Llanos v. Goord

May 28, 2008


The opinion of the court was delivered by: Richard J. Holwell United States District Judge


Petitioner Wilson Llanos ("Llanos") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his October 26, 2000 conviction for first degree assault in the Supreme Court, New York County. On July 14, 2006 Magistrate Judge Andrew J. Peck issued a Report and Recommendation ("Report") recommending that Llanos' petition be denied and that a certificate of appealability should not issue. Llanos filed timely objections to the report on August 23, 2006 ("Objection"). Having reviewed the Report, the objections and the record, the Court denies the petition, adopts the Report in its entirety, and determines that a certificate of appealability should not issue.

The basic facts of this case are ably set forth in Magistrate Judge Peck's thorough report, familiarity with which is assumed. The Court restates the facts only as they pertain to Petitioner's objections to the report.


On July 26, 1999, Llanos got into an altercation with Alfy Jiminez ("Jiminez") because Jiminez believed that petitioner was physically abusing his sister, Elizabeth Rodriguez (who had been Petitioner's girlfriend). In the course of this altercation, Llanos stabbed Jiminez five times in his chest, face and throat. Llanos was charged with second degree attempted murder and first degree assault, but he claims he stabbed Jiminez in self-defense.

At a Molineuxhearing held before trial, the court ruled that the People could not present evidence of specific acts of Petitioner's physical abuse of Rodriguez. Justice Atlas, the trial judge, ruled that he would allow testimony by Jiminez that the argument that led to his stabbing was about Petitioner's abuse of his sister as necessary to explain the nature, purpose and intensity of the argument. However, in his opening statement, defense counsel referred to Petitioner as "passive." As a result, the Court allowed the People to introduce the previously-excluded testimony to rebut this assertion, and called Rodriguez to testify that Llanos had hit and stabbed her. Testimony was also offered by the mother of Jiminez and Rodriguez and by a medical examiner, Dr. Barbara Sampson, as an expert regarding Jiminez' medical records. Petitioner's counsel cross-examined Dr. Sampson regarding the limited severity of Jiminez' wounds. Counsel did not inquire as to whether the medical records suggested that Jiminez was intoxicated. Petitioner chose to testify as the only witness presented in his defense.

Petitioner was found guilty of first degree assault and acquitted of second-degree attempted murder. Appellate counsel promptly moved under Criminal Procedure Law §440.10 to vacate the conviction on the grounds that it was obtained due to ineffective assistance of counsel. Following a hearing, this motion was denied by Justice Atlas, and counsel then filed a consolidated appeal of Petitioner's conviction and the denial of the §440 motion. This was denied by the Appellate Division, First Department, and the New York Court of Appeals denied further review.

Petitioner then filed a timely petition for a writ of habeas corpus. In his petition, Petitioner claims that his trial counsel was ineffective for (1) failing to review the victim's medical records so that he could effectively cross-examine the prosecution's medical expert, (Pet'r Pet. for Habeas Corpus 4, 6-10), (2) opening the door to testimony about Llanos' prior violent acts by describing Llanos in his opening statement as "passive," (Id. at 4, 11-12), (3) failing to call two defense witnesses with potentially exculpatory testimony, (Id. at 5, 13-15), (4) failing to request a Ventimiglia hearing to challenge the admissibility of evidence relating to Llanos' aunt's bribery charge, (Id. at 5, 15-17), and (5) failing to request a "no duty to retreat" jury instruction as part of the justification jury charge. (Id. at 5, 17-19). The petition was referred to Magistrate Judge Peck for a report and recommendation, which was issued on July 14, 2006.



A district 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). Where timely objections are made, the court is required to "make a de novo determination of those portions of a report . . . to which objection is made." Id.; see United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). If no timely objection has been made to a (3) portion of the report, "a district court need only satisfy itself that there is no clear error on the face of the record." Wilds v. UPS, Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003).

If 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." Sanchez v. Dankert, No. 03 Civ. 2276 (LTS), 2004 U.S. Dist. LEXIS 3716 at *3-- *4 (S.D.N.Y. Mar. 9, 2004); accord Johnson v. City Univ. of N.Y., No. 00 CV 4964 (WK), 2003 U.S. Dist. LEXIS 10615 at *2 (S.D.N.Y. June 19, 2003).

The standard of review is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 110 Stat. 1214, as codified in 28 U.S.C. § 2254(d). Habeas petitions under Section 2254 may not be granted unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. §§ 2254(d)(1), (d)(2). "Clearly established federal law" "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision. Williams v. Taylor, 529 U.S. 362, 412 (2000).

Under AEDPA, factual determinations made by State courts are "presumed to be correct," and the habeas petitioner bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. §§2254(e)(1); see Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (citing Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)) (4) ...

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