United States District Court, S.D. New York
OPINION AND ORDER ADOPTED REPORT AND RECOMMENDATION
KATHERINE POLK FAILLA, District Judge.
Petitioner Rodney David ("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") on July 21, 2010, against Superintendent William Brown of the Eastern Correctional Facility in Napanoch, New York. In it, Petitioner seeks review of his New York State Supreme Court conviction for Criminal Possession of a Weapon in the Third Degree, in violation of New York Penal Law § 265.02(4). United States Magistrate Judge Frank Maas issued a Report and Recommendation dated January 7, 2014 (the "Report"), recommending that the Petition be denied. The Court has examined both the Report and Petitioner's January 28, 2014 Objection to that 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. #29). Nonetheless, a brief summary of the relevant facts is useful to this Court's analysis.
Petitioner was arrested on November 9, 2003, and charged with one count of Criminal Possession of a Weapon in the Second Degree, in violation of New York Penal Law § 265.03(2), and one count of Criminal Possession of a Weapon in the Third Degree, in violation of New York Penal Law § 265.02(4). (Report 2-4; Respondent's Opposition 2 (Dkt. #23)).
The prosecution's evidence at trial revealed that the New York City Police Department (the "NYPD") received a "911" call on November 9, 2003, in which the caller reported a man with a gun on St. Nicholas Avenue in upper Manhattan; police responded to the scene and saw Petitioner walking down the street. (Report 3-4). Petitioner then began running from the police. ( Id. ). A livery cab driver, who was permitted to testify using a pseudonym at trial,  saw Petitioner throw something behind a fence as Petitioner ran from the police. ( Id. ). Thereafter, Petitioner was apprehended; after searching the area identified by the livery cab driver, the officers located a handgun and several rounds of ammunition. ( Id. ). On July 15, 2005, after a jury trial, Petitioner was found guilty of Criminal Possession of a Weapon in the Third Degree. (Report 7).
Thereafter the People moved, pursuant to New York Criminal Procedure Law § 440.20, to have Petitioner adjudicated a discretionary persistent felony offender ("PFO"), and recommended the minimum statutory sentence of 15 years' to life imprisonment. (Report 7). On September 19, 2005, Petitioner was adjudicated a PFO and sentenced to an indeterminate term of 17 years' to life imprisonment. ( Id. ).
The Appellate Division unanimously affirmed Petitioner's conviction on February 9, 2010. People v. David, 894 N.Y.S.2d 406 (1st Dep't 2010). Petitioner was denied leave to appeal to the New York Court of Appeals by decision dated May 26, 2010. People v. David, 14 N.Y.3d 887 (2010).
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 report should be reviewed only for clear error. Walker v. Vaughan, 216 F.Supp.2d 290, 292 (S.D.N.Y. 2002) (internal quotation marks and citation omitted).
A. Petitioner's Grounds for Habeas Relief
Petitioner raises five grounds for habeas relief, namely, that (i) he was denied his Sixth and Fourteenth Amendment rights to a public trial because the courtroom was closed during the testimony of a witness who was permitted to testify under a pseudonym; (ii) he was denied his Fourteenth Amendment due process right to a fair trial because the prosecutor made allegedly improper remarks during summation; (iii) the trial court violated his Fourteenth Amendment due process rights by failing to consider his history and character when sentencing him as a PFO, on the basis that the PFO statutory scheme was unconstitutional, and that his sentence itself was unconstitutional; (iv) he was denied his Sixth Amendment right to confront an NYPD forensics expert at his trial; and (v) he received ineffective assistance ...