ORDER ADOPTING REPORT & RECOMMENDATION
PAUL A. CROTTY, District Judge.
Pro se Petitioner Craig Mangum objects to Magistrate Judge Frank Maas's Report and Recommendation ("R&R") that his petition for a writ of habeas corpus be denied. Mangum challenges his conviction after a jury trial for robbery in the first degree because the judge refused to charge the jury that it could convict him of the lesser-included offense of robbery in the third degree. For the reasons set forth below, the Court adopts the Magistrate Judge's R&R and denies Mangum's petition.
The Court adopts and presumes familiarity with the R&R's statement of the facts (see ECF 11) but notes the following for purposes of addressing Mangum's objections.
The sole witness to the charged crime was the victim, David Lloyd, who was Mangum's supervisor at a construction site. Lloyd gave Mangum poor reviews before Mangum was fired. Lloyd testified that Mangum returned to the construction site one evening-after most other workers had left-and robbed him using what appeared to be a nine millimeter handgun. In particular, Lloyd testified that Mangum put a gun to his head and forced him to completely undress because Lloyd denied having any money on his person. Mangum obtained $1, 400 by searching Lloyd's clothes. There was no defense case. Instead, the defense chose to attack Lloyd's credibility on the basis of his criminal history and drug use, as well as alleged inconsistencies in his testimony. (Trial Tr. 52-56.) No firearm was received in evidence.
Mangum's counsel requested that the trial judge charge the jury that it could convict Mangum of the lesser-included offense of third-degree robbery. The trial judge denied Mangum's request, holding that such an instruction was required only if there is a "reasonable view of the evidence" that the defendant committed the lesser offense but not the greater. Trial Tr. 170; see N.Y. Grim. Proc. Law § 300.50(1), (2). The judge reasoned that since there was no evidence of force absent the firearm, "[e]ither the jury believes [Lloyd's testimony' or they don't believe anything." (Trial Tr. 171.) The judge explained further that because two witnesses testified that Lloyd appeared sober after the incident, the jury "would have to then believe that [Lloyd] just decided for some unknown reason to take all [his] clothing off to exaggerate that [he] had just been robbed. That almost calls for a bizarre conclusion, certainly the opposite of reasonable." ( Id. 171-72.)
The Appellate Division summarily denied Mangum's appeal of this decision, reasoning that Lloyd "was certain that defendant displayed what appeared to be a pistol, and there was no identifiable record basis upon which the jury might have reasonably differentiated between segments of [Lloyd]'s testimony." People v. Mangum, 930 N.Y.S.2d 445 (App. Div. 1st Dep't 2011). The New York Court of Appeals subsequently denied Mangum leave to appeal.
Judge Maas's R&R recommends denying the petition because the refusal to give the requested jury instruction did not violate either clearly established federal law or New York state law. Mangum objects to the R&R on three grounds: (1) the failure to give the jury instruction; (2) Lloyd's sobriety and therefore, credibility was not established with a blood test at the scene of the crime; and (3) Mangum's sentence is excessive.
I. Standards of Review
A federal district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by [a] magistrate judge." 28 U.S.C. § 636(b)(1)(C). The Court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which [a timely] objection is made." Id. The Court, however, "may adopt those portions of the Report to which no objections have been made and which are not facially erroneous." La Torres v, Walker, 216 F.Supp.2d 157, 159 (S.D.N.Y. 2000). "The objections of parties appearing pro se are generally accorded leniency' and should be construed to raise the strongest arguments that they suggest.' Rickett v. Orsino, No. 10-CV-5152, 2013 WL 1155354, at *1 (S.D.N.Y. Mar. 21, 2013).
A federal district court has no jurisdiction to conduct an appellate review of a state-court judgment. Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 283 (2005). Nonetheless, a state prisoner may seek relief by petitioning a federal court for a writ of habeas corpus on the basis that his federal rights were violated. 28 U.S.C. § 2254(a).
Federal habeas corpus relief is limited by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). Pub. L. No. 104-132, § 104, 110 Stat. 1214 (1996) (codified in part at 28 U.S.C. § 2254). A petition may be granted only where the state-court decision (1) "was 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 an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. In addition, "a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). Thus, the habeas statute mandates a "highly deferential ...