United States District Court, S.D. New York
VALERIE CAPRONI, District Judge.
Pro se Petitioner Darren Gunter filed this petition for a writ of habeas corpus (the "Petition") pursuant to 28 U.S.C. § 2254 on November 14, 2012. The Petition challenges Gunter's conviction in the New York State Supreme Court, Bronx County, for second-degree murder and his sentence of twenty years to life imprisonment. In the Petition, Gunter claims that: (1) his statements to law enforcement officers should have been suppressed; (2) the jury verdict was against the weight of the evidence; (3) prosecutorial misconduct in the summation prevented him from receiving a fair trial; and (4) his sentence is excessive and should be reduced. Dkt. 2. Magistrate Judge Fox issued a Report and Recommendation that recommended the Petition be denied in its entirety (the "R&R"). Dkt. 21. Petitioner objected to the R&R (the "Response"). Dkt. 24. Upon careful review of the R&R, the Response and the record, the Petition is DENIED.
STANDARD OF REVIEW
In reviewing an R&R, the district court "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)(C). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3). See also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). If, however, the objections "are conclusory or general, or simply reiterate original arguments, the district court reviews the Report and Recommendation for clear error." Brown v. Conway, 06 Civ. 5041 (RO), 2011 WL 1362125, at *2 (S.D.N.Y. Apr. 8, 2011). See also Laster v. Mancini, No. 07 Civ. 8265 (DAB), 2013 WL 5405468, at *2 (S.D.N.Y. Sept. 25, 2013); United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006) (to establish clear error, a court "must, upon review of the entire record, be left with the definite and firm conviction that a mistake has been committed.").
Gunter raises three arguments in his Response, all of which were previously considered on direct appeal and by the Magistrate Judge. See People v. Gunter, 89 A.D.3d 461, 461-462 (App. Div. 1st Dep't 2011). First, Gunter argues that his statements to law enforcement officers should have been suppressed. Pet. at 2-10. Second, Gunter contends that the jury verdict was against the weight of the evidence. Id. at 6-13. Third, Gunter argues he was denied a denied a fair trial based on improper comments made by the prosecutor during summation. Id. at 13-15. Gunter does not object to the R&R's recommendation that his fourth claim relating to the length of his sentence be dismissed. Because Petitioner's Response simply reiterates the arguments made on direct appeal and in the Petition, the Court reviews the R&R for clear error.
I. Fourth Amendment Suppression Claim
The R&R concludes that Petitioner's claim that his statements to a New York City Police Detective should have been suppressed is barred from federal review. R&R at 15-16. Habeas review of a Fourth Amendment claim is appropriate only if the state "has provided no corrective procedures at all to redress the alleged fourth amendment violations, " or "has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Id. (citing Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992). See also Stone v. Powell, 428 U.S. 465, 481-82 (1976). Gunter, who litigated his Fourth Amendment claim at the trial and appellate level, does not refute Magistrate Judge Fox's finding that he was provided a full and fair opportunity to litigate his claim in state court, nor does he allege that he was precluded from using the state corrective mechanism. Accordingly, the Court concurs with the R&R's conclusion that Petitioner's Fourth Amendment claim is not cognizable on habeas corpus review. See Canteen v. Smith, 555 F.Supp.2d 407, 416 (S.D.N.Y. 2008).
II. Verdict Is Against the Weight of the Evidence
"[I]t is well settled that upon habeas corpus the court will not weigh the evidence." Hyde v. Shine, 199 U.S. 62, 84 (1905). Accordingly, the R&R correctly concluded that this claim is not cognizable before this Court. R&R at 16. See also McKinnon v. Comm'r, Great Meadow Corr. Facility, 422 F.Appx. 69, 75 (2d Cir. 2011) ("[T]he argument that a verdict is against the weight of the evidence states a claim under state law, which is not cognizable on habeas corpus... and as a matter of federal constitutional law a jury's verdict may only be overturned if the evidence is insufficient to permit any rational juror to find guilt beyond a reasonable doubt.").
Even construing Petitioner's claim liberally as a claim that "the evidence adduced at a state trial was not sufficient to convict a criminal defendant beyond a reasonable doubt, " see Herrera v. Collins, 506 U.S. 390, 401 (1993), the R&R correctly rejected Petitioner's claim. Under controlling Supreme Court precedent, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). To establish his affirmative defense to felony murder under New York law, Gunter had to show, by a preponderance of the evidence, see N.Y. Penal Law § 25.00(2), inter alia, that he "[h]ad no reasonable ground to believe that any other participant was armed with... a [deadly] weapon." N.Y. Penal Law § 125.25(3)(c). As the Appellate Division and Magistrate Judge Fox held, Petitioner's videotaped statements, in which he admitted that he knew or strongly suspected that one of his coconspirators had a gun, "undermined his claim that he had no reasonable ground to believe that any of the other participants was armed with a deadly weapon." See Gunter, 89 A.D.3d at 462; R&R at 17. The R&R's conclusion that a reasonable factfinder could have found Petitioner guilty and its rejection of Petitioner's sufficiency of the evidence claim is not clearly erroneous and is adopted by this Court.
III. Prosecutorial Misconduct During Summation
In his Petition and Response, Petitioner makes three arguments based on alleged prosecutorial misconduct during summation: (1) the prosecutor made inflammatory comments regarding the character of the victim's family in contrast with that of the perpetrators; (2) the prosecutor "argued outside the four corners of the evidence" by interjecting unsubstantiated information regarding the sexual relationship between the victim and one of the other perpetrators; and (3) the prosecutor lowered the burden of proof by asking the jury to reach speculative conclusions as to the possibility that Gunter may have been the shooter despite the lack of evidence that he was. Petitioner raised these same claims on direct appeal; the Appellate Division found that "[o]f [Petitioner's] challenges to the prosecutor's summation, the only claim that he properly preserved by way of a timely and specific objection was his claim that a particular comment asserted facts not in evidence." Gunter, 89 A.D.3d at 462. The Appellate Division thus declined to review the other two summation-related claims as "unpreserved" but, in the alternative, found no basis for reversal. Id.
The Supreme Court has made clear that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262 (1989) (citations & internal quotations omitted). As the Second Circuit has held, "there is no question that the Appellate Division's explicit invocation of the procedural bar [for failure to lodge a proper objection at trial] constitutes an independent' state ground" even if the court addresses the merits as an alternative holding. Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (citation omitted). Thus, the Appellate Division's determination that two of Petitioner's prosecutorial ...