United States District Court, S.D. New York
OPINION AND ORDER ADOPTING REPORT & RECOMMENDATION
J. PAUL OETKEN, District Judge.
Pro se Petitioner Derrick Garcia filed a habeas corpus petition challenging his state court conviction. After reviewing Garcia's case, Magistrate Judge James L. Cott issued a Report and Recommendation ("Report") recommending that this Court deny Garcia's Petition and decline to issue a Certificate of Appealability. Garcia v. Lee, 10 Civ. 5287 (JPO) (JLC), 2012 WL 3822137 (S.D.N.Y. 2012). Garcia has filed objections to the Report. For the reasons that follow, Garcia's objections are overruled and the petition is denied.
A. Garcia's Claims
Garcia's Amended Petition (Dkt. No. 16) asserted eight distinct legal claims challenging his May 31, 2007 conviction in New York Supreme Court, Bronx County. Three of the seven claims were raised and exhausted on direct appeal from Garcia's conviction (collectively, the "direct appeal claims"). Garcia claims that the trial court violated his constitutional rights because (1) the court allowed testimonial evidence about an out-of-court photo identification; (2) the trial court interfered with and hampered jury deliberations by providing delayed responses to jury notes; and (3) the court denied a suppression motion.
Garcia's five remaining claims were previously raised and denied in a collateral Motion to Vacate Judgment under New York Criminal Procedure Law § 440.10 (collectively, the "collateral claims"). In the collateral claims, Garcia further alleges that his constitutional rights were violated at trial because: (1) the trial court failed to rule on a mistrial motion; (2) the prosecution used a photo from an illegal arrest; (3) the photo array was improperly suggestive; (4) the prosecution failed to properly produce Brady and Rosario materials; and, (5) the Defendant was provided ineffective assistance of counsel.
B. Report and Objections
The Report addressed each of Garcia's claims. The Report concludes that this Court is barred from reviewing the five collateral claims because a state court previously dismissed those claims on independent and adequate grounds of state procedural law. Report at 35-40; 2012 WL 3822137, at *18-21. The Report further concludes that the three direct appeal claims fail to meet the standard of review established for habeas petitions by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Accordingly, the Report recommended denial of the petition.
Garcia has objected to the Report (Dkt. No. 27). The Court interprets his carefully written Objections with the solicitude that must be afforded to pro se litigants. Diaz v. United States, 517 F.3d 608, 613 (2d Cir. 2008) ("[W]e liberally construe... pro se submissions to... raise the strongest arguments that they suggest....") (internal citations and quotations omitted). The bulk of Garcia's Objections focus on the photo identification. He argues that in-court testimony about the out-of-court identification was impermissible hearsay and that the photo was unconstitutionally suggestive. Garcia's Objections also restate his collateral claim that a photo from an unconstitutional arrest was wrongfully used at trial. In addition to these specific objections about the Report's application of the facts and law, Garcia also broadly objects to: (1) the Report's fact findings; (2) the Report's application of Bell v. Ercole, 368 Fed.Appx. 216 (2d Cir. 2010); (3) Magistrate Judge Cott's decision to accept Respondent's Opposition Brief; and, (4) Magistrate Judge Cott's decision to move forward without a complete record. The Court now considers Garcia's Petition in light of the Report and the Objections thereto.
A. Standard for Review of Reports and Recommendations
Where there are objections to a Magistrate Judge's Report, the District Court reviews the issues de novo. 28 U.S.C. § 636(b)(1)(C) ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."); see also Fed.R.Civ.P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.").
However, absent clear error, the District Court may adopt the Magistrate Judge's reasoning on issues to which objections were not raised. See Fed.R.Civ.P. 72(b), Adv. Comm. Notes (1983) ("When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation."); Borcsok v. Early, 299 F.Appx. 76, 77 (2d Cir. 2008) ("The District Court then reviewed the magistrate judge's report and recommendation for clear error and, finding none, adopted the report...."); cf § 636(b)(1)(A) ("A judge of the court may reconsider any pretrial matter... [where] the magistrate judge's order is clearly erroneous or contrary ...