The opinion of the court was delivered by: x Richard J. Holwell, District Judge
MEMORANDUM OPINION AND ORDER
Petitioner Juan C. Pena brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial, Pena was convicted of four counts of rape in the first degree in violation of New York Penal Law § 130.35(1) and one count of sexual abuse in the first degree in violation of New York Penal Law § 130.65(1), and was sentenced to an indeterminate term of twenty-five to fifty years imprisonment. On December 30, 2010, Magistrate Judge Ronald L. Ellis issued a Report and Recommendation (the "Report") in which he recommended that the petition should be denied. Having reviewed the Report, the record, and Pena's objections, the Court agrees.
The basic facts of this case are set forth in Magistrate Judge Ellis's Report, familiarity with which is assumed. The court restates the facts only as they relate to the habeas petition and petitioner's objections to the Report.
Pena was arrested on May 20, 1993 and arraigned the next day. An indictment was filed in New York Supreme Court on June 30, 1993 and Pena was arraigned on siX counts of rape in the first degree, one count of sexual abuse in the first degree, and one count of sodomy in the first degree.
There followed a series of adjournments, some of whose details are in dispute. The Court is aware of these adjournments only based on an affidavit filed by the prosecutor in state court pre-trial proceedings. (See Aff. of A. Borgstedt, Mar. 8, 1995 ("Borstedt Aff.").) That affidavit avers that the prosecutor was, in many cases, not in possession of documentary evidence to support its version of the facts. The Court has no such evidence either. Nevertheless, the following facts regarding the adjournments do not appear to be in dispute except where otherwise indicated.
In proceedings on July 1, July 9, July 27, August 24, and September 21, 1993, the prosecution stated ready and the case was adjourned at Pena's request to prepare motions. (See id. ¶¶ 7-11.) On October 19, 1993, Pena filed a discovery motion. (See id. ¶ 12.) After finding that the prosecution had not turned over the materials requested, the then-presiding court found that the prosecution was not ready. However, the trial court hearing Pena's speedy trial motion did not charge such time to the prosecution and Pena does not challenge that finding here.
On November 3, 1993, the prosecution filed a written Statement of Readiness which indicated that it had provided Pena's trial counsel with all discovery. (See id. ¶13.) Pena filed various motions on November 9, 1993. On November 16, 1993, the prosecution requested additional time respond to the motions. (See id. ¶ 14.) The trial court charged this time to the prosecution. On December 7, 1993 and January 11, 1994, the case was adjourned for unspecified reasons. (See id. ¶ 15.)
The parties do appear to dispute both the reasons for and import of numerous adjournments in the following months of 1994. The prosecution's affidavit before the trial court avers that the prosecution was performing DNA testing between February and June 1994; that the parties consented to adjournments for that reason on February 1, March 1, April 5, May 3, May 17 and June 14, 1994; and that Pena's trial counsel conceded as much on August 16, 1994. (See id. ¶¶ 17-18.) However, the prosecution admitted that it did not have the minutes of proceedings on any of those dates and no such minutes are before the Court.
The case was further adjourned on August 16 and September 13, 1994. (See id.¶¶ 18-19.) The prosecution's affidavit avers that these adjournments were made at Pena's request or to accommodate his counsel's trial schedule. (See id.) Again, however, the prosecution admitted that it did not have the minutes of proceedings on any of those dates and no such minutes are before the Court. The affidavit details a series of further adjournments, but those do not appear to be in dispute and are not relevant here.
Pena's trial on (a) four counts of rape and sexual abuse based on an acting-in-concert theory as well as (b) two counts of rape and one of sodomy based on individual liability began on February 26, 1996.
The victim testified as follows. Early in the morning of May 2, 1993, she met a group of men at White Castle restaurant on Fordham Road in the Bronx. The men asked her to accompany them to a nightclub in Manhattan and she agreed. Soon after entering the men's car, the victim changed her mind and asked to be let out of the vehicle. The men refused and instead took her to an apartment where they were met by Pena.
In the apartment, the men began smoking marijuana and snorting cocaine. They asked the victim to join them, and when she refused, Pena forced her head downward to snort some cocaine. The men then began removing the victim's clothes despite her protests. Two men held the victim down and gagged her to prevent her from screaming while a third man raped her. Soon thereafter, each of the men who had been holding the victim down raped her as well. Pena stood by watching and speaking with the men who were raping the victim and holding her down.
At that point, Pena demanded that the other men leave the apartment. When they had done so, Pena insisted that the victim accompany him to the couch where he sexually assaulted her. Soon thereafter, someone knocked on the door. After refusing the victim's entreaties to answer it, Pena relented and permitted the victim to open the door where she was met by one of the men who had raped her. The man entered and raped her again while Pena pulled her hair and told her not to resist.
Pena then agreed to take the victim home. The two proceeded out of the building, Pena ordered two men to vacate a vehicle, and Pena drove the victim home. Before leaving the victim, Pena asked for and the victim gave him her telephone number. The victim reported the attack to her roommate and proceeded to the Fordham University security unit, which called emergency officials to take the victim to Our Lady of Mercy Hospital. Physicians there, one of whom testified at the trial, examined the victim and reported bruising and other internal injuries that were consistent with trauma. The victim then proceeded to a New York Police Department precinct where she reported the attack to Detective Michael Marchman, who also testified at trial.
In the days following the incident, Pena called the victim numerous times and left several messages for her on her answering machine and with her roommate. Working with Detective Marchman, the victim set up a meeting with Pena who was arrested when he arrived at the designated place.
