The opinion of the court was delivered by: Denise Cote, District Judge
On June 30, 2008, Raylin Fabre filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his conviction in state court following entry of a plea of guilty to criminal possession of a weapon and criminal sale of marijuana. The petition was referred to the Honorable Andrew Peck, who issued a report on January 20, 2009 ("Report") recommending that the petition be denied. For the following reasons, the Report is adopted and the petition is denied.
As described in detail in the Report, on May 22, 2005, Fabre was involved in a shoot-out with a rival drug organization that resulted in a 15 year-old boy being shot in the arm. Fabre was indicted for weapon possession and assault. About a year later, on May 1, 2006, he was arrested and indicted on two counts of criminal sale of marijuana. Later that same month, prosecutors informed Fabre's counsel that they were presenting kidnapping charges to the grand jury, but would withdraw those charges if Fabre pleaded guilty to the weapon and drug charges with the understanding that he would be sentenced to five years' imprisonment. If Fabre refused, the prosecutors would recommend twenty-five years' imprisonment on the kidnapping charge, to be imposed consecutively to the sentences on the other charges.
On June 16, 2006, Fabre pleaded guilty to second degree criminal possession of a weapon and two counts of second degree criminal sale of marijuana, with an agreed upon aggregate sentence of five years' imprisonment. The weapon charge carried a maximum sentence of fifteen years, as Fabre acknowledged at his plea. During the plea allocution, Fabre admitted that on May 22, 2005 he discharged a loaded firearm intending to use it unlawfully against another, and that on dates in April 2006 he had sold over four ounces of marijuana. He admitted that his lawyers had explained his legal rights and options to him, that he was pleading guilty because he was guilty, and that he was not "under the influence of any drug[s] or alcohol." The prosecutor represented that it would close the open grand jury investigation.
On August 10, Fabre was sentenced principally to five years' imprisonment. He was advised of his right to appeal, but did not appeal.
On December 15, 2006, Fabre filed a pro se motion pursuant to Section 440.10 of the New York Criminal Procedure Law ("440 motion") arguing that the grand jury indictment was insufficient since no gun was ever recovered, and that his counsel was ineffective for (1) convincing him to allocute falsely that he possessed a gun, (2) advising him to plead guilty even though the prosecutor could not prove that he intended to use the gun against another person, and (3) advising him that a withdrawn plea could be used to cross-examine him at trial. In a detailed written opinion of July 26, 2007, the judge who took his plea of guilty rejected his motion. Leave to appeal was denied on November 8.
Fabre filed this timely petition on June 30, 2008. Following receipt of the Report recommending that his petition be denied, Fabre requested two extensions of time to object to the Report. The requests for an extension were granted, and on March 19, 2009, Fabre's timely objections to the Report were received.
A district 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 the portions of the report to which petitioner objects. 28 U.S.C. § 636(b)(1); see United States v. Oberoi, 547 F.3d 436, 453 (2d Cir. 2008) (citation omitted). To accept those portions of the report 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." Wilds v. United Parcel Service, Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003) (citation omitted).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214, modified the standard under which federal courts review Section 2254 petitions where the state court has reached the merits of the federal claim. Habeas relief may not be granted unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was 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)(1), (d)(2). State court factual findings "shall be presumed to be correct" and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." Id. at § 2254(e)(1).
Fabre pursues four claims through his habeas petition,*fn1 some of which were never presented to the state court. The Report's analysis of those claims is summarized below, along with any objection made by Fabre to its analysis.*fn2
1. Ineffective Assistance of Counsel
Fabre claims that his counsel was ineffective for failing to advise him that the evidence was insufficient to sustain a conviction for criminal possession of a weapon in the second degree where the prosecutor did not have the weapon that Fabre fired. As the Report explains, the ...