The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1
Pro se petitioner Hector Rodriguez brings this action seeking habeas relief pursuant to 28 U.S.C. § 2254, challenging his state court conviction and sentence on charges of attempted murder in the second degree, assault in the first degree, and criminal possession of a weapon in the second and third degrees. Petitioner is currently serving concurrent prison terms of seven years, seven years, six years, and two years with two-and-one-half years of post-release supervision for the respective crimes.
In the instant habeas petition, which was filed on August 24, 2009, petitioner argues (1) that his Fourteenth Amendment right to due process was violated when the State failed to disprove his justification defense beyond a reasonable doubt, and (2) that the sentencing court's reliance on unproven findings during sentencing denied him of due process.
On December 7, 2009, the matter was referred to United States Magistrate Judge Michael H. Dolinger, who issued a Report and Recommendation ("R & R") on July 12, 2010 concluding that Rodriguez's petition should be denied in its entirety. Just after the R & R was docketed, Magistrate Judge Dolinger received a copy of an Amended Petition, mailed by Rodriguez on July 8, 2010. Magistrate Judge Dolinger granted the motion to amend, but determined that the amendments to the petition did not change the result or reasoning in the R & R. See Memo Endorsement of July 14, 2010 (Docket No. 15.)
Around the same time, Rodriguez received a copy of Magistrate Judge Dolinger's July 12, 2010 R & R, along with instructions to file any objections within 14 days pursuant to Fed. R. Civ. P. 72. On July 25, 2010, Rodriguez mailed a brief letter to the Court. In it, he requested that the Court review his Amended Petition of July 8, 2010 prior to rendering a final decision in this matter. Rodriguez's July 24 letter expressed no other objections to Magistrate Judge Dolinger's R & R.
Having reviewed the R & R, I adopt the conclusions outlined therein, and accordingly, must deny Rodriguez's petition for a writ of habeas corpus.
The salient facts of petitioner's trial and sentencing are detailed extensively in the attached fifty-two page R & R, familiarity with which is presumed. Petitioner and a former employee, Julio Miguel Veras, had an altercation on December 26, 2005. Although the specific events that occurred during the argument are disputed, at some point, Mr. Veras attempted to strike petitioner with a hammer. Petitioner subsequently pulled out a firearm and shot Mr. Veras. As Mr. Veras fled, petitioner shot him a second time.
At trial, petitioner presented evidence that Mr. Veras had been the initial aggressor and raised a justification defense. However, video surveillance of the scene captured only the shooting itself, and not the events leading up to the shooting. The jury rejected petitioner's justification defense and subsequently convicted him of four of the five counts ultimately submitted.
At sentencing, the judge opted to impose a sentence slightly above the minimum for three reasons, one of which involved the concern that there was a strong indication petitioner had played a role in tampering with the video surveillance evidence. At the sentencing hearing, the defense offered no objection to these findings.
The Appellate Division, in affirming the conviction and sentence, stated that the jury verdict was "not against the weight of the evidence," People v. Rodriguez, 61 A.D.3d 460, 460, 875 N.Y.S.2d 890, 890 (1st Dep't 2009), and that petitioner "did not preserve his claim that the court based his sentence on any improper criteria." Id. On June 10, 2009 the New York Court of Appeals denied leave to appeal the conviction. People v. Rodriguez, 12 N.Y.3d 920, 884 N.Y.S.2d 701 (2009). On August 4, 2009, this petition followed.
When reviewing a Report and Recommendation from a magistrate judge, 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). Where no timely and actionable objection has been made, a district court may accept a Report and Recommendation so long as there is "no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); accord Edwards v. Fisher, 414 F. Supp. 2d 342, 346--47 (S.D.N.Y. 2006); Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) ("[T]he court is permitted to adopt those sections of the report to which no specific objection is made, so long as those sections are not facially erroneous."). However, when a specific objection is filed, the district court must review the relevant portion(s) of a magistrate's disposition de novo. Fed R. Civ. P. 72(b)(3); see also Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989) (noting that in the event of an objection by either party, the judge shall make "a de novo determination of those portions of the report . . . to which objection is made"); Camardo v. Gen. Motors Hourly Rate Emps. Pension Plan, 806 F. Supp. 380, 381--82 (W.D.N.Y. 1992) ("[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."). Where the objections are "merely perfunctory responses," the reviewing court need not engage in de novo review of the magistrate's Report and Recommendation. Vega v. Artuz, 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002); see also Boatswain v. Artus, 2009 WL 4496049, at *1 (S.D.N.Y. Dec. 3, 2009) (noting that party making conclusory objections or reiterating original arguments results in district court reviewing for clear error).
Here, petitioner's letter does not amount to an objection of any kind, much less a specific objection to a particular portion of the magistrate's report.*fn2 This conclusion is made in keeping with the Court's obligation to construe the submissions of pro se litigants liberally. See, e.g., Triestman v. Fed. Bureau of Prisons, 470 ...