The opinion of the court was delivered by: Richard J. Holwell, District Judge:
MEMORANDUM OPINION AND ORDER
Magistrate Judge Ronald L. Ellis has issued a Report and Recommendation ("Report") recommending that the Court dismiss this petition for a writ of habeas corpus of petitioner Anthony B. Hall with prejudice. Hall subsequently mailed his objections to the Report. The Court adopts the Report's results in full. Hall's petition is denied is denied with prejudice.
The Court briefly recounts the facts of the case but assumes familiarity with the background and relevant procedural history as set forth in Judge Ellis's Report.
On August 28, 1997, Jabbar Edmund was shot and killed at close range on a basketball court in the Bronx. Hall was arrested in South Carolina for the crime on September 9, 1997. After being administered Miranda warnings, Hall gave an initial statement describing the shooting and admitting that he had shot Edmund after Edmund had spoken with his girlfriend. Later, Hall gave a videotaped statement to an Assistant District Attorney that repeated his earlier admissions but added that Hall had first waved the gun at Edmund and had fired only to scare him.
On October 7, 1997, Hall was indicted in New York for second-degree murder, first-degree manslaughter, and criminal possession of a weapon. On September 27, 1999, the New York Supreme Court, after conducting a full Huntley/Mapp suppression hearing, denied Hall's motion to suppress evidence. A jury convicted Hall on November 9, 1999, of second-degree (depraved indifference) murder. Hall then filed a pro se motion pursuant to N.Y. Crim. Proc. Law § 330.30 to set aside his conviction on the grounds that(1) his arrest was based on an invalid warrant and his subsequent statements were therefore improperly obtained; (2) he was coerced into confessing to the police; and (3) he did not receive a fair trial for various reasons, including ineffective assistance of trial counsel. In March 2000, Hall filed a pro se motion to vacate the judgment pursuant to N.Y. Crim. Proc. Law § 440.10 on the grounds that (1) the prosecutor presented false evidence; and (2) the prosecutor withheld exculpatory information. This motion was denied in December 2000. In January 2003, Hall filed a direct appeal through appointed counsel from the Legal Aid Society that alleged (1) that Hall had been deprived of the right to a fair trial; (2) that insufficient evidence existed to convict Hall for depraved indifference murder; and (3) that Hall's sentence was improper and excessive. The Appellate Division, First Department affirmed Hall's sentence on October 2, 2003 in People v. Hall, 309 A.D.2d 511 (N.Y. App. Div. 2003). In April 2004, Hall moved for a writ of error coram nobis alleging the ineffective assistance of his appellate counsel, but that writ was denied in People v. Hall, 9 A.D.3d 918 (N.Y. App. Div. 2004). Hall then filed a timely petition for a writ of habeas corpus on March 4, 2005; and Judge Ellis thereafter issued the Report recommending that the petition be denied.
The district court adopts a Magistrate Judge's Report and Recommendation when no clear error appears on the face of the record. See Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). However, the court is required to make a de novo determination of those portions to which a specific objection is made, 28 U.S.C. § 636(b)(1)(C), by reviewing "the Report, the record, applicable legal authorities, along with Plaintiff's and Defendant's objections and replies." Bandhan v. Laboratory Corp. of America, 234 F. Supp. 2d 313, 316 (S.D.N.Y. 2002). The court may then accept, reject, or modify in whole or in part recommendations of the Magistrate Judge. Watkins v. Artus, No. 08 Civ. 5891, 2010 WL 5060883, at *1 (S.D.N.Y. Dec. 8, 2010). However, "when a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Walker v. Vaughan, 216 F. Supp. 2d 290, 292 (S.D.N.Y. 2002); see also Davila v. Bradt, No. 08 Civ. 3227, 2011 WL 611881 at *1 (S.D.N.Y. Feb. 17, 2011) ("[N]o party [will] be allowed a second bite at the apple by simply relitigating a prior argument.").
Hall makes three specific objections to the Report: (1) that Judge Ellis improperly found certain claims unexhausted because Judge Ellis considered each challenge to his conviction separately rather than under the umbrella of his ineffective assistance of counsel claim, which he argues was properly exhausted; (2) that Judge Ellis improperly considered his Fourth Amendment claim on its merits rather than considering it as an aspect of his ineffective assistance of counsel claim; and (3) that there was not sufficient evidence to convict him of second degree murder.
First Objection: Scope and/or Exhaustion of Ineffective Assistance Claim
Hall's first objection is that Judge Ellis should not have found certain-but not all-of Hall's claims unexhausted or procedurally defaulted because Hall only meant to assert ineffective assistance of counsel claims-which Hall argues were not procedurally defaulted-under which different aspects of Hall's counsel's ineffectiveness were highlighted. (Pet'r's Objection at 1.) Hall also objects to Judge Ellis not considering any of his failures to exhaust or otherwise procedurally defaulting on claims as themselves part of his ineffective assistance claim. (Id.)
As a preliminary matter, Hall's habeas petition quite clearly sets forth six grounds for challenging his conviction, only one of which is that "[t]he Petitioner was denied Effectual Assistance of Counsel during Trial." (See Petition Ex. C at 1 ¶ 4.) In addition, Hall specifically "ask[ed] the Court to address," in its review of the petition, "all five*fn1 of the grounds raised" in the petition. (Petition at 4; see also Petition Ex. D at 1 ("The Petitioner humbly request[s] that the Court please view each Ground separately ([a]llowing each to stand on its own Island).").) However, even if (A) Hall meant to include "anything . . . raised inappropriately by trial counsel [as] being challenged . . . as evidence to his Ineffective Assistance" claim, (Pet'r's Objection at 1), or (B) Hall meant to include in that claim trial counsel's "fail[ure] to preserve any issue," (id.), Hall's objection would still lack merit since his ineffective assistance of counsel claim was unexhausted. In other words, Judge Ellis either properly considered the exhaustion or lack thereof of each claim individually, or should have lumped all those claims under the umbrella of Hall's ineffective assistance of counsel claim; but even if Hall is correct about the latter, the claims must still be dismissed because Hall's ineffective assistance claim was not properly exhausted.
Judge Ellis found Hall's ineffective assistance of counsel claim procedurally defaulted; the claim was deemed exhausted because of a state procedural bar and Hall made no showing of cause for the default or of prejudice from that default. (Report at 8-10.) Under Section 2254 of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court reviewing a habeas petition must confront the threshold issue of whether the petitioner has fully exhausted his state remedies. If not, the court cannot grant habeas relief. 28 U.S.C. § 2254(b)(1); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). The reviewing court must first consider whether state remedies remain available; if they do not, then the relevant claims are deemed exhausted, "regardless of the reason for the unavailability." Woodford v. Ngo, 548 U.S. 81, 92-93 (2006). Second, the court must consider whether the remedies were properly exhausted; i.e. that the petitioner has presented the relevant claims to the highest state court. Galdamez v. Keane, 394 F.3d 68, 73 (2d Cir. 2005). Alternatively, if the claim has not been presented to the highest court but state procedural rules prevent further state review, the claim is said to be "procedurally defaulted," id., and may be ...