United States District Court, S.D. New York
ORDER ADOPTING REPORT AND RECOMMENDATION
KENNETH M. KARAS, District Judge.
On December 9, 1997, a jury in Dutchess County, New York, convicted Bruce Wright ("Petitioner") of second degree burglary. On September 29, 1998, the trial judge sentenced Petitioner to twenty years in prison as a Persistent Violent Felony Offender. See People v. Wright, 724 N.Y.S.2d 351 (App. Div. 2001). The Appellate Division affirmed Petitioner's conviction, id., and the Court of Appeals denied Petitioner's request for leave to appeal. See People v. Wright, 759 N.E.2d 382 (mem.) (N.Y. 2001). On October 30, 2002, Petitioner, proceeding pro se, filed a petition for writ of habeas corpus with this Court under 28 U.S.C. § 2254 (the "Petition"). (Dkt. No. 1.) The Court referred the case to Magistrate Judge Mark D. Fox pursuant to 28 U.S.C. § 636(b). Magistrate Judge Fox permitted the Petition to stay pending for several years so that Petitioner could attempt to exhaust his state remedies by filing a collateral appeal under New York Criminal Procedure Law section 440.10. (Dkt. No. 11.) On June 30, 2005, a New York trial court denied Petitioner's section 440.10 motion (Aff. in Answer to a Petition for a Writ of Habeas Corpus ("Resp't Ex.") 42), and the Appellate Division denied leave to appeal on December 1, 2005, (Resp't Ex. 47). Magistrate Judge Fox subsequently issued a Report and Recommendation ("R&R") concluding that the Court should refuse to further stay this proceeding and should deny the Petition in all respects. (Dkt. No. 21.) Petitioner submitted timely objections to Magistrate Judge Fox's R&R. (Objections to Magistrate's R&R ("Obj.").) For the reasons set forth herein, the Court adopts the R&R in its entirety and dismisses the Petition.
The Court adopts the factual and procedural background of this case as set forth in the R&R on pages 1-5, and assumes the Parties are familiar therewith.
A. Standard of Review
1. Review of Magistrate Judge's Report & Recommendation
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); see also Donahue v. Global Home Loans & Fin., Inc., No. 05-CV-8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007). Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), parties may submit objections to the magistrate judge's report and recommendation. The objections must be "specific" and "written, " Fed.R.Civ.P. 72(b)(2), and must be made "[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 Rule of Civil Procedure 5(b)(2)(c)-(f), see Fed.R.Civ.P. 6(d).
Where a party submits timely objections to a report and recommendation, as Petitioner has here (Dkt. No. 23), 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); Donahue, 2007 WL 831816, at *1. 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 contrary to law." Eisenberg v. New England Motor Freight, Inc., 564 F.Supp.2d 224, 226 (S.D.N.Y. 2008) (quoting Fed.R.Civ.P. 72(b)(2)).
2. Review of Petition for Habeas Corpus Relief
Under the Antiterrorism and Effective Death Penalty Act ("AEDPA"), "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim... resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States...." 28 U.S.C. § 2254(d)(1). Thus, Petitioner is entitled to habeas corpus relief only if he can show that "the state court unreasonably' applied law as established by the Supreme Court in ruling on [P]etitioner's claim, or made a decision that was contrary to' it." Cousin v. Bennett, 511 F.3d 334, 337 (2d Cir. 2008) (quoting 28 U.S.C. § 2254(d)(1)). "While the precise method for distinguishing objectively unreasonable decisions from merely erroneous ones' is somewhat unclear, it is well-established in [the Second] Circuit that the objectively unreasonable' standard of § 2254(d)(1) means that petitioner must identify some increment of incorrectness beyond error in order to obtain habeas relief.'" Sorto v. Herbert, 497 F.3d 163, 169 (2d Cir. 2007) (quoting Torres v. Berbary, 340 F.3d 63, 68 (2d Cir. 2003) (internal alterations omitted) (emphasis in original)). The state court's determination of factual issues is presumed correct, and Petitioner has "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Hoi Man Yung v. Walker, 468 F.3d 169, 176 (2d Cir. 2006).
