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Lauren A. Smith v. Robert Ercole

May 6, 2011

LAUREN A. SMITH, PETITIONER,
v.
ROBERT ERCOLE,SUPERINTENDENT, GREEN HAVEN CORRECTIONAL FACILITY, RESPONDENT.



MEMORANDUM-DECISION AND ORDER

I. Introduction

On March 27, 2008, petitioner Lauren A. Smith filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,*fn1 challenging his New York State conviction for attempted murder in the first degree, assault in the second degree, criminal possession of a weapon in the second degree, criminal possession of a weapon in the third degree, and false personation. (See Pet., Dkt. No. 1.) On June 16, 2010, Magistrate Judge Andrew T. Baxter issued a Report-Recommendation (R&R) recommending that Smith's petition be dismissed and that a certificate of appealability be denied.*fn2 (Dkt. No. 33.) Pending are Smith's timely objections to the R&R. (Dkt. No. 36.) For the reasons that follow, the R&R is adopted in its entirety.

II. Background

The events leading to Smith's conviction were summarized in the R&R as follows:*fn3

On July 22, 2003, Utica Police Officer Charles Kelly initiated a traffic stop of a car being driven by petitioner Lauren Smith. Petitioner was unable to produce a license and provided a false name. After Officer Kelly directed petitioner to get out of the car, Smith started to flee. When the officer physically restrained Smith, [Smith] pulled a .45 caliber semi-automatic pistol. A struggle ensued during which the gun was, at various times, pointed at Officer Kelly's stomach, chest, and head. At one point, petitioner tugged at Kelly's holstered service gun, but was unable to draw it due to the holster's safety features.

Petitioner and Kelly wrestled until other officers arrived and placed petitioner in handcuffs. (Id. at 4-5.) Following his conviction in Oneida County Court, Smith appealed to the Appellate Division, Fourth Department, arguing that:

(1) his conviction for attempted murder was not supported by sufficient evidence;

(2) the trial court erred in its charge to the jury; and (3) his indeterminate sentence of twenty-three years to life was unduly harsh. See People v. Smith, 32 A.D.3d 1318 (4th Dep't 2006). The Appellate Division unanimously affirmed Smith's conviction and sentence, rejecting on the merits Smith's contention that the evidence was legally insufficient to support his attempted murder conviction. Id. at 1319. The court further found that Smith failed to preserve for appellate review his remaining contentions, and that they were "without merit" in any event. Id. at 1319-20.

After being denied leave to appeal to the New York Court of Appeals, see People v. Smith, 7 N.Y.3d 929 (N.Y. 2006), Smith filed with the Oneida County Court a pro se motion to vacate his conviction pursuant to N.Y. CRIM. PROC. LAW § 440.10. (See R&R at 12, Dkt. No. 33.) In support of his motion, Smith argued that his trial counsel was ineffective and that the evidence was insufficient to support a conviction for attempted murder. (See id. at 12-13.) In denying the motion, the court rejected Smith's ineffective assistance claims on the merits, and found that review of his remaining contention was foreclosed by his prior appeal to the Appellate Division. (See id. at 13; see also N.Y. CRIM. PROC. LAW § 440.10(2)(a) ("[T]he court must deny a motion to vacate a judgment when ... [t]he ground or issue raised upon the motion was previously determined on the merits upon an appeal from the judgment ....").) Smith sought leave to appeal the denial of his § 440.10 motion to the Appellate Division, Fourth Department, but was denied on December 18, 2008. (See R&R at 13, Dkt. No. 33.)

Soon thereafter, on March 27, 2008, Smith filed a petition for a writ of habeas corpus with this court, contending that: (1) his conviction for attempted murder was not supported by sufficient evidence; (2) the trial court erred in its charge to the jury; (3) his conviction for third-degree criminal possession of a weapon was not supported by sufficient evidence; and (4) his indeterminate sentence of twenty-three years to life was unduly harsh. (See Pet., Dkt. No. 1.)

Smith now objects to Judge Baxter's June 16, 2010 R&R, which recommends the dismissal of his habeas petition.

III. Standard of Review

Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole,No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or ...


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