United States District Court, S.D. New York
ALISON J. NATHAN, District Judge.
Petitioner Pablo Rodriguez seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 25, 2013, Magistrate Judge Pitman submitted a Report and Recommendation ("R & R") recommending that the Court deny the petition. Dkt. No. 27. Petitioner's objections were docketed on January 8, 2014. The Court adopts Judge Pitman's report and recommendation and denies the petition.
This opinion assumes familiarity with the facts of this case, which are described in detail in the R & R. Petitioner was convicted at trial in New York County Supreme Court of one count of engaging in a course of sexual conduct against a child in the first degree. He thereafter pursued in state court a direct appeal, a motion to vacate, and a petition for a writ of error coram nobis, before filing the present petition for a writ of habeas corpus on March 22, 2012. Petitioner brings numerous claims, including ones made in state court and incorporated by reference. Because "pro se complaints must be liberally construed, " the court will treat each of these arguments as incorporated. Williams v. Kullman, 722 F.2d 1048, 1050 (2d Cir. 1983). The Petition was fully submitted to Magistrate Judge Pitman, who issued a report and recommendation on October 25, 2013. Petitioner filed objections on January 8, 2014.
II. Standard of Review
In this case, the Court exercised its authority to designate a magistrate judge to submit a report and recommendation describing the facts of the case and making a recommendation about whether to grant the habeas corpus petition. 28 U.S.C. § 636(b)(1)(B). The parties have been given the opportunity to file objections to the report and recommendation. Id. § 636(b)(1)(C). The Court reviews de novo those aspects of the R & R to which a party has submitted "specific, written objections, " Fed.R.Civ.P. 72(b); accord § 636(b)(1)(C), including specific written objections that reiterate arguments made before the magistrate judge. See Watson v. Geithner, 11 Civ. 9527 (AJN), 2013 U.S. Dist. LEXIS 141009, at *5-7 (S.D.N.Y. Sept. 27, 2013) (noting that support for the use of a clear error standard of review for objections that "simply reiterate... original arguments... is arguably lacking in the language of both 28 U.S.C. § 636(b)(1)(C) and Rule 72(b)(2)"). The Court reviews the R & R only for clear error, however, when the objections are not specific, but "conclusory or general." Chebere v. Phillips, 04 Civ. 296 (LAP), 2013 U.S. Dist. LEXIS 139728, at *7 (S.D.N.Y. Sept. 18, 2013).
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2241 et seq., a federal court reviewing a petition for a writ of habeas corpus based on a claim that was adjudicated on the merits in state court "must give the state court's adjudication a high degree of deference." Yung v. Walker, 341 F.3d 104, 109 (2d Cir. 2003). Specifically, the Court may not issue the writ unless the state court adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d)(l)-(2).
A. Petitioner's Claims and Objections
Construed liberally, Petitioner raises nine claims in his petition for a writ of habeas corpus. Petitioner argues that:
1. the trial court's failure to give a missing witness instruction to the jury violated his right to due process;
2. the prosecution's summation violated his right to a fair trial by shifting the burden of proof;
3. his conviction is based upon legally insufficient evidence;
4. the prosecution's failure to call an eyewitness violated his right to cross-examination;
5. the trial court's failure to subpoena the prosecution's witness violated his right to cross-examination;
6. the trial court's exclusion of evidence of third-party culpability violated his right to a fair trial;
7. the trial court's improper jury charge violated his right to due process;
8. his trial counsel provided ineffective assistance by
a. failing to consult or retain a psychological expert; and
b. impeaching [the complaining witness] with a transcript of her grand jury testimony rather than a videotaped version of that testimony;
9. his appellate counsel provided ineffective assistance to petitioner by failing to argue on appeal that
a. the trial court failed to comply with N.Y.Crim. Proc. L. § 310.30 during jury deliberations;
b. the trial court gave an improper jury charge;
c. [the complaining witness]'s testimony given while covering her face violated petitioner's rights ...