UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
July 10, 2008
WILLIAM RAMOS, PETITIONER,
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT.
The opinion of the court was delivered by: George B. Daniels, District Judge
MEMORANDUM DECISION AND ORDER
Pro se petitioner William Ramos filed a writ of habeas corpus challenging his conviction, following a jury trial in New York State Supreme Court, Bronx County, for first degree robbery. Petitioner claimed that: (1) the prosecutor committed misconduct during her summation by making remarks that were not supported by the evidence; (2) trial counsel was ineffective for failing to object to the prosecutor's remarks; (3) a recording of the complaining witness's 911 call was improperly admitted into evidence; (4) his ten year sentence was excessive and the sentencing procedure was unconstitutional under United States v. Booker, 543 U.S. 220 (2005); and (5) the evidence presented at trial did not support a conviction.
This Court referred the matter to Magistrate Judge James C. Francis IV for a Report and Recommendation ("Report"). In his Report, Magistrate Judge Francis recommended that this Court deny petitioner's habeas corpus petition. The magistrate judge found that the evidence presented at trial supported the petitioner's conviction.*fn1 Magistrate Judge Francis found that the prosecutor's comments during summation were not improper, and that the prosecutor merely asked the jurors to draw an inference from their observations of properly admitted evidence. Therefore, petitioner's trial counsel was not ineffective for failing to object to the prosecutor's remarks during summation. The magistrate judge also found that the recording of the 911 call was properly admitted as evidence under the excited utterance exception to the hearsay rule. Fed. R. Evid. 803(2). Moreover, Magistrate Judge Francis found that petitioner failed to demonstrate that the state court's evidentiary ruling constituted a fundamental unfairness.*fn2
The magistrate judge further found that petitioner did not exhaust the administrative remedies for his excessive sentence claim. Magistrate Judge Francis finally found that petitioner's claim that his sentence was unduly harsh and excessive was not cognizable in a federal habeas proceeding. The magistrate judge properly noted that federal courts do not "re-examine state-court determinations on state-law questions" in habeas corpus matters, unless a violation of state law implicates a constitutional concern. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). There can be "[n]o federal constitutional issue...presented where...the sentence is within the range prescribed by state law." White v. Keane, 969 F. 2d 1381, 1383 (2d Cir. 1992). In addition, Magistrate Judge Francis found that petitioner's claim that his sentencing procedure was unconstitutional failed on the merits.*fn3
In his Report, Magistrate Judge Francis informed the parties of their right to submit objections to the Report, and advised the parties that failure to file timely objections to the Report would constitute a waiver of those objections. Petitioner filed timely objections to the Report. Petitioner's objections generally restated the original grounds for his petition.
The Court may accept, reject, or modify, in whole or in part, the findings and recommendations set forth within the Report. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b). The Court must make a "de novo determination of those portions of the Report or specified proposed findings or recommendations to which an objection is made." 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b). It is not required, however, that the Court conduct a de novo hearing on the matter. See United States v. Raddatz, 447 U.S. 667, 676 (1980). Rather, it is sufficient that the Court "arrive at its own, independent conclusions" regarding those portions to which objections were made. Nelson v. Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985) (quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983)). Accordingly, the Court, in the exercise of sound judicial discretion, must determine the extent, if any, it should rely upon the magistrate judge's proposed "findings and recommendations." Raddatz, 447 U.S. at 676. Since petitioner is proceeding pro se, his objections, as well as his other pleadings, are to be liberally construed and interpreted to raise the strongest argument they suggest. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
Upon de novo review of the instant matter, this Court determines that the magistrate judge's findings are supported by the record. Each of petitioner's claims and objections are without merit. This Court adopts Magistrate Judge Francis's Report in its entirety. Petitioner's habeas corpus petition is DENIED.
As the petitioner has not made a substantial showing of the denial of a federal right, a certificate of appealability will not issue. 28 U.S.C. § 2253; Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997); Lozada v. United States, 107 F.3d 1101 (2d Cir. 1997). Additionally, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438 (1962).