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Smith v. Unger

United States District Court, S.D. New York

December 12, 2014

HARRY SMITH, Petitioner,
v.
ATTORNEY GENERAL DAVID M. UNGER, Respondent.

OPINION AND ORDER

LORNA G. SCHOFIELD, District Judge.

Petitioner Harry Smith brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for criminal possession of a weapon in the third degree and criminal possession of a weapon in the second degree (the "Petition"). This case was referred to the Honorable Gabriel W. Gorenstein for a report and recommendation (the "Report"). The Report was filed on June 9, 2014, and recommends that the writ be denied. Petitioner timely submitted objections to the Report (the "Objections"). Petitioner also submitted a supplemental letter containing objections on July 16, 2014. For the following reasons, the Report is adopted, and the Petition is denied.

I. BACKGROUND

A. Factual Background

The facts relevant to the Petition are set out in the Report and summarized here. In January 2009, pursuant to a search warrant, New York City Police Department ("NYPD") officers entered an apartment on 121st Street in Manhattan. In one bedroom, the NYPD found Sandra Hill, Smith's cousin. In another bedroom, the officers found Smith lying on a twin bed and Hill's son lying on another bed. They placed Smith in handcuffs, searched the room and found a nine-millimeter handgun, a loaded magazine and two forged official badges. In the room in which Hill was found, they found cocaine and crack cocaine. Smith was then placed under arrest and charged with criminal possession of a weapon in the second and third degrees, endangering the welfare of a child, and two counts of criminal possession of a forged instrument in the third degree.

At the precinct, NYPD officers went to Smith's cell to question him. Unprompted, Smith declared that the gun and fake police badges were his but that he "did not know anything about the drugs in the apartment." Smith reiterated these statements after he was read his Miranda rights. Smith also provided a detailed written confession.

Before the trial, Petitioner's trial counsel received a Voluntary Disclosure Form ("VDF") that listed Smith's post-arrest statements. This VDF indicated that Smith had told the NYPD, "The gun is mine, " and, "The drugs are mine." The prosecution later gave the trial court a corrected VDF - omitting the statement about drugs - but defense counsel apparently did not receive the revised version or learn about the error until a sidebar at trial, during the testimony of an NYPD officer.

Petitioner's jury trial took place in October 2009, in the Supreme Court of New York, New York County. The Report contains a detailed description of the trial, including allegedly improper statements made by both the prosecution and defense counsel, as well as the jury charge concerning constructive possession, which the Petition challenges.

Ultimately, the jury convicted Smith of criminal possession of a weapon in the second and third degrees and acquitted him on the remaining counts. The trial court sentenced Smith to nine years' imprisonment, followed by five years of post-release supervision, for the second-degree count, as well as a concurrent, indeterminate term of two to four years for the third-degree count.

II. LEGAL STANDARD

A reviewing 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 court "may adopt those portions of the report 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 contrary to law." Adams v. N.Y. State Dep't of Educ., 855 F.Supp.2d 205, 206 (S.D.N.Y. 2012) (citing Fed.R.Civ.P. 72(b), Thomas v. Arn, 474 U.S. 140, 149 (1985)).

The court must undertake a de novo review of any portion of the report to which a specific objection is made on issues raised before the magistrate judge. See 28 U.S.C. § 636(b)(1); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). When a party makes only conclusory or general objections, or simply reiterates the original arguments made below, a court will review the report strictly for clear error. Crowell v. Astrue, No. 08 Civ. 8019, 2011 WL 4863537, at *2 (S.D.N.Y. Oct. 12, 2011) (citation omitted). Even when exercising de novo review, "[t]he district court need not... specifically articulate its reasons for rejecting a party's objections...." Morris v. Local 804, Int'l Bhd. of Teamsters, 167 F.Appx. 230, 232 (2d Cir. 2006).

Where a state court has reached the merits of a federal claim, habeas relief under § 2254 may not be granted unless the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. §§ 2254(d)(1), (d)(2). State court factual findings "shall be presumed to be correct" and the petitioner "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." Id. § 2254(e)(1). "A state court's determination that a claim lacks merit" is not unreasonable "so long as fairminded ...


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