The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.
Pro se Petitioner Javier Centeno ("Petitioner") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (See Amended Habeas Corpus Petition, dated July 18, 2006, No. 03 Civ. 3861, D.E. 19 (the "Petition").) Petitioner challenges his 1999 conviction in New York State Supreme Court, Bronx County, for Manslaughter in the First Degree, Assault in the First Degree, and Criminal Possession of a Weapon in the Second Degree.
Petitioner asserts six claims in the Petition. (See Petition, at 7-8.)*fn1 Petitioner argues that: (1) the prosecution failed to disprove his justification defense beyond a reasonable doubt (Claim 1); (2) the trial court erred by responding to the jury's note indicating that the jury was deadlocked when it discussed the legal standard for proving intent, but failed to restate the elements of justification (Claim 2); (3) Petitioner's sentence was harsh and excessive (Claim 3); (4) the prosecution misled the trial court about the nature of its plea agreement with a key witness, and failed to disclose information about the arrest of this witness for the same crimes with which Petitioner was charged (Claim 4); (5) Petitioner received ineffective assistance of trial counsel (Claim 5); and (6) Petitioner received ineffective assistance of appellate counsel (Claim 6). (See id.)
The Court referred this Petition to Magistrate Judge Theodore H. Katz for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). On August 17, 2007, Magistrate Judge Katz issued a Report and Recommendation (the "Report"), familiarity with which is assumed. (See D.E. 30.) The Report recommended that the Court deny the Petition.
Petitioner filed timely objections to the Report's recommendations relating to Claims 5 and 6. (See Objection to Report and Recommendation, dated October 22, 2007, D.E. 35 ("Pet.'s Objection"), at 3-4, 10-11, 20.) Accordingly, the Court reviews Claims 5 and 6 de novo.*fn2
Petitioner states that he does not object to the Report's recommendation that Claims 1-4 be dismissed. (See Pet.'s Objection 2-3.) The Court, therefore, reviews the Report's conclusions with respect to Claims 1-4 only for clear error.
For the reasons stated below, the Court adopts the Report's recommendations and DENIES the writ of habeas corpus.
Petitioner was convicted on April 8, 1999, following a jury trial, of (1) Manslaughter in the First Degree, (2) Assault in the First Degree, and (3) Criminal Possession of a Weapon in the Second Degree. He was sentenced by the trial judge on May 6, 1999, to consecutive indeterminate terms of imprisonment of (1) twelve and one-half to twenty-five years for his manslaughter conviction, and (2) seven and one-half to fifteen years for his assault conviction. The trial judge ordered that these terms were to run concurrently with a seven and one-half to fifteen year sentence for the weapons possession conviction.
A. Standard of Review of a Magistrate's Report Any party may file and serve written objections within ten days after being served with a copy of a magistrate judge's report. See 28 U.S.C. § 636(b)(1)(C). The district court makes a de novo determination of the specific portions of a magistrate judge's report to which a party has raised timely objections. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). The district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." See 28 U.S.C. § 636(b)(1)(C).
If neither party makes a timely objection to the magistrate's report, the district court "need only satisfy itself that there is no clear error on the face of the record." Brito v. Phillips, 485 F. Supp. 2d 357, 360 (S.D.N.Y. 2007)(internal citations and quotations omitted); accord Wilds v. United Parcel Serv.,Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003).
B. Standard of Review of a Habeas Petition
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides that a federal court may hear a petition for habeas corpus "only on the ground that [a person] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
Under the AEDPA, a federal court may grant a petition for habeas relief to a person who is in custody as a result of a judgment of a state court on any claim that has been adjudicated on the merits in state court, only if that adjudication of the claim:
(1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C.A. § 2254(d)(1)-(2).
While AEDPA's deferential standard applies only to claims that have been "adjudicated on the merits in State court proceedings," the Second Circuit "give[s] a broad reading to state court dispositions." See Eze v. Senkowski, 321 F.3d 110, 121-122 (2d Cir. 2003)(internal quotations and citation omitted). Indeed, "the 'state court need only dispose of the petitioner's federal claim on substantive grounds, and reduce that disposition to judgment. No further articulation of its rationale or elucidation of its reasoning process is required.'" Id. at 122 (quoting Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001).
Moreover, "an issue may be considered to be adjudicated on its merits even when the state court does not specifically mention the claim but uses ...