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Chappero v. West

July 15, 2009

ANDRE CHAPPERO,*FN1 PETITIONER,
v.
CALVIN WEST, SUPERINTENDENT, ELMIRA CORRECTIONAL FACILITY RESPONDENT.



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

OPINION and ORDER

Pro se petitioner Andre Chappero ("Chaperro") seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his 1998 conviction in New York State Supreme Court, New York County. A jury convicted Chappero of one count of murder in the second degree, in violation of New York Penal Law § 125.25, and one count of criminal possession of a weapon in the second degree, in violation of New York Penal Law § 265.03.

Chappero asserts the following six claims as grounds for habeas relief: (1) his trial counsel provided ineffective assistance of counsel; (2) the nine years between the date of the crime and his indictment constituted an unconstitutional delay; (3) identification evidence should have been suppressed on the ground that the identification procedure was impermissibly suggestive and thus unconstitutional; (4) he was denied a fair trial as a result of an improper comment in the prosecutor's opening statement; (5) expert ballistics testimony should not have been admitted at trial because of a break in the chain of custody with respect to the physical evidence; and (6) the evidence presented at trial was insufficient as a matter of law to establish his guilt beyond a reasonable doubt.

On July 10, 2008, Magistrate Judge Debra Freeman issued a Report and Recommendation (the "Report"), familiarity with which is assumed. The Report concludes that each of Chapparo's six claims for habeas relief is without merit. On September 29, 2008, Chapparo filed timely objections to the Report.*fn2 For the reasons stated below, the Court ADOPTS the Report in its entirety, and DENIES Chappero's petition for a writ of habeas corpus.

I. 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).

However, to the extent that a party makes only conclusory or general objections, or simply reiterates the original arguments, the court will review those portions of 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). The court will also review for clear error portions of the Report to which the parties do not object. Fed. R. Civ. P. 72(b) advisory committee's note; see also Rodriguez v. Morton, 2009 U.S. Dist. LEXIS 12470, *2 (S.D.N.Y. Feb. 13, 2009). When the court is reviewing for clear error, the court considers whether the section under review is free of any "clear error on the face of the record." Fed. R. Civ. P. 72(b) advisory committee's note; Rodriguez, 2009 U.S. Dist. LEXIS at *2.

II. Analysis

Chapparo objects to the Report's recommendation that the Court reject his claims for habeas relief.*fn3 For the following reasons, the Court finds that Chapparo's five objections are without merit.

A. Claim One: Ineffective Assistance of Counsel

The Report recommends dismissing Chapparo's claim for ineffective assistance of counsel. The Report explains that to establish an ineffective assistance of counsel claim, a petitioner must show both: (1) that counsel's performance "fell below an objective standard of reasonableness," and (2) that there is a reasonable probabilty that, but for counsel's unprofessional errors, the result of the proceedings would have been different." (Report, at 20-21 (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).) The Report concludes that Chapparo has failed to show that had his counsel made timely motions to dismiss the case for pre-indictment delay, the outcome of his case would have been differen t . Strickland, F.3d at 688,*fn4 694.

Chapparo objects to this recommendation, claiming that the Report misconstrues his argument. According to Chapparo, the Report perceives him to be arguing that his counsel's performance as a whole was ineffective, whereas he is arguing that there was a single isolated error -- the failure to raise a timely motion to dismiss the indictment -- that rendered his counsel ineffective.

The Court finds that the Report does not misconstrue Chapparo's argument. The Report considers Chapparo's argument that his counsel's delay in raising the motion to dismiss constituted ineffective assistance of counsel, and rejects it. (Report, 20, 27-29.) The Report then concludes that even if the motion to dismiss had ...


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