United States District Court, S.D. New York
Katheryne M. Martone, Esq., Legal Aid Society Criminal Appeals Bureau, New York, NY., Counsel for Petitioner.
Paul Bernard Lyons, Esq., New York State Office of the Attorney General, New York, NY., Counsel for Respondents.
MEMORANDUM & ORDER
WILLIAM H. PAULEY, III, District Judge.
Petitioner Cecil Richardson seeks a writ of habeas corpus under 28 U.S.C. § 2254 challenging his conviction for robbery in the second degree following guilty plea. On December 23, 2013, Magistrate Judge Dolinger issued a Report and Recommendation (the "Report") recommending that the writ of habeas corpus be denied and Richardson's petition be dismissed with prejudice. Richardson objected to the Report. For the following reasons, this Court adopts Magistrate Judge Dolinger's Report and dismisses Richardson's petition.
In August 2007, Richardson was tried before a jury in New York County, with Justice Wetzel presiding, on a charge of robbery in the first degree. On the second day of jury deliberations, one of the jurors ("Juror Three") failed to report. (Trial Tr., dated Aug. 30, 2007 ("Tr."), at 122 (available at Decl. of Paul B. Lyons, dated May 13, 2013 ("Lyons Decl."), Ex. A).) Justice Wetzel called Juror Three in an effort to persuade her to come to the courthouse. Juror Three explained to Justice Wetzel that she was in the last trimester of her pregnancy, felt ill, and did not believe she could report to the courthouse for even a few hours. She also advised Justice Wetzel that she did not see her condition changing in the next day. (Tr. at 121-22.) Justice Wetzel found Juror Three to be "very sincere and sympathetic." (Tr. 121-22.)
Justice Wetzel reported the substance of his conversation with Juror Three to counsel and asked whether Richardson would consent to proceed with eleven jurors. Defense counsel declined. Deliberations could not be adjourned because many of the remaining jurors had travel commitments for the upcoming Labor Day weekend. Justice Wetzel concluded that he had "no alternative... but to declare a mistrial." (Tr. at 122.) Defense counsel objected. (Tr. at 122.)
Richardson filed an Article 78 petition in the Appellate Division, seeking to bar a retrial. He asserted that mistrial was not required by manifest necessity and that any retrial would violate the Double Jeopardy Clause. (Pet'r's Art. 78 Pet., dated Oct. 17, 2007, at ¶ 15 (available at Lyons Decl. Ex. B).) The Appellate Division denied Richardson's petition without opinion. In re Richardson v. Wetzel, 849 N.Y.S.2d 188 (1st Dep't 2008). Richardson applied for reargument and sought leave to appeal. The Appellate Division denied both applications. Richardson v. Wetzel, M-1244 Ind. No. 1425/07 (1st Dep't Apr. 22, 2008) (available at Lyons Decl. Ex. R.); Richardson v. Wetzel, 859 N.Y.S.2d 393 (2008).
In 2009, Richardson pled guilty to one count of robbery in the second degree and was sentenced to seven years of imprisonment. (Sentencing Hr'g Tr., dated Mar. 11, 2009 (available at Lyons Decl. Ex. U).) He appealed his conviction to the First Department, again challenging Justice Wetzel's declaration of a mistrial. (Pet'r's Appellate Br. at 12 (available at Lyons Decl. Ex. V).) The Appellate Division affirmed the conviction, holding the double jeopardy claim was res judicata. People v. Richardson , 925 N.Y.S.2d 825 (1st Dep't 2011). The Court of Appeals denied leave to appeal. People v. Richardson, 945 N.Y.S.2d 652 (2012).
On January 30, 2013, Richardson filed this petition seeking habeas relief on double jeopardy grounds.
I. Standard of Review
This Court "may accept, reject, or modify, in whole or in part, the findings or recommendations" of a magistrate judge. 28 U.S.C. § 636(b)(1). This Court reviews de novo those parts of the Report to which objections are made and reviews the remainder for clear error on the face of the record. 28 U.S.C. § 636(b)(1); Nelson v. Smith , 618 F.Supp. 1186, 1189 (S.D.N.Y. 1985). In addition, when a party makes only generalized or conclusory objections, or simply reiterates his original arguments, courts review a magistrate ...