On cross-examination, defense counsel sought to attack the victim's credibility on several grounds: that she had been celebrating her graduation while drinking heavily on the night of the alleged attacks; that she agreed to accompany four strangers at 3:30 a.m.; that she accepted a ride home from Pena and gave him her phone number; and that she did not report the incident to her sister or her brother-in-law.
To rebut the inference that the victim had acted inconsistently with having been raped, the prosecution, over defense counsel's objection, called an expert on Rape Trauma Syndrome. The expert did not examine the victim or testify regarding actions she had taken. Rather, the expert testified regarding whether certain actions were consistent with symptoms of Rape Trauma Syndrome. The defense did not present a case.
The jury was charged on March 13, 1996. Shortly after deliberations had begun, the jury returned a note as follows: "Judge Stackhouse, four of the jurors feel that a verdict cannot be concluded because of the personal opinion of one juror." (Tr. at 1096.) The trial court asked whether counsel wanted the court to give any instruction to the jury. (Id. at 1095). Defense counsel objected to any instruction. (Id.) The trial court nevertheless stated that the court "ha[d] to say something" because "[o]bviously there's some interaction going on there they should try to clean up." (Id.) Accordingly, the trial court declared its intention to "tell them to put their emotions, personal baggage on theside, try to reason with one another, that sort of thing. Not an Allen charge, just to calm down charge." (Id.) The trial court then instructed the jury as follows:
Let me just tell you that I think everybody should calm down. This is something that takes time and patience and we realize you have to listen to one another. You have to put your personal beliefs and your emotions and your sympathies and prejudices on the side. Get rid of that personal baggage. That doesn't have any place here. You are supposed to reason together. Use your logic, analyze the evidence conscientiously. Be analytical, be judges, not get into personalities, stuff like that. (Id. at 1096-97.) After giving that instruction, the trial court discharged the jury for the evening. (Id. at 1097.)
The jury resumed its deliberations the following day. Pena was not present and the trial court issued a warrant for his arrest. (Id. at 1098-99.) The jury requested to hear read back the testimony of the physician who examined the victim after the attack as well as a tape recording of Pena's message to the victim and her roommate's answering machine. (Id. at 1105.) Later that day, the jury acquitted Pena of all the individual liability counts but found him guilty of all the accomplice liability counts. (Id. at 1107-9.)
On July 15, 1996, the trial court sentenced Pena in absentia to an indeterminate term of imprisonment of twelve-and-one-half to twenty-five years on each rape count, two counts to run consecutively and the other two concurrently, as well as three-and-one-half to seven years on the sexual abuse count to run concurrently. Pena's sentence was not executed until April 1, 2004.
In December 2006, Pena, represented by counsel, appealed his conviction and sentence on the grounds that (1) the evidence at trial did not establish Bronx County as the proper venue for Pena's trial; (2) that there was insufficient evidence to support Pena's conviction; and (3) that his sentence was excessive. (See See Aff. of J. Marinaccio, Aug. 11, 2010 ("Marinaccio Aff."), Ex. 1.) On June 19, 2007, the Appellate Division affirmed Pena's conviction. See People v. Pena, 38 N.Y.S.2d 533 (1st Dep't 2007). The Court of Appeals of New York denied leave to appeal without opinion on August 31, 2007. See People v. Pena, 874 N.E.2d 759 (N.Y. 2007). The Court of Appeals declined to reconsider its decision. See People v. Pena, 878 N.E.2d 1026 (N.Y. 2007).
On July 9, 2008, Pena filed a petition for a writ of error coram nobis alleging ineffective assistance of appellate counsel. (Marinaccio Aff. Ex. 3.) New York Supreme Court denied that petition on January 26, 2009 and the Appellate Division affirmed that decision on July 29, 2009.
On September 9, 2009, Pena filed a second coram nobis petition again alleging ineffectiveness of appellate counsel. Specifically, Pena argued that his counsel was ineffective for failing to raise claims that (a) he was denied a speedy trial as required by New York law; (b) that the trial court erroneously permitted testimony by the prosecution's expert; (c) that the prosecution unfairly presented intent as an element of each of the crimes in the indictment; (d) that the trial court failed to instruct the jury to separately consider the evidence against each defendant; (e) that the trial court improperly employed hypothetical examples in its jury charges with respect to accomplice liability; (f) that the trial court did not instruct the jury that the indictment was not evidence; and (g) that the trial court gave an improper so-called Allen charge during deliberations. (See Marinaccio Aff. Ex. 5.) The Appellate Division denied that petition on May 13, 2010 and the Court of Appeals of New York denied leave to appeal on July 28, 2010. (See id. Exs. 7-8.)
Pena filed this petition for writ of habeas corpus on October 19, 2009.On December 6, 2010, Pena moved  for production of a full transcript of the pre-trial proceedings in his state court trial. That motion remains pending.
On December 30, 2010, Magistrate Judge Ellis issued the Report advising that the petition should be dismissed.Pena timely submitted objections to the Report on February 14, 2011.
A district court judge may designate a magistrate to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within ten days of service of the recommendation, any party may file written objections to the magistrate's report. Id. Upon review of those portions of the record to which objections were made, the district court judge 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).
Where timely objections are made, the court is required to "make a de novo determination of those portions of a report . . . to which objection is made." Id.; see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). But "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).
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"), "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant tothe judgment of a State court shall not be granted with respect to any claim that was adjudicated on the ...