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Gega v. Ercole

United States District Court, Second Circuit

August 13, 2013

EDMIR GEGA, Petitioner,
v.
ROBERT E. ERCOLE and ERIC T. SCHNEIDERMAN, Respondents.

ORDER

ANALISA TORRES, District Judge.

Petitioner, Edmir Gega, represented by counsel, has objected to Chief Magistrate Judge Kevin N. Fox's June 24, 2013 Report and Recommendation ("the R&R") that recommends that the Court deny Gega's 28 U.S.C. § 2254 petition. Reviewing the parts objected to de novo, the Court adopts the R&R and denies Gega's petition.

BACKGROUND

Gega's petition for habeas, filed on November 4, 2011, made three allegations:

1. That the trial court denied Petitioner due process under the Fifth and Fourteenth Amendments to the United States Constitution by failing to suppress statements allegedly made by Petitioner which were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966);
2. That Petitioner was denied effective assistance of counsel at his trial because his attorney, among other things: (a) failed to object to trial in a county without jurisdiction over the offense (which occurred in a different county), and (b) failed to obtain Petitioner's consent to waive objection to jurisdictional defects; and,
(3) That the trial court denied Petitioner a fair trial and due process, under the Sixth and Fourteenth Amendments to the United States Constitution, when he (a) was tried in Westchester County, New York, for crimes that occurred in Rockland County, New York, and (b) was denied a mistrial after all the properly indicted charges were dismissed by the trial court.

Pet. 1-2.

The R&R recommends denial of the petition, because none of Gega's three arguments justified relief. See Gega v. Ercole, No. 11 Civ. 7892, 2013 WL 3185557 (S.D.N.Y. June 24, 2013). First, Magistrate Judge Fox concludes that Gega failed to show that the Appellate Division's holding that Gega waived his Miranda rights is contrary to or involves an unreasonable application of clearly established federal law. Id. at *12-13. Second, Magistrate Judge Fox concludes that Gega's ineffective assistance of trial counsel claim "is unexhausted" and "cannot be deemed exhausted, " because Gega did not raise it on a New York Criminal Procedure Law Section 440.10 collateral attack. Id. at *14. Additionally, Magistrate Judge Fox concludes that the Appellate Division's alternate merits holding on this issue-"To the extent that the claim may be reviewed, defense counsel provided meaningful representation, " People v. Gega, 904 N.Y.S.2d 716, 719 (App. Div. 2010)-"was neither contrary to nor involved an unreasonable application of clearly established federal law, under 28 U.S.C. § 2254(d)(1)." Gega, 2013 WL 3185557, at * 14. Third, Magistrate Judge Fox concludes that Gega's fair trial and due process claims are procedurally barred under state law and that Gega failed to show cause and prejudice because he did not raise those claims in his direct appeal in state court nor explain to the federal court why he did not. Id. at * 15.

On July 22, 2013, Gega made one objection to Magistrate Judge Fox's recommendation on each claim. As to the Miranda claim, Gega argues that his petition was premised on his "state of mind, " as required by Supreme Court precedent, and that the Appellate Division failed to address his state of mind. Objections 1-3, July 22, 2013, ECF No. 23. As to the ineffective assistance of trial counsel claim, Gega argues that it was the fault of his appellate counsel that he did not bring a New York Criminal Procedure Law Section 440.10 collateral attack on Gega's trial counsel's competence for years following the Appellate Division's ruling indicating that he should. See id. at 4-5; see also Gega, 904 N.Y.S.2d at 719. Finally, as to the fair trial and due process claims, Gega again argues that the failure to exhaust is appellate counsel's fault. Objections 3-4.

STANDARD OF REVIEW

1. Review of a Magistrate Judge's Report and Recommendation

A district judge must "make a de novo determination of those portions of the [magistrate judge's] report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see also Fed.R.Civ.P. 72(b) ("[A] party may serve and file specific written objections to the proposed findings and recommendations.... The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."). However, a district court need not consider arguments raised in a party's objections if the arguments were not raised before the magistrate. See, e.g., McEachin v. Walker, 147 F.Appx. 223, 224 (2d Cir. 2005) (summary order); Walker v. Stinson, 205 F.3d 1327, 2000 WL 232295, at *2 (2d Cir. 2000) (unpublished table decision).

Although there is no statutory standard of review for parts of report and recommendation that are not objected to, Thomas v. Arn, 474 U.S. 140, 149 (1985), courts in this District will adopt unobjected-to "portions of a report and recommendation" only when they "are not clearly erroneous or contrary to law, " see, e.g., Phoenix Ins. Co. v. APF Fire Prot., Inc., No. 08 Civ. 7935, 2012 WL 3834743, at *1 (S.D.N.Y. Aug. 27, 2012) (quoting Credit-Based Asset Servicing & Securitization, LLC v. First Consol. Mortg. Co., No. 08 Civ. 7757, 2010 WL 2942653, at *1 ...


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