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Page v. Conway

United States District Court, S.D. New York

May 8, 2014

KENNETH PAGE, Respondent,
JAMES CONWAY, Defendant.


DEBORAH A. BATTS, District Judge.

On May 3, 2013, United States Magistrate Judge Kevin Nathaniel Fox issued a Report and Recommendation ("Report"), recommending that the Petitioner's ("Petitioner" or "Page") Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 be denied. (Report at 27.) For the reasons set forth below, Judge Fox's May 3, 2013 Report and Recommendation shall be ADOPTED in its entirety. Accordingly, the Petition for a Writ of Habeas Corpus is DENIED.


The facts underlying Page's convictions are set forth in detail in the Report and will not be repeated here.

On August 9, 2013, Petitioner filed a timely Objection to the Report. (ECF No. 38.) In the Objection, Petitioner makes a claim of ineffective assistance of counsel, alleging that trial counsel (1) failed to preserve a claim based on the sufficiency of evidence; (2) failed to secure a missing witness jury instruction; (3) failed to request additional time to investigate; (4) failed investigate the Parole Officer and other witnesses; and (5) failed to secure a Rosario violation. (Obj. at 1-2.) On September 18, 2013, the Respondent filed a letter, which indicated that it would neither file its own Objection to the Report nor a response to Petitioner's Objections. (Resp't Letter, Sept. 18, 2013.)


A. Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), the Court must afford substantial deference to a state court's decision when a federal constitutional claim has been adjudicated on the merits. See 28 U.S.C. § 2254(d); see also Sellan v. Kuhlman , 261 F.3d 303, 311 (2d Cir. 2001). So long as a state court's decision is not manifestly unreasonable, its factual findings are presumed to be correct, a presumption that can only be successfully rebutted upon a showing of "clear and convincing evidence." 28 U.S.C. § 2254(e)(1). The District Court will not accept an unreasonable application of clearly established federal law; such an application will result in a state court's legal conclusions being overturned. Lockyer v. Andrade , 538 U.S. 63, 75 (2003) ("[U]nder the unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case.'") (quoting Williams v. Taylor , 529 U.S. 362, 413 (2000)); Wiggins v. Smith , 539 U.S. 510, 520-21 (2003) (explaining the application "must have been more than incorrect or erroneous" but rather "objectively unreasonable") (quoting Williams , 529 U.S. at 409). Under the ADEPA, a federal law is clearly established if the United States Supreme Court has resolved the issue on the merits and issued a holding at the time of a state court's decision. Carey v. Musladin , 549 U.S. 70, 74 (2006).

The District Court 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). The 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).

The 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)(C). "To the extent, however, that a party makes only conclusory or general arguments, or simply reiterates the original arguments, the Court will review the Report strictly for clear error." Indymac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07 Civ. 6865 , 2008 U.S. Dist. LEXIS 92267, at *2 (S.D.N.Y. Nov. 3, 2008); see Ortiz v. Barkley , 558 F.Supp.2d 444, 451 (S.D.N.Y. 2008) ("Reviewing courts should review a report and recommendation for clear error where objections are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition.") (citation and internal quotation marks omitted). After conducting the appropriate levels of review, the 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)(C).

The objections of pro se parties are "generally accorded leniency and should be construed to raise the strongest arguments that they suggest." Howell v. Port Chester Police Station, No. 09 Civ. 1651, 2010 U.S. Dist. LEXIS 23852, at *4 (S.D.N.Y. Mar. 15, 2010) (citation omitted). "Nonetheless, even a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument." Id . (quoting Pinkney v. Progressive Home Health Servs., No. 06 Civ. 5023 , 2008 U.S. Dist. LEXIS 55034, at *2-3 (S.D.N.Y. July 21, 2008) (internal quotations marks omitted)).

B. Petitioner's Objections to the Report.

Petitioner objects to the Report alleging that he was denied effective assistance of trial counsel in violation of the Sixth Amendment of the United States Constitution. (Obj. at 1.) The objection is based on Petitioner's assertions that his trial counsel: (1) failed to preserve a legal sufficiency of evidence claim; (2) failed to secure a missing witness jury instruction; (3) failed to properly secure the Rosario violation; (4) failed to request additional time to conduct a proper investigation; (5) failed to investigate parole officer Volnica Tamola; and (6) failed to investigate other witnesses and critical evidence. (Obj. at 1-2.)

The Court evaluates ineffective trial counsel challenges according to the standard established in Strickland v. Washington , 466 U.S. 668, 669 (1984). The Strickland standard requires Petitioner to demonstrate that assistance of "counsel was objectively unreasonable, " and that such representation caused actual "prejudice." Smith v. Robbins , 528 U.S. 259, 285 (2000) (citing Strickland , 466 U.S. at 687-88). Prejudice requires that Petitioner "show a reasonable probability that, but for his counsel's unreasonable failure..., he would have prevailed on his appeal." Id . (citing Strickland , 466 U.S. at 694). However, "[t]here is a strong presumption that counsel's performance falls within the range of reasonable professional assistance, " and the Court is cognizant of the potential "distorting effect of hindsight... [and] the difficulties inherent in making [such an] evaluation." Strickland , 466 U.S. at 669. See Yarborough v. Gentry , 540 U.S. 1, 8 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight.") An ineffective assistance of counsel claim made in a habeas petition, moreover, is evaluated "[u]nder the ...

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