The opinion of the court was delivered by: Denise Cote, District Judge:
William Oree brings this timely filed pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction following a jury trial on the charges of second degree assault, third degree robbery, and first degree escape, and his sentence of twelve years to life imprisonment. The petition was referred to the Honorable Andrew J. Peck for a report and recommendation (the "Report") on June 8, 2010. The Report was filed on March 1, 2011, and recommends that the petition be denied. On March 18, 2011, Oree filed his objections. For the following reasons, the Report is adopted and the petition is denied.
The facts relevant to the petition are set out in detail in the Report and are summarized here. On May 29, 2006, Oree was arrested for forcibly taking a bicycle from Minkyung Cho. On June 2, 2006, during a court appearance in connection with the bicycle robbery, Oree escaped from a second floor holding cell in the Manhattan criminal courthouse by forcing open a window and climbing down scaffolding to the street below. New York Police Department Detective Raymond Clair pursued Oree. After a brief chase Oree was caught, but in the process Detective Clair injured his hand and knee.
At trial, Detective Clair testified that while pursuing Oree, Detective Clair tackled him and slammed his own hand and knee to the ground with the force equivalent to "making a fist and punching a cement wall." Detective Clair had a "large abrasion" on his knuckle that was bleeding and a "small abrasion" on his left knee. Emergency medical technicians bandaged Detective Clair's wounds and placed an ice pack on his knee. Detective Clair felt "swelling pain" in his hand and pain in his knee for more than a week after the incident, and took Tylenol to manage the pain.
On February 9, 2007, a jury convicted Oree of third degree robbery, second degree assault, and first degree escape. Oree was sentenced to twelve years to life imprisonment for the second degree assault conviction and two concurrent terms of two to four years imprisonment for the third degree robbery and first degree escape convictions.
Represented by new counsel, Oree appealed his conviction to the Appellate Division, First Department, based on two grounds:
(1) the evidence of Detective Clair's injuries was insufficient to support a finding of "physical injury" for purposes of the charge of second degree assault; and (2) his sentence as a persistent violent felony offender was unconstitutional because "the maximum sentence was increased based on findings made by a judge, rather than a jury." On January 13, 2009, the Appellate Division unanimously affirmed Oree's conviction. People v. Oree, 58 A.D.3d 473 (N.Y. App. Div. 2009). The New York Court of Appeals denied leave to appeal on April 24, 2009. People v. Oree, 12 N.Y.3d 819 (2009).
On March 9, 2010, Oree moved pro se pursuant to N.Y.C.P.L. § 440.10 to vacate his conviction on the grounds that he received ineffective assistance of trial counsel because: (1) his attorney improperly advised him that, after the jury foreman had been sworn in, it was too late to proceed with a bench trial; and, (2) his attorney failed to effectively challenge the use of his prior felony conviction to enhance his sentence to life imprisonment. Prior to submitting his § 440.10 motion, Oree requested an affidavit from his trial attorney. In a letter dated February 25, 2010 and attached to Oree's § 440.10 motion, the attorney stated that because his "recollection regarding our decision not to waive a jury trial differs from yours, I am not going to be able to provide a helpful affidavit for your motion." The Manhattan Supreme Court denied Oree's § 440.10 motion in its entirety on May 24, 2010. The Appellate Division denied Oree's application for leave to appeal on October 7, 2010.
While his § 440.10 motion was pending, Oree filed this pro se petition on April 20, 2010. The petition raises three challenges to Oree's conviction: the two grounds that Oree cited as the basis for his direct appeal to the Appellate Division and the ineffective assistance of counsel claim that Oree made in his § 440.10 motion. The Report concludes that all three claims lack merit.
Oree raises five objections to the Report: (1) that the entire Report violates his right to have the petition decided by a district judge; (2) that the Report contains "bias rhetoric" suggesting partiality; (3) that the Report erroneously concludes that the evidence established the "physical injury" element for second degree assault; (4) that the Report improperly relies on the Supreme Court's ruling in Apprendi v. New Jersey, 530 U.S. 566 (2000), in rejecting Oree's challenge to his sentence; and, (5) that the Report wrongly rejected Oree's claim that he was deprived of his right to a bench trial due to ineffective assistance of counsel.
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)(C). To accept those portions of the report to which no timely objection has been made, "a district court need only satisfy itself that there is no clear error on the face of the record." Wilds v. United Parcel Serv., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003). De novo ...