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Darius Jean v. Gary Greene

December 15, 2011

DARIUS JEAN, PETITIONER,
v.
GARY GREENE, WARDEN, GREAT MEADOW CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Kimba W. Wood, U.S.D.J.:

OPINION AND ORDER

I. INTRODUCTION

Darius Jean ("Petitioner") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his November 21, 2002 conviction in County Court, Rockland County, for murder in the second degree, manslaughter in the first degree, assault, and endangering the welfare of a child. Petitioner raises four grounds for relief: (1) that the trial court's instructions to the jury regarding reasonable doubt impermissibly shifted the burden of proof and confused the jury; (2) that statements Petitioner made to police officers were involuntarily given and should have been suppressed; (3) ineffective assistance of trial counsel; and (4) ineffective assistance of appellate counsel.

In a Report and Recommendation (the "Report") dated May 10, 2011, familiarity with which is assumed, Magistrate Judge Smith recommended that the Court deny the petition. Petitioner filed timely objections to the Report. Pursuant to Federal Rule of Civil Procedure 72(b), the Court has conducted a de novo review of the Report and of Petitioner's objections.

For the following reasons, the Court adopts Magistrate Judge Smith's Report in full, and denies Petitioner's motion for a writ of habeas corpus.

II. BACKGROUND*fn1

On August 5, 2002, a jury convicted Petitioner of murder in the second degree, manslaughter in the first degree, assault, and endangering the welfare of a child. (Affirmation of Senior District Attorney Carrie A. Ciganek in Opposition to the Petition for Habeas Corpus ("Ciganek Aff.") ¶¶ 3, 10.) The trial court sentenced Petitioner to 25 years to life on the murder count, a concurrent term of imprisonment of 8 1/3 to 25 years on the manslaughter count, a concurrent term of imprisonment of 7 years on the assault count, and a concurrent term of imprisonment of 1 year on two counts of endangering the welfare of a child. (Id. ¶ 3.)

Petitioner timely moved to set aside the verdict pursuant to New York Criminal Procedure Law ("N.Y.C.P.L.") § 330.30(2) on the grounds of juror confusion; following a hearing, the trial court denied the motion. (Id. ¶ 11.) Petitioner then timely moved to vacate the conviction pursuant to N.Y. C.P.L. §440.10(1)(h) on the grounds that Petitioner's trial counsel was ineffective. The trial court denied the motion on August 18, 2003, and the Appellate Division, Second Department, denied Petitioner's motion for leave to appeal. (Id. ¶¶ 12-13.) On May 4, 2004, Petitioner's appellate counsel filed a direct appeal with the Appellate Division, Second Department. Following argument on the matter, the Appellate Division affirmed Petitioner's conviction. (Id. ¶¶ 14-15.) See People v. Jean, 13 A.D.3d 466 (N.Y. App. Div. 2004). Petitioner sought leave to appeal to the New York State Court of Appeals on January 18, 2005; the Court of Appeals denied the application. (Ciganek Aff. ¶ 17.) See People v. Jean, 5 N.Y.3d 764 (2005). On March 7, 2007, Petitioner filed a petition for a writ of error coram nobis in the Appellate Division, Second Department, claiming ineffective assistance of appellate counsel. (Ciganek Aff. ¶ 18.) In a decision dated September 18, 2007, the Appellate Division denied Petitioner's motion. (Id. ¶ 20.) See People v. Jean, 43 A.D.3d 1076 (N.Y. App. Div. 2007). Petitioner's motion to the New York Court of Appeals for leave to appeal was denied. (Ciganek Aff. ¶ 21.) See People v. Jean, 9 N.Y.3d 1007 (2007). On December 26, 2008, Petitioner filed the instant petition for a writ of habeas corpus.

III. DISCUSSION

A. Standard of Review of a Magistrate Judge's Report and Recommendation

A district court must review de novo those portions of a magistrate judge's report and recommendation to which timely written objections have been filed. See 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). The district court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." See 28 U.S.C. § 636(b)(1)(C). If neither party timely objects to the magistrate's report, the district court "need only satisfy itself that there is no clear error on the face of the record." Brito v. Phillips, 485 F. Supp. 2d 357, 360 (S.D.N.Y. 2007) (Holwell, J.) (internal citations and quotations omitted).

Petitioner filed objections to the Report's analysis of each of his four claims. The Court thus undertakes a de novo review of all four claims.

B. Overview of Applicable Law

Petitions for a writ of habeas corpus filed pursuant to 28 U.S.C. ยง 2254 are governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). AEDPA provides that a federal court may grant a writ of habeas corpus to a state prisoner only if the state court's adjudication of a particular claim on the merits resulted in a decision that was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or (2) was "based on ...


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