United States District Court, S.D. New York
ADOPTION OF REPORT AND RECOMMENDATION
DEBORAH A. BATTS,
On March 29, 2013, United States Magistrate Judge Frank Maas issued a Report and Recommendation ("Report"), recommending that pro se Petitioner's Petition for a Writ of Habeas Corpus be denied. (Report at 1, 33.) On April 23, 2013, Petitioner filed an Objection to the Report. Respondent submitted an untimely letter on December 10, 2013. For the reasons set forth below, the Court APPROVES, ADOPTS, and RATIFIES the Report in its entirety. Accordingly, the Petition is DENIED.
The background and Magistrate Judge's findings in this case are set out in great detail in the Report. Familiarity with the Report is assumed, and this Order recounts the facts only to the extent necessary for the resolution of Objections thereto.
Petitioner's first trial in the shooting death of Thomas Cabrera Jr. resulted in a mistrial. In a second trial, a jury found Petitioner guilty of murder in the second degree. During trial, four witnesses testified about Petitioner's whereabouts when the murder occurred. While there were inconsistencies among them about what the gunman was wearing and the path the gunman took, two witnesses identified Petitioner in a lineup as the shooter.
Before the second trial began, defense counsel indicated that he would not contest rulings made by the judge in the previous trial, including testimony regarding gangs. Mid-trial, however, defense counsel objected to such testimony; the trial court consequently conducted an extensive hearing regarding the proposed gang-related testimony, resulting in the court deciding to rule on such objections on a case-by-case basis. The trial court allowed testimony regarding gang signals and colors. Witnesses testified about Petitioner and the victim being members of rival gangs. In particular, evidence was introduced that Petitioner was wearing red while the victim was wearing yellow, that Petitioner once greeted people by displaying gang hand signs, and that, months prior to the murder, Petitioner refused to get into an elevator when the victim was already in it. During the jury charge, the trial court gave limiting instructions regarding the gang testimony.
After Petitioner filed the instant Petition, his appellate counsel filed a motion in New York state court seeking to vacate his conviction on grounds of newly-discovered evidence. Three witnesses, Witnesses A, B, and C, alleged someone else shot the victim. The state court, however, determined that their testimony was not credible, explaining its rationale at length. Because of their credibility and the evidence presented at the second trial, the state court determined that their testimony was not likely to change the verdict if a new trial were granted and thereby denied Petitioner's motion.
A. Standard of Review for a Report and Recommendation
A district judge may designate a magistrate judge to submit proposed findings of fact and recommendations for dispositive motions and prisoner petitions. 28 U.S.C. § 636(b)(1)(B); accord Fed.R.Civ.P. 72(b)(1). "Within fourteen days after being served with a copy [of a magistrate judge's report and recommendation], a party may serve and file specific written objections to the proposed findings and recommendations." Fed.R.Civ.P. 72(b)(2); accord 28 U.S.C. § 636(b)(1)(C). A court may adopt those portions of the report to which no timely objection has been made, as long as there is no clear error on the face of the record. DiPilato v. 7-Eleven, Inc. , 662 F.Supp.2d 333, 339 (S.D.N.Y.2009).
A district court must review de novo "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However, "to the extent that the party makes only conclusory or general arguments, or simply reiterates the original arguments, the Court will review the Report strictly for clear error." DiPilato , 662 F.Supp.2d at 339 (internal quotation marks and alterations omitted). After conducting the appropriate levels of review, a court 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).
"It is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest.'" Triestman v. Fed. Bureau of Prisons , 470 F.3d 471, 474 (2d Cir. 2006) (citation omitted). Nonetheless, courts generally do not allow pro se parties to litigate matters in their objections that were not presented to the magistrate judge. See, e.g., Sidney v. Caron, No. 09 Civ. 1326, 2012 WL 4380392, at *6 (N.D.N.Y. Sept. 25, 2012); Odom v. Kerns, No. 99 Civ. 10668 , 2008 WL 2463890, a *5 (S.D.N.Y. June 18, 2008); Morgan v. Barnhart, No. 04 Civ. 6024 , 2005 WL 2338709, at *1 (S.D.N.Y. 2005).
B. Petitioner's Objections to the Report
Petitioner makes four objections to the Report, namely that the lineup was unduly suggestive, gang-related testimony was improperly admitted, he was convicted despite an insufficiency of evidence, and he is actually innocent. The Court has reviewed the ...