United States District Court, S.D. New York
OPINION AND ORDER REPORT AND RECOMMENDATION
KATHERINE POLK FAILLA, District Judge.
Petitioner Donnell Alston ("Petitioner"), who is proceeding pro se and is currently incarcerated, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the "Petition" or "Pet.") on June 24, 2013, against Superintendent Steven Racette of the Great Meadow Correctional Facility in Comstock, New York. In it, Petitioner seeks review of his New York State Supreme Court conviction for Robbery in the First Degree, in violation of New York Penal Law § 160.15(4). United States Magistrate Judge James C. Francis IV issued a Report and Recommendation dated May 22, 2014 (the "Report"), recommending that the Petition be denied. The Court has considered both the Report and Petitioner's July 7, 2014 Objection to the Report (the "Objection" or "Obj."), and finds that the Report should be adopted in full. Accordingly, the Petition is denied.
The facts and procedural history of the instant action are set forth in the Report. ( See Dkt. #16). Nonetheless, a brief summary of the relevant facts is useful to this Court's analysis.
Petitioner was arrested on May 11, 2006, in connection with a November 26, 2005 robbery of a retail store named Funtiques. (Report 1-3). Petitioner was identified as a suspect based upon fingerprints lifted from the scene, as well as an eyewitness identification at a line-up. ( Id. at 3). Trial commenced on April 18, 2007, and a mistrial was declared on April 20, 2007, after the jury was unable to reach a unanimous verdict. ( Id. ). A second jury trial began on September 24, 2007, after which Petitioner was found guilty of Robbery in the First Degree, in violation of New York Penal Law § 160.15(4).
The prosecution's evidence was as follows: Amy Spiegel was the sole employee on duty at Funtiques on November 26, 2005. A man whom Spiegel identified at trial as Petitioner visited the store on two separate occasions that day to inspect jewelry for his wife; he gave his name as "Donnell." (Report 1-3). The man left the store, and returned a third time to look again at the jewelry. ( Id. ). At that time, the only other people in Funtiques were Spiegel and a customer named Christine Peng. ( Id. at 3, 6). Spiegel testified that Petitioner grabbed some jewelry, ordered her to get down on the ground, and "pushed forward" what appeared to be a gun. ( Id. at 3).
The prosecution introduced evidence from a fingerprint analyst with the New York City Police Department; the analyst testified that the fingerprints she had lifted from the jewelry case, which were later tied to Petitioner, were "fresh." (Report 5-6). The trial court judge instructed the jury to disregard the officer's testimony to the extent it suggested the fingerprints were left recently, though it did not declare a mistrial. ( Id. ). Peng also testified, but was not asked to identify Petitioner as the suspect at trial, nor was she cross-examined by the defense. ( Id. at 6). Petitioner was subsequently found guilty. On April 1, 2008, Petitioner was adjudicated a persistent felony offender pursuant to New York Penal Law § 70.10, and sentenced an indeterminate term of 20 years' to life imprisonment. ( Id. at 7).
At a subsequent hearing, defense counsel reported to the trial court that Peng had contacted counsel to inform her that Peng did not believe Petitioner was the man she had seen in Funtiques that day. (Report 6-7). Petitioner moved to vacate his sentence on May 18, 2009, pursuant to New York Criminal Procedure Law § 440.10, arguing that Peng's statements constituted newlydiscovered evidence and that he had been deprived of the effective assistance of counsel as a result of his prior counsel's failure to investigate. ( Id. at 8). The trial court held a hearing thereafter, at which Peng testified that during the attempted robbery, she had seen only three quarters of the perpetrator's face for a moment, and had done so only after he had ordered her to get down on the floor. ( Id. ).
Petitioner's § 440.10 motion was ultimately denied on September 24, 2010. (Report 9). In an 18-page opinion, the state trial court found that Peng's testimony did constitute newly-discovered evidence, and that trial counsel - though remiss in his failure to investigate - had not been constitutionally ineffective. ( Id. ). The court also determined that Peng's testimony did not create a probability of acquittal, in light of her admittedly limited opportunity to view the perpetrator's face, in contrast with Spiegel's opportunity to see Petitioner on the day of the robbery for an "extremely long period of time." ( Id. at 9-10). Moreover, the court noted, Spiegel testified that Petitioner had identified himself as "Donnell" prior to returning to the store for the robbery. ( Id. ).
Petitioner sought leave to appeal the court's ruling on the § 440.10 motion, and on November 23, 2010, the Appellate Division granted his application and directed that the appeal be consolidated with Petitioner's direct appeal. (Report 11). The Appellate Division unanimously affirmed Petitioner's conviction and the denial of his § 440.10 motion on January 5, 2012. People v. Alston, 936 N.Y.S.2d 41, 42 (1st Dep't 2012). Petitioner was denied leave to appeal to the New York Court of Appeals by decision dated March 26, 2012. People v. Alston, 944 N.Y.S.2d 483 (2012).
THE STANDARD OF REVIEW
A court may accept, reject, or modify, in whole or in part, the findings or recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). A court may accept those portions of a report to which no "specific, written objection is made, " as long as the factual and legal bases supporting the findings are not clearly erroneous. See Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y. 1997) (quoting Fed.R.Civ.P. 72(b)); see also Thomas v. Am, 474 U.S. 140, 149 (1985). A magistrate judge's decision is clearly erroneous only if the district court is "left with the definite and firm conviction that a mistake has been committed." Easley v. Cromartie, 532 U.S. 234, 235, 242 (2001) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
To the extent that a petitioner makes specific objections to a magistrate judge's findings, the reviewing court must undertake a de novo review of the objections. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Pro se filings are read liberally and interpreted "to raise the strongest arguments that they suggest." Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (internal quotation marks and citation omitted). However, where objections are "conclusory or general, " or where the petitioner "simply reiterates his original arguments, " the ...