Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Black v. Herbert

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


April 22, 2009

WINSTON BLACK, PETITIONER,
v.
VICTOR HERBERT, SUPERINTENDENT, ATTICA CORRECTIONAL FACILITY RESPONDENT.

The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.

OPINION and ORDER

Pro se petitioner Winston Black ("Black") seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his 1998 conviction in New York State Supreme Court, Bronx County. Black pled guilty to one count of murder in the second degree, and the trial court sentenced him to an indeterminate term of fifteen years to life imprisonment.

Black now claims (1) that the trial court's denial of his motion to withdraw his guilty plea, without holding an evidentiary hearing, violated his due process rights ("first claim"); (2) that he received ineffective assistance of trial counsel ("second claim"); and (3) that he received ineffective assistance of appellate counsel ("third claim").

On August 19, 2003, Magistrate Judge Freeman issued a Report and Recommendation ("Report I") concluding that Black's first claim lacks merit. On August 20, 2007, Magistrate Judge Freeman issued a Supplemental Report and Recommendation ("Report II") (together with Report I, the "Reports") concluding that Black's second and third claims lack merit.

For the reasons stated below, the Court ADOPTS the Reports in their entirety, and DENIES Black's Petitions for a writ of habeas corpus.

I. Background

The Reports, familiarity with which is assumed, describe the underlying facts and procedural history of this case in significant detail. Here, the Court describes only the procedural history most relevant to this Order.

A. Original Petition

On August 6, 2002, Black filed his original habeas Petition ("Original Petition") with the Court. Black's Original Petition asserts only his first claim, that his due process rights were violated when the trial court denied his motion to withdraw his guilty plea without holding an evidentiary hearing.

The Court referred Black's Original Petition to Magistrate Judge Freeman. On August 19, 2003, Magistrate Judge Freeman issued Report I, recommending that the Court deny Black's Original Petition.

On January 5, 2004, after several extensions, Black filed timely objections ("Objections I") to Report I.

B. Stay of Proceedings

In a letter dated July 27, 2004, Black requested a stay of his Original Petition so that he could exhaust additional claims in state court. In an Order dated August 24, 2004, the Court granted Black's request, and stayed his Original Petition.

C. Amended Petition

On September 9, 2005, Black filed an amended habeas Petition ("Amended Petition") (together with the Original Petition, the "Petitions") with the Court. Black's Amended Petition asserts his second claim, that he received ineffective assistance of trial counsel; and his third claim, that he received ineffective assistance of appellate counsel.

The Court referred Black's Amended Petition to Magistrate Judge Freeman. On August 20, 2007, Magistrate Judge Freeman issued Report II, recommending that the Court also deny Black's Amended Petition.

On November 29, 2007, after several extensions, Black filed timely objections ("Objections II") to Report II.

II. Analysis

A. Standard of Review

When reviewing a Report and Recommendation, the 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).

The court must make "a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (internal citations omitted).

Objections to a Report and Recommendation must be specific, and clearly aimed at particular findings in the magistrate judge's proposal. Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F.Supp. 380, 382 (W.D.N.Y. 1992). To the extent that the party makes only conclusory or general objections, or simply reiterates the original arguments, the Court will review the Report strictly for clear error. See Pearson-Fraser v. Bell Atl., No. 01 Civ. 2343 (WK), 2003 WL 43367, at *1 (S.D.N.Y. Jan. 6, 2003); Vargas v. Keane, No. 93 Civ. 7852 (MBM), 1994 WL 693885 at *1 (S.D.N.Y. Dec. 12, 1994).

B. Black's Claims

1. First Claim: Violation of Due Process Relating to Plea

In Report I, Magistrate Judge Freeman concludes that Black has exhausted his first claim, and that its merits are therefore properly before the Court. Based on a review of the merits, pursuant to the deferential Antiterrorism and Effective Death Penalty Act standard, Magistrate Judge Freeman concludes that Black's first claim fails.

In his Objections I, Black objects to Report I's conclusion. Black's objections, however, are general and conclusory. They restate his original arguments as to why his plea was involuntary, and why the trial court erred in failing to hold an evidentiary hearing on his motion to withdraw his plea. The Court therefore reviews Report I only for clear error.

The Court finds no clear error in Report I's analysis. Magistrate Judge Freeman concludes in Report I that the state court's denial of Black's motion to withdraw his guilty plea was not "contrary to, or involv[ing] an unreasonable application of, clearly established Federal law", and that the state court's conclusion that Black's plea was voluntary was not "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)(2). The Court agrees with these conclusions, and adopts Report I in its entirety.*fn1

2. Second Claim: Ineffective Assistance of Trial Counsel

In Report II, Magistrate Judge Freeman concludes that Black's second claim is procedurally barred; that Black cannot overcome the procedural bar; and that, even if the Court could review the merits of his claim, his claim would fail.

In his Objections II, Black concedes that his second claim is procedurally barred, but argues that he can overcome the procedural bar, and succeed on the merits of the claim. Black's objections are, again, almost entirely duplicative of his original arguments in support of his claim of ineffective assistance of trial counsel.*fn2 Accordingly, the Court reviews Report II's analysis of Black's second claim only for clear error.

The Court finds no clear error in Report II's analysis of Black's second claim. Magistrate Judge Freeman concludes that Black fails to show cause and prejudice for his failure to exhaust his ineffective assistance of trial counsel claim, and that Black similarly fails to show that a fundamental miscarriage of justice would result if the claim were not heard on the merits. Furthermore, Magistrate Judge Freeman concludes that even if the Court were to review Black's second claim de novo, the claim would fail, as it meets neither prong of the test for ineffective assistance of counsel articulated in Strickland v. Washington, 466 U.S. 668 (1984). The Court agrees with these conclusions, and adopts all of Report II relating to Black's second claim.

3. Third Claim: Ineffective Assistance of Appellate Counsel

In Report II, Magistrate Judge Freeman concludes that Black has exhausted his third claim, and that the merits are therefore properly before the Court. Based on a de novo review of the merits, Magistrate Judge Freeman concludes that Black's third claim fails.

In his Objections II, Black objects to this conclusion. His objections are, again, entirely duplicative of his original arguments in support of his claim of ineffective assistance of appellate counsel. Accordingly, the Court reviews Report II's analysis of Black's third claim only for clear error.

The Court finds no clear error. Magistrate Judge Freeman concludes that Black's claim of ineffective assistance of appellate counsel fails to meet either prong of the Strickland test, and the Court agrees. The Court therefore adopts all remaining portions of Report II.

III. Conclusion

For the reasons stated above, the Court adopts the Reports in their entirety. The Court DENIES Black's Petitions for a writ of habeas corppus (D.E. 1, 12).

A certificate of appealability will not issue because Black has not made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b). 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.

The Clerk of Court is directed to close this case; any pending motions are moot.

SO ORDERED.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.