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Gibbons v. Ercole

August 12, 2010

DYLAN GIBBONS, PETITIONER,
v.
ROBERT ERCOLE, SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge

ORDER ADOPTING R&R

Petitioner Dylan Gibbons ("Gibbons") seeks a writ of habeas corpus challenging his conviction pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the petition on the grounds that all but two of Gibbons' claims are procedurally barred, and that all the claims either lack merit or are not cognizable on habeas review. On September 24, 2008, Magistrate Judge Michael H. Dolinger issued a thorough and complete Report & Recommendation ("R&R") of 85 pages, recommending that Gibbons' petition be dismissed. Having reviewed and considered the R&R, as well as Gibbons' timely objections, the Court ADOPTS Magistrate Judge Dolinger's recommendations and DENIES Gibbons' petition. For the reasons discussed below, Respondent's motion to dismiss is GRANTED.

BACKGROUND

Gibbons was convicted on March 7, 2002, after a jury trial, in New York State Supreme Court, New York County. The jury found Gibbons guilty of Murder in the Second Degree under a depraved indifference theory for the shooting of Russell Rocker ("Rocker") on October 25, 2000. Gibbons shot Rocker on the street near his Manhattan apartment building, shortly after Gibbons and Rocker had a confrontation in an elevator. Two eyewitnesses testified to Gibbons' shooting of Rocker. The state court sentenced Gibbons to an indeterminate prison term of 25 years to life.

Gibbons appealed his conviction to the Appellate Division, First Department. On February 3, 2005, the Appellate Division unanimously affirmed Gibbons' conviction and sentence. People v. Gibbons, 15 A.D.3d 196 (2005). The Appellate Division dismissed some of Gibbons' claims on the merits and, finding his remaining claims unpreserved, declined to review them on the merits. Id., at 196--97. The Appellate Division concluded, however, that if it were to consider Gibbons' remaining claims, they would be rejected. Id., at 197.

On March 25, 2005, Gibbons sought leave to appeal to the New York Court of Appeals. On May 17, 2005, the New York Court of Appeals denied Gibbons' application. People v. Gibbons, 4 N.Y.3d 886 (2005). On October 19, 2005, Gibbons filed his habeas corpus petition with this Court.

Gibbons' habeas petition includes six grounds for relief. Specifically, Gibbons asserts that: (1) the prosecutor's cross-examination at trial was improper; (2) the prosecutor's summation deprived him of a fair trial since the prosecution improperly characterized defense witnesses as liars, made other inflammatory comments designed to arouse jurors' emotions, and referenced Gibbons' nickname, "two shot"; (3) the evidence was insufficient to establish depraved indifference murder, as opposed to intentional murder; (4) New York Penal Law's definition of depraved indifference murder is unconstitutionally vague; (5) the trial court violated his Sixth Amendment right to confrontation by admitting hearsay testimony implying that an unnamed informant identified Gibbons as the shooter; and (6) the trial court delivered supplemental jury instructions that encouraged the jury to rely on the unnamed informant's testimony. (R&R at 1--2.)

Magistrate Judge Dolinger found that Gibbons' first two grounds for relief-the prosecution's prejudicial cross-examination and summation-were procedurally barred since Gibbons failed to exhaust his state-court remedies. (R&R at 29--36.) Additionally, Magistrate Judge Dolinger found three of Gibbons' claims procedurally barred since they were already decided on independent and adequate state grounds: (1) the evidence was insufficient to establish depraved indifference murder; (2) New York Penal Law's definition of depraved indifference murder is unconstitutionally vague; and (3) the trial court violated his Sixth Amendment right to confrontation. (R&R at 28, 36.) For completeness, however, Magistrate Judge Dolinger also determined that all of Gibbons' claims lack merit, including Gibbons' claim that the supplemental jury instructions were prejudicial. On October 14, 2008, Gibbons filed objections to the R&R ("Objections").

DISCUSSION

I. Standard of Review for a Report and Recommendation

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). When a timely objection has been made to the magistrate judge's recommendations, "the court is required to conduct a de novo review of the contested sections." Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). The Court, however, "may adopt those portions of the Report to which no objections have been made and which are not facially erroneous." La Torres v. Walker, 216 F. Supp. 2d 157, 159 (S.D.N.Y. 2000).

Gibbons raises four objections to the R&R. The objections repeat the arguments Gibbons made in his habeas petition. Each focuses on the merits of his claims, rather than on procedural deficiencies found by Magistrate Judge Dolinger.

Gibbons first contends that the prosecutor's summation deprived him of a fair trial since the prosecution improperly characterized defense witnesses as liars, made other inflammatory comments designed to arouse jurors' emotions, and referenced Gibbons' nickname, "two shot" (Objections at 25-26.) Second, Gibbons argues that the evidence adduced at trial was legally insufficient to sustain a conviction for depraved indifference murder. (Objections at 8-24.) Third, Gibbons contends that New York Penal Law's definition of depraved indifference murder is unconstitutionally vague. (Objections at 27-28.) Finally, Gibbons contends that the trial court violated his Sixth Amendment right to confrontation by admitting hearsay testimony implying that an unnamed informant identified Gibbons as the shooter. (Objections at 24-25.)

Gibbons does not object to Magistrate Judge Dolinger's finding that his claim regarding prejudicial supplemental jury instructions lacks merit. Nor does Gibbons object to Magistrate Judge Dolinger's finding that his remaining five claims are procedurally barred, including the four claims to which Gibbons now raises merit-based objections. Upon review, the Court finds no clear error in the portions of the R&R to which Gibbons does not object. Accordingly, the Court finds that all the claims to which Gibbons now raises objections are ...


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