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Babcock v. Philip Heath

United States District Court, S.D. New York

October 3, 2014

GEORGE BABCOCK, Petitioner, Case
PHILIP HEATH, Superintendent of the Sing Sing Correctional Facility, Respondent.


KENNETH M. KARAS, District Judge.

George Babcock, Jr. ("Petitioner") seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254 from his 2008 conviction in Orange County. The case was referred to Magistrate Judge Paul Davison, who issued a Report and Recommendation ("R&R"). (Dkt. No. 14.) The Court, having reviewed Petitioner's Petition for Writ of Habeas Corpus, (Pet. for Writ of Habeas Corpus ("Pet.") (Dkt. No. 1)), Respondent's Memorandum in Opposition and supporting exhibits, ("Resp't's Mem." (Dkt. No. 13)), Magistrate Judge Davison's R&R, and Petitioner's Memorandum containing his Objections to the R&R, ("Pet'r's Obj." (Dkt. No. 16)), hereby adopts the R&R and denies Petitioner's request for habeas relief.


A. Factual Background

The Court assumes the Parties' familiarity with the factual and procedural history of the case, as described in Judge Davison's thorough R&R. In short, Petitioner was arrested on June 8, 2008, and, after waiving his Miranda rights, confessed to having engaged in oral and vaginal sex with a seven year-old child. ( See R&R 2.)

On June 26, 2008, Petitioner, who was represented by counsel, pled guilty to one count of"sodomy in the first degree" (N.Y. Penal Law§ 130.50(3)). (R&R 2.) During his plea allocution, Petitioner admitted to sexually assaulting the child between July 1 and September 1, 2000. ( See June 26, 2008 Hr'g Tr. ("June 26 Tr.") 8-9 (Resp't's Mem. Ex. 2).) Petitioner stated that he understood that he waived certain rights by pleading guilty, including the right to a jury trial, as well as his rights to cross-examine witnesses, subpoena witnesses, testify on his own behalf, and remain silent. ( Id. at 5-6) Petitioner also confirmed that he was pleading guilty because he was guilty of the offense, and that he understood that doing so waived his right to appeal. ( Id. at 6-7.) In fact, Petitioner and his counsel signed a waiver of appeal. (Resp't's Mem. Ex. 3, at 1.) Petitioner then delivered his allocution, and the court accepted his plea. ( Id. at 8-9.) Based upon Petitioner's allocution, the trial court found that Petitioner had knowingly, voluntarily, and intelligently entered a guilty plea to sodomy in the first degree. ( Id. at 9.) The trial court also indicated that it was inclined to sentence Petitioner to eight years of incarceration, with two-and-a-half years of post-release supervision. ( Id. at 2.)

On October 2, 2008, Petitioner appeared before the trial court for sentencing. ( See Oct. 2, 2008 Hr'g Tr. ("Oct. 2 Tr.") 2 (Resp't's Mem. Ex. 4).) The trial court informed Petitioner that the Pre-Sentence Investigation (PSI) suggested that the court's initial sentence assessment was not appropriate. ( Id. at 2.) The trial court informed Petitioner that he could either continue with the plea and receive a ten-year prison sentence with a period of two-and-a-half-year post-release supervision or withdraw his guilty plea and proceed to trial. ( Id. at 2.) Petitioner chose to withdraw his plea against the advice of his counsel. ( Id. at 4.) The court advised Petitioner that the People were prepared to indict Petitioner and charge him with rape in the first degree and sodomy in the first degree, both of which are Class B felonies. ( Id. at 5.) The court further informed Petitioner that a conviction on these counts could trigger a forty-year sentence. ( Id. ) Petitioner nonetheless insisted that his June 26, 2008 plea be withdrawn. ( Id. at 6.)

On October 6, 2008-the day that Petitioner's case was scheduled to be presented to the Grand Jury for indictment-Petitioner's counsel indicated that Petitioner wished to reinstate his original plea and was prepared to accept the ten-year sentence. ( See October 6, 2008 Hr'g Tr. ("Oct. 6 Tr.") 2 (Resp't's Mem. Ex 5).) The trial court then confirmed with Petitioner that he was seeking vacatur of the prior order permitting him to withdraw his plea. ( Id. at 3-4.) The court then granted Petitioner's application to vacate the withdrawal and reinstated Petitioner's June 26, 2008 plea. ( Id. ) Prior to sentencing, the court heard remarks from the victim's mother. ( Id. at 5.) When she described the effect that Petitioner's sexual assault had on her daughter, Petitioner interrupted to say that "[the victim] told [him] to do it." ( Id. at 5.) Petitioner's counsel asked the court to consider the fact that Petitioner had no prior criminal history and that Petitioner "has some severe limitations educationally and otherwise, " in determining an appropriate sentence. ( Id. at 6-7.) Petitioner did not address the court. The court then sentenced Petitioner to a period often years incarceration and two-and-a-half years supervised release. ( Id. at 8.)

B. Procedural Background

Since his conviction, Petitioner has filed two state court appeals as well as the instant habeas Petition. Magistrate Judge Davison's R&R contains a comprehensive catalogue of Petitioner's filings and the claims raised therein, several of which are noteworthy for purposes of this Order. ( See R&R 3-4.) Petitioner filed his first direct appeal in the New York Supreme Court, Appellate Division, which affirmed Petitioner's conviction on April 20, 2010. See People v. Babcock, 898 N.Y.S.2d 503, 503-04 (App. Div. 2010) (holding that Petitioner's argument that his plea was not knowing and voluntary was unpreserved for appellate review and that the sentence was not excessive). The New York Court of Appeals denied leave to appeal on July 8, 2010. See People v. Babcock, 933 N.E.2d 1053, 1053 (N.Y. 2010). On June 16, 2011, Petitioner filed his federal habeas petition, along with supporting documents claiming, as he did in his state appeal, that his October 6, 2008 plea was invalid because the court did not require him to reallocute and that his sentence was excessive. ( See Pet. 4.) Respondent filed his response on November 23, 2011. ( See Resp't's Mem.) On February 10, 2012, Magistrate Judge Davison issued an R&R recommending that the Court deny the Petition. ( See R&R 14.) On March 26, 2012, Petitioner filed a timely objection to the R&R, which reiterated his claim that his October 6, 2008 plea was invalid because he did not re-allocute, and also raised a new issue: that his Post Traumatic Stress Disorder (PTSD) rendered his plea involuntary. ( See Pet'r's Obj. 3.) Petitioner did not object to Magistrate Judge Davison's conclusion that Petitioner's excessive sentence claim should be rejected. The Court now considers these claims.


A. Legal Standard

A district court reviewing a report and recommendation addressing a dispositive motion "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), a party may submit objections to the magistrate judge's report and recommendation. These objections must be "specific" and "written, " Fed.R.Civ.P. 72(b)(2), and filed"[ w]ithin 14 days after being served with a copy of the recommended disposition, " id.; see also 28 U.S.C. § 636(b)(1), plus an additional three days when service is made pursuant to Federal Rules of Civil Procedure 5(b)(2)(C)-(F), for a total of seventeen days, see Fed.R.Civ.P. 6(d).

Where a party submits timely objections to a report and recommendation, the district court reviews de novo the parts of the report and recommendation to which the party objected. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). The district court "may adopt those portions of the... report [and recommendation] to which no specific written objection' is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or ...

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