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Bravo v. Unger

United States District Court, S.D. New York

January 16, 2014

RENEE P. BRAVO, Petitioner,
Superintendent DAVID M. UNGER, Respondent.



Before the Court is Magistrate Judge Paul E. Davison's Report and Recommendation ("R&R"), dated October 21, 2013 (Doc. #31), on petitioner Renee P. Bravo's petition for a writ of habeas corpus. Judge Davison recommended the Court dismiss the petition without prejudice.

For the following reasons, the Court adopts the R&R. Petitioner's request for leave to amend his petition is DENIED, and the petition is DISMISSED without prejudice.

Familiarity with the factual and procedural background of this case is presumed; the Court, therefore, recites only those facts necessary for resolution of petitioner's objections.

I. Standard of Review

A district court reviewing a magistrate judge's report and recommendation "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). Parties may raise objections to the magistrate judge's report and recommendation, but they must be "specific[, ] written, " and submitted within fourteen days after being served with a copy of the recommended disposition, Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1), or within seventeen days if the parties are served by mail. See Fed.R.Civ.P. 6(d).

When a party submits a timely objection to a report and recommendation, the district court reviews the parts of the report and recommendation to which the party objected under a de novo standard of review. 28 U.S.C. § 636(b)(1)(C); See also Fed.R.Civ.P. 72(b)(3). The district court may adopt those portions of the recommended ruling to which no timely objections have been made, provided no clear error is apparent from the face of the record. See Wilds v. United Parcel Serv., Inc. , 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003). The clearly erroneous standard also applies when a party makes only conclusory or general objections, or simply reiterates his original arguments. See Ortiz v. Barkley , 558 F.Supp.2d 444, 451 (S.D.N.Y. 2008). As petitioner is proceeding pro se, this Court "will read [his] supporting papers liberally, and... interpret them to raise the strongest arguments that they suggest.'" Id . (quoting Burgos v. Hopkins , 14 F.3d 787, 790 (2d Cir. 1994)).

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), petitioner is entitled to habeas corpus relief only if he can show "the state court unreasonably' applied law as established by the Supreme Court in ruling on petitioner's claim, or made a decision that was contrary to' it." Cousin v. Bennett , 511 F.3d 334, 337 (2d Cir. 2008) (quoting 28 U.S.C. § 2254(d)(1)). The state court's determination of factual issues is presumed correct, and petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

II. Petitioner's Objections

Petitioner, proceeding pro se, timely filed objections to Judge Davison's R&R. (Doc. #32). Petitioner primarily objects to Judge Davison's ultimate recommendation that the Court dismiss the petition without prejudice without granting petitioner another opportunity to amend his petition.

A. Relevant Procedural Background

Petitioner filed his habeas petition on July 26, 2010. (Doc. #2). By Order dated June 13, 2012, Judge Davison determined the petition was a "mixed petition, " as it contained two exhausted claims and one unexhausted claim. (Doc. #20). Judge Davison specifically identified as unexhausted petitioner's ineffective assistance of counsel claim that his trial attorney misadvised him about his sentencing exposure-namely, telling him incorrectly he faced a 120-year sentence-and pressured him into pleading guilty. In support of this conclusion, Judge Davison observed that although petitioner had raised his specific ineffective assistance of counsel argument on direct appeal, the Appellate Division did not review those allegations because they concerned matters outside the record, see People v. Bravo , 899 N.Y.S.2d 280, 281, 2010 N.Y. Slip Op. 02962 (2d Dep't 2010); and, although petitioner had presented a claim relating to the adequacy of his attorney's advice concerning his guilty plea in a subsequent motion filed under N.Y.C.P.L. § 440.10 (the "First Section 440.10 Motion"), petitioner had failed to appeal the trial court's denial of that motion.

When presented with a mixed habeas petition with both exhausted and unexhausted claims, a federal court may (i) stay the proceedings and hold the petition in abeyance to allow the petitioner to exhaust the unexhausted claims in state court, (ii) grant the petitioner leave to amend the petition and excise any unexhausted claims, (iii) dismiss the entire petition without prejudice, or (iv) review each claim and dismiss the petition if the claims are plainly meritless. See 28 U.S.C. § 2254(b)(2); Rhines v. Weber , 544 U.S. 269, 277-78 (2005); Zarvela v. Artuz , 254 F.3d 374, 378-82 (2d Cir. 2001); Reyes v. Morrissey, 2010 WL 2034531, at *9 (S.D.N.Y. Apr. 21, 2010)[1].

Thus, having determined petitioner's ineffective assistance of counsel claim was not plainly meritless, Judge Davison directed petitioner to either: (i) file a motion pursuant to N.Y. C.P.L. § 440.10 in New York state court in order to exhaust his off-the-record ineffective assistance of counsel claim and provide a copy of that motion to Judge Davison, or (ii) inform Judge Davison in writing he will not seek to exhaust the claim and instead voluntarily dismiss the claim from his petition. (Doc. #20). Judge Davison advised ...

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