The opinion of the court was delivered by: Laura Taylor Swain, U.S.D.J.
MEMORANDUM OPINION AND ORDER
Hugo Flores brings this habeas corpus petition pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, New York County, for second degree depraved indifference murder under N.Y. Penal Law § 125.25(2). Petitioner asserts five claims for habeas relief: (1) that the trial judge improperly instructed the jury regarding the defense of justification, (2) that the prosecutor denigrated the defense and shifted the burden to the defendant during summation, (3) that the evidence was insufficient to prove depraved indifference murder, (4) that his right to due process was violated when his statements to the police were admitted into evidence in violation of his Miranda rights, and (5) that his sentence is excessive.
On December 11, 2008, Magistrate Judge Francis issued a Report and Recommendation (the "Report"), recommending that Petitioner's jury charge, prosecutorial misconduct, Miranda violation, and excessive sentence claims be denied, but that the writ should be granted based on Petitioner's sufficiency of the evidence claim. For the following reasons, the Court adopts Judge Francis' recommendation as to Petitioner's jury charge, prosecutorial misconduct, and Miranda violation claims, declines to accept Judge Francis' recommendations as to Petitioner's excessive sentence and sufficiency of the evidence claims, and denies the petition.
The factual and pre-trial procedural background of this matter are described in detail in the Report, familiarity with which is presumed.
At trial, Petitioner moved to suppress his statements to the police and the physical evidence gathered during the investigation. The court denied the motion, finding that Petitioner was not in custody when police brought him to the precinct for initial questioning, his post-Miranda statements were voluntary, and the search of Petitioner's apartment was based on consent.
At the conclusion of his trial, Petitioner moved for dismissal of the depraved indifference murder charge, arguing that "the People have not proved that the defendant acted under circumstances evincing a depraved indifference to human life." (Trial Tr. 1106:18-25.) After that motion was denied, Petitioner requested that the court charge Manslaughter in the Second Degree as a lesser included offense. (Trial Tr. 1120:4.) The court granted Petitioner's application to charge manslaughter in addition to depraved indifference murder. (Trial Tr. 22:18.) On January 24, 2002, Petitioner was convicted by a jury in New York County, New York, of Depraved Indifference Murder in the Second Degree under N.Y. Penal Law § 125.25(2). (Trial Tr. 1272-75.) On February 7, 2002, Petitioner was sentenced to 25 years to life. (Sentencing Tr. 21.)
On appeal to the Appellate Division, First Department, Petitioner asserted the same claims that he raises in his habeas corpus petition. (See, Resp't. Answer, Ex. C.) The appellate court rejected Petitioner's claims and affirmed his conviction, holding that his jury charge and prosecutorial misconduct claims were unpreserved, that his statements to the police were properly admitted since "a reasonable person in defendant's position would not have believed that the interrogation was custodial," that his sentence should not be reduced, and that his sufficiency of the evidence argument was unpreserved. People v. Flores, 803 N.Y.S.2d 85 (2005). Alternatively, the court held that, based on People v. Sanchez, 777 N.E.2d 204 (2002), a jury could reasonably have concluded that Petitioner lacked homicidal intent but acted under circumstances evincing a depraved indifference to human life. Flores, 803 N.Y.S.2d at 86. The New York Court of Appeals denied Petitioner's application for leave to appeal his conviction on January 4, 2006, and Petitioner's conviction became final 90 days later. People v. Flores, 844 N.E.2d 798 (2006).
In 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.A. § 636(b)(1)(c) (West Supp. 2004). To accept the Report of a magistrate judge to which no timely objection has been made, a district court "need only satisfy itself that there is no clear error on the face of the record." Johnson v. Reno, 143 F. Supp. 2d 389, 391 (S.D.N.Y. 2001); see also, Bryant v. New York State Dep't of Corr. Serv., 146 F. Supp. 2d 422, 424-45 (S.D.N.Y. 2001) (court may accept portions of the report to which no objections have been made if it is "not facially erroneous"). The Court is required to make a de novo determination as to those aspects of the Report to which specific objections are made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). If the party makes only conclusory or general objections, or simply reiterates the original arguments, however, the Court will review the Report strictly for clear error. See, United States ex rel. Casa Redimix Concrete Corp. v. Luvin Constr. Corp., 00 Civ. 7552(HB), 2002 WL 31886040, at *1 (S.D.N.Y. 2002); Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992); Chabrier v. Leonardo, No. 90 Civ. 0173(PKL), 1991 WL 44838, at *1 (S.D.N.Y. Mar. 26, 1991); Schoolfield v. Dep't of Corr., No. 91 Civ. 1691(MJL), 1994 WL 119740, at *2 (S.D.N.Y. Apr. 6, 1994). "[O]bjections to a Report and Recommendation are to be specific and are to address only those portions of the proposed findings to which the party objects." Camardo, 806 F. Supp. at 381-82.
As noted above, Petitioner asserts that (1) the trial judge improperly instructed the jury regarding the defense of justification, (2) the prosecutor denigrated the defense and shifted the burden to the defendant during summation, (3) the evidence was insufficient to prove depraved indifference murder, (4) his right to due process was violated when his statements to the police were admitted into evidence in violation of his Miranda rights, and (5) his sentence is excessive.
Judge Francis' Report recommended that Petitioner's claims regarding the jury charge and the alleged prosecutorial misconduct be rejected as procedurally barred because the state appellate court found the claims unpreserved and Petitioner cannot show just cause for that default. (Report 9, 11.) The Report recommended that Petitoner's claim that his statements to the police were admitted into evidence in violation of his Miranda rights be rejected as lacking merit. (Id. at 27.) Additionally, the Report recommended that Petitioner's excessive sentence claim be denied because Petitioner's sentence was not disproportionate under the Eighth Amendment. (Id. at 30.) Finally, the Report recommended that Petitioner's sufficiency of the evidence claim be granted, concluding that Petitioner's failure to preserve the claim on direct appeal was excusable in that the legal basis for his current claim had no reasonable basis in law at the time of trial and that developments in New York State law concerning the elements of depraved indifference murder during the time when Petitioner's appeal was pending rendered his conviction defective, such that the Appellate Division's conclusion that the trial evidence was legally sufficient to sustain his conviction constituted an unreasonable application of federal due process law. (Id. at 16-27.)
Respondents made no objection to the Magistrate Judge's recommendations as to Petitioner's jury charge, prosecutorial misconduct, and Miranda violation claims. However, Respondent specifically objects to the Magistrate Judge's recommendation regarding Petitioner's excessive sentence claim, arguing that the Magistrate Judge improperly denied the claim on its merits and should instead have denied it as procedurally defaulted. Respondent also makes specific ...