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Nelson v. People

United States District Court, S.D. New York

September 10, 2014

TYRONE NELSON, Petitioner,
v.
PEOPLE OF NEW YORK, Respondent.

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

KATHERINE POLK FAILLA, District Judge.

Petitioner Tyrone Nelson ("Petitioner"), who is proceeding pro se and is currently incarcerated at the Wallkill Correctional Facility in Wallkill, New York, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 17, 2010 (the "Petition"), against the People of New York. In it, Petitioner seeks review of his New York State Supreme Court convictions for three counts of Aggravated Criminal Contempt and one count of Criminal Mischief in the Fourth Degree, in violation of New York Penal Law §§ 215.52(1) and 145.00(1), respectively. United States Magistrate Judge Henry B. Pitman issued a Report and Recommendation dated June 18, 2014 (the "Report"), recommending that the Petition be denied. The Court has examined both the Report and Petitioner's July 21, 2014 Objection to that Report (the "Objection"), and finds that the Report should be adopted in full. Accordingly, the Petition is denied.[1]

BACKGROUND

The facts and procedural history leading up to the Petition are set forth in the Report. ( See Dkt. #31). Nonetheless, a brief summary of the relevant facts is useful to this Court's analysis.

On July 11, 2007, a grand jury indicted Petitioner on one count of Second Degree Assault, three counts of Aggravated Criminal Contempt, and one count of Criminal Mischief in the Fourth Degree, in violation of New York Penal Law §§ 120.05(2), 215.52(1) and 145.00(1), respectively. (Report 5). Petitioner was convicted at trial of three counts of Aggravated Criminal Contempt and one count of Criminal Mischief in the Fourth Degree, and sentenced on March 5, 2008, to an indeterminate term of nine to eighteen years' imprisonment. ( Id. at 8).

The People's evidence at trial established the following: Petitioner was involved in a romantic relationship with the complaining victim, Alicia Mendez-Vaz. (Report 2). The criminal charges against Petitioner arose from several violent incidents between Petitioner and Mendez-Vaz, including episodes in which (i) Petitioner struck the door of Mendez-Vaz's apartment with a dumbbell, resulting in an Order of Protection against Petitioner; (ii) Petitioner punched Mendez-Vaz in the face after accusing her of sleeping with his brother, causing her to fall to the ground, at which point Petitioner kicked her several times, causing bruising and a black eye; (iii) Petitioner became upset over a comment Mendez-Vaz made to him and choked her as a result, causing bruising; (iv) Petitioner became angry after observing Mendez-Vaz with another man, and thereafter attacked Mendez-Vaz by digging his thumb into her left eye, punching her in the face, hitting her with a glass object, and choking her until she lost consciousness. (Report 2-4).[2]

Petitioner was appointed counsel at the time of his arraignment; however, he notified the Court that he was unhappy with his counsel and wished to be appointed new counsel. (Report 5). The court granted his request. However, on the day before trial, Petitioner notified the court that he no longer wished to be represented by his second appointed counsel; in support of that assertion, Petitioner complained, in sum and substance, that that counsel had treated him brusquely. ( Id. at 5-6). The trial court denied his motion for new counsel, and Petitioner elected to proceed to trial pro se, though with his second appointed counsel acting as standby counsel. ( Id. at 6-7).

Petitioner testified in his own defense at trial, during which he claimed that Mendez-Vaz's injuries were caused by a combination of epileptic and sinus conditions and denied ever striking Mendez-Vaz. (Report 4). Petitioner was ultimately convicted at trial of four of the five counts with which he had been initially charged, acquitting him of the assault charge.

On March 7, 2008, Petitioner moved to set aside the jury's verdict pursuant to New York Criminal Procedure Law ("CPL") § 330.30; that motion was denied on August 22, 2008. (Report 8-9). The Appellate Division affirmed Petitioner's conviction on June 23, 2009. People v. Nelson, 881 N.Y.2d 94 (1st Dep't 2009). Petitioner's application to appeal that decision was denied by the New York Court of Appeals on August 20, 2009. People v. Nelson, 13 N.Y.3d 861 (2009).

While Petitioner's direct appeal was pending, he made several collateral attacks on his conviction in state court. His proceeding pursuant to Article 78 of New York's Civil Practice Law and Rules was dismissed on September 24, 2008. (Report 11-12). Petitioner's motion to vacate his conviction pursuant to N.Y. CPL § 440.10 was denied on May 22, 2009. ( Id. at 12). The Appellate Division denied his application for leave to appeal that determination on March 10, 2009.

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) (citing Fed.R.Civ.P. 72(b) and 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 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 omitted). However, where objections are "conclusory or general, " or where the petitioner "simply reiterates his original arguments, " the report ...


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