On or about March 8, 2010, Gary Rodriguez ("Petitioner"), proceeding pro se, filed a petition for a writ of habeas corpus against William Lee, Superintendent of Green Haven Correctional Facility ("Respondent"), pursuant to 28 U.S.C. § 2254. (See Pet. under 28 U.S.C. § 2254 for Writ of Habeas Corpus, dated Mar. 8, 2010 ("Petition"), at 3.) Petitioner challenges his April 25, 2005 conviction following a jury trial in New York State Supreme Court, New York County, of first and second degree robbery, in violation of New York Penal Law §§ 160.15 & 160.10, and his June 29, 2005 sentence to concurrent terms of 25 and 15 years' imprisonment. (See Pet. at 3.)
On April 17, 2008, the Appellate Division, First Department, unanimously affirmed the conviction, holding that "the verdict was not against the weight of the evidence"; there was "no basis for reducing [Petitioner's] sentence"; and the trial court "properly admitted, under the present sense impression exception to the hearsay rule, two non-testifying declarants' [911 calls]." People v. Rodriguez, 857 N.Y.S.2d 74, 74 (App. Div. 2008). On or about May 12, 2009, Petitioner applied for a writ of error coram nobis arguing that his appellate counsel was ineffective for failing to argue that trial counsel had been ineffective or that there had been prosecutorial misconduct.(See Pet. ¶ 13.) On October 8, 2008, "due deliberation having been had thereon , [Petitioner's] application [wa]s denied" by the Appellate Division. (See Order, dated Oct. 8, 2009, attached as Ex. L to Decl. of Leilani Rodriguez (for Respondent), dated Aug. 31, 2010 ("L. Rodriguez Decl.").) On February 17, 2010, the New York Court of Appeals denied leave to appeal. (See Cert. Denying Leave to Appeal, dated Feb. 17, 2010, attached as Ex. O to L. Rodriguez Decl.)
The Petition alleges, among other things: (1) that the jury's verdict "was against the weight of the evidence"; (2) that Petitioner's sentence "far exceeds the usual range of punishments for crimes committed under similar circumstances"; (3) that "the admission of 911 calls placed by individuals who were not available for cross examination and who did not witness the alleged robbery violated the Confrontation Clause of the Sixth Amendment and New York's hearsay rule to the extent the calls referred to the alleged robbery"; (4) that statements made during summation by the prosecutor were improper; (5) ineffective assistance of trial counsel; and (6) ineffective assistance of appellate counsel. (Pet. at ii, iii, 3.)
On February 22, 2011, United States Magistrate Judge James C. Francis IV, to whom this matter had been referred, issued a thorough Report and Recommendation ("Report") recommending dismissal of the Petition because, among other reasons: (1) Petitioner's weight of the evidence claim "is a state law claim that is not cognizable in federal court," and construing, arguendo, the Petition "to raise a [federal] sufficiency of the evidence claim," such claim "is procedurally barred"; (2) Petitioner's "claim that his sentence is excessive . . . does not allege a violation of a federally protected right," and is procedurally barred; (3) the "911 recordings admitted in this case fit squarely within the Supreme Court's definition [in Davis v. Washington, 547 U.S. 813 (2006)] of non-testimonial-and therefore admissible-statements"; (4) Petitioner "did not suffer prejudice from [the prosecutor's comments at summation] sufficient to merit habeas corpus relief"; (5) trial counsel's decision not "to track down [another] witness to have him testify at trial" was a "reasoned strategic decision [which neither fell] below an objective standard of reasonableness" nor "prejudiced the outcome of the case"; and (6) appellate counsel's "fail[ure] to raise the issues of ineffective assistance of trial counsel and prosecutorial misconduct" does not constitute ineffective assistance because Petitioner "cannot establish a reasonable probability that the appellate court would have granted [relief on either of those two] claims." (Report at 12--15, 18, 27, 28--29, 31--32, 33--34.)
The Report instructed the parties that they had "fourteen (14) days from [February 22, 2011] to file written objections." (Report at 35.) By letter endorsement, dated March 4, 2011, the Court granted Petitioner an extension to April 24, 2011 to file objections. On or about April 7, 2011, Petitioner filed objections to the Report ("Objections") arguing essentially the same points he presented to Judge Francis.
For the reasons stated below, the Report is adopted in its entirety and the Petition is dismissed.
The Court "shall make a de novo determination of those portions of [a magistrate judge's] report or specified proposed findings or recommendations to which objection is made."
28 U.S.C. § 636(b)(1). The Court may adopt those portions of a magistrate judge's report to which no objections have been made and which are not clearly erroneous. See Fed. R. Civ. P. 72(b); DeLeon v. Strack, 234 F.3d 84, 86--87 (2d Cir. 2000); Santana v. United States, 476 F. Supp. 2d 300, 302 (S.D.N.Y. 2007). A district judge "may accept, reject, or modify, in whole or in part, the findings and recommendations of the magistrate judge." 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b); DeLeon, 234 F.3d at 86--87.
Where, as here, the petitioner is proceeding pro se, the Court construes the petitioner's claims liberally, see Marmolejo v. United States, 196 F.3d 377, 378 (2d Cir. 1999), and will "interpret them to raise the strongest arguments that they suggest," Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
The facts and procedural history set forth in the Report are incorporated herein by reference. Having conducted a de novo review of the Report, the Objections, the record and the applicable legal authorities, the Court concludes that the Report is supported by the record and the law in all ...