The opinion of the court was delivered by: Kenneth M. Karas, District Judge
ORDER ADOPTING REPORT & RECOMMENDATION
Augustine Cruz ("Petitioner"), proceeding pro se, brings this writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction for grand larceny in the fourth degree (N.Y. Penal Law § 155.30(5)), and robbery in the second degree (N.Y. Penal Law § 160.10(3)).*fn1
The case was referred to Magistrate Judge George A. Yanthis for review, pursuant to 28 U.S.C. § 636(b).*fn2 On January 15, 2008, Magistrate Judge Yanthis issued a thorough Report and Recommendation ("R&R"), concluding that this Court should deny the Petition in all respects. For the reasons stated herein, the Court denies Petitioner's claims for habeas relief and adopts the conclusions of the R&R.
Although the Court will assume the Parties' general familiarity with the factual and procedural background of this case as set forth in the R&R, the Court will briefly summarize the facts most salient to the Petition.
Petitioner was charged with three counts of robbery, following an incident on May 26, 1999, in which Petitioner demanded the belongings of an individual and drove away in her car after displaying what appeared to be a handgun. Following a jury trial in New York Supreme Court, Dutchess County, Petitioner was convicted of grand larceny in the fourth degree and robbery in the second degree.
On March 14, 2000, after denying Petitioner's motion to set aside the jury verdict (Aff. in Answer to Pet. for Writ of Habeas Corpus ("Resp. Aff."), Ex. 7 (People v. Cruz, No. 99-62, at 2 (N.Y. Sup. Ct. Feb. 22, 2000) (decision and order)), New York Supreme Court Judge Richard A. Molea sentenced Petitioner to concurrent terms of prison, with the longest running for a period of twenty years to life (Resp. Aff., Ex. 1 (Sentence and Commitment)).
Petitioner thereafter engaged in lengthy appeal proceedings. On direct appeal, Petitioner, by counsel, argued that (1) certain preliminary instructions given to the jury were unconstitutional, (2) evidence submitted at trial was insufficient to sustain either conviction, (3) the trial court failed to comply with N.Y. Penal Law § 70.10 and N.Y. Crim. Proc. Law ("CPL") § 400.20, and (4) his sentence as a persistent violent felony offender and persistent felony offender was unconstitutional. (Resp. Aff., Ex. 8 (Br. for Def.-Appellant) at iv).) In a September 8, 2003 order, the Appellate Division affirmed the state supreme court's judgment. See People v. Cruz, 764 N.Y.S.2d 197, 198 (App. Div. 2003). The Court of Appeals thereafter denied Petitioner's leave to appeal on December 23, 2003. See People v. Cruz, 807 N.E.2d 900 (N.Y. 2003).
Petitioner, proceeding pro se, then moved the trial court to vacate its judgment, pursuant to CPL § 440.10(1)(h), on the basis of ineffective assistance of court-appointed trial counsel. (Resp. Aff., Ex. 12 (Def.'s Notice of Mot. to Vacate J. & Aff. in Supp. of Mot. to Vacate J.).) On December 9, 2004, the state supreme court denied Petitioner's motion because Petitioner had failed to raise his ineffective assistance claim on direct appeal. (Resp. Aff., Ex. 14 (People v. Cruz, No. 99-62 (N.Y. Sup. Ct. Dec. 9, 2004)).) Petitioner sought leave to appeal the order, but the Appellate Division denied his application on April 8, 2005. (Resp. Aff., Ex. 15 (People v. Cruz, No. 2005-00991, slip op. at 1 (App. Div. Apr. 8, 2005) (decision and order denying leave to appeal)).)
On June 22, 2005, Petitioner filed the instant application for habeas relief, pursuant to 28 U.S.C. § 2254. In his Petition, Petitioner asserts the same four arguments he advancedon his direct appeal, as well as the ineffective assistance of counsel claim that he raised in his motion to vacate. (Mem. of Law Accompanying Pet. for Writ of Habeas Corpus ("Pet'r Mem.") 2-3.)
In the R&R, Magistrate Judge Yanthis recommended that the Petition be denied in its entirety. (R&R 19.) Petitioner submitted timely objections on February 15, 2008 (Objections to Mag.'s R&R ("Obj.")),*fn3 in which he argued that Magistrate Judge Yanthis incorrectly decided the issues of: (1) the preliminary instruction; (2) the sufficiency of the evidence to sustain a guilty verdict; and (3) the constitutionality of Petitioner's enhanced sentence. (Id.) Petitioner lodged no objections to Magistrate Judge Yanthis's conclusions regarding the alleged failure of the trial court to comply with the requirements of N.Y. Penal Law § 70.10 and CPL § 400.20, or the ineffective assistance of counsel claim.
1. Review of Magistrate Judge's Report & Recommendation
A district court reviewing a report and recommendation addressing a dispositive motion "'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); see also Donahue v. Global Home Loans & Fin., Inc., No. 05-CV-8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007). Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), parties may submit objections to the magistrate judge's report and recommendation. The objections must be "specific" and "written," Fed. R. Civ. P. 72(b)(2), and must be made "[w]ithin 10 days after being served with a copy of the recommended disposition." Id.; see also 28 U.S.C. § 636(b)(1).
Where a party submits timely objections to a report and recommendation, as Petitioner has here, the district court reviews de novo the parts of the report and recommendation to which the party objected. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Donahue, 2007 WL 831816, at *1. The district court "may adopt those portions of the . . . report [and recommendation] to which 'no specific written objection' is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law." See Eisenberg v. New England Motor Freight, Inc., 564 F. Supp. 2d 224, 226 (S.D.N.Y. 2008) (quoting Fed. R. Civ. P. 72(b)(2)).
2. Review of Petition for Habeas Corpus Relief
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim . . . resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States . . . ." 28 U.S.C. § 2254(d)(1). Thus, Petitioner is entitled to habeas corpus relief only if he can show that "the state court 'unreasonably' applied law as established by the Supreme Court in ruling on petitioner's claim, or made a decision that was 'contrary to it.'" Cousin v. Bennett, 511 F.3d 334, 337 (2d Cir. 2008) (quoting 28 U.S.C. § 2254(d)(1)). "While 'the precise method for distinguishing objectively unreasonable decisions from merely erroneous ones' is somewhat unclear, 'it is well-established in this Circuit that the "objectively unreasonable" standard of § 2254(d)(1) means that petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief.'" Sorto v. Herbert, 497 F.3d 163, 169 (2d Cir. 2007) (quoting Torres v. Berbary, 340 F.3d ...