1. Petitioner's Objection to Magistrate Judge Fox's January 27, 2006 Order
Petitioner objects to Magistrate Judge Fox's decision to deny Petitioner's request for a stay of these proceedings. (Obj. ¶ 2.) The Court construes Plaintiff's objection as a request to set aside Magistrate Judge Fox's January 27, 2006 Order. (Dkt. No. 11.) Petitioner wanted a further stay so that he could pursue a writ of error coram nobis in the Appellate Division, but Magistrate Judge Fox recommended denial of that application in the January 27, 2006 Order. (R&R 2.) In Petitioner's section 440.10 motion, the New York trial court had ruled that Points 5, 6, 9, and 10 were procedurally defaulted, because they were not raised in Petitioner's direct appeal. (Resp't Ex. 42; R&R 2.) Petitioner apparently believes he can prevent these claims from being defaulted in his federal habeas Petition by first pressing them by way of a writ of error coram nobis in the Appellate Division. (R&R 2; Dkt. No. 11.) However, "the writ of error coram nobis lies in the state appellate court only to vacate an order determining an appeal on the ground that the defendant was deprived of the effective assistance of appellate counsel." Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (internal quotation marks and alterations omitted); see also Tineo v. Heath, No. 09-CV-3357, 2012 WL 4328361, at *6 (E.D.N.Y. Sept. 19, 2012) (same). None of the claims which Petitioner presses in this habeas proceeding is for ineffective assistance of appellate counsel. It would therefore be futile to stay these proceedings while Petitioner pursues a writ of error coram nobis. See Rhines v. Weber, 544 U.S. 269, 277-78 (2005) (noting that "district courts should place reasonable time limits on a petitioner's trip to state court and back" and "structur[e] the stay" in a manner consistent with "the timeliness concerns reflected in" the AEDPA); Postley v. Rozum, No. 08-CV-4479, 2009 WL 5217074, at *4 (E.D. Pa. Dec. 30, 2009) (applying Rhines and denying stay as futile where unexhausted claims clearly were procedurally defaulted in state court); Morris v. Phillips, No. 04-CV-4597, 2006 WL 3694545, at *1 n.2 (E.D.N.Y. Dec. 13, 2006) (denying a stay to exhaust three claims in state court because pressing the claims in state court "would be futile since they would be time-barred"). Accordingly, Magistrate Judge Fox correctly denied Petitioner's request to further stay this proceeding. (R&R 2, 4.)
Importantly, however, Magistrate Judge Fox also recommended that the Court deem the Petition amended to include the claims raised in Petitioner's section 440.10 motion. (R&R 4.) See Marin v. Cunningham, No. 05-CV-3245, 2007 WL 2479855, at *3 (E.D.N.Y. Aug. 27, 2007) ("Because petitioner is pro se, I will deem his petition amended to assert the broader range of ineffective assistance points that his state appellate lawyer may have attempted to raise in the Appellate Division." (emphasis in original)); Clarke v. Goord, No. 07-CV-0366, 2007 WL 2324965, at *1 (E.D.N.Y. Aug. 10, 2007) ("[I]n his reply memorandum of law, petitioner raised, for the first time, an ineffective assistance of appellate counsel claim.... In light of petitioner's pro se status, this court deems the petition amended to raise this claim...."); Boyd v. Smith, No. 03-CV-5401, 2004 WL 2915243, at *5 n.5 (S.D.N.Y. Dec. 17, 2004) ("[T]he Court deems the petition amended to include the ineffective assistance claim."). In his extensive objections to the R&R, Petitioner does not object to this amendment and, indeed, appears to embrace it. ( See Obj. ¶¶ 1, 5-9 (insisting that his section 440.10 motion is "part of the record, " that he previously filed an "application for an amended petition" to raise those claims, and addressing the merits of Points 5, 6, 8, and 9 of his section 440.10 motion).) Accordingly, the Court follows Magistrates Judge Fox's recommendation and deems the Petition amended to include all claims raised in Petitioner's section 440.10 motion.
2. Petitioner's Request for a Stay of the Proceedings in this Court
By letter dated January 22, 2007, Petitioner requested another stay so that a state court could address issues which would put Ground Four of his original Petition in the proper legal context and perspective. (R&R 3.) Staying a habeas petition while a petitioner seeks to exhaust unexhausted claims in state court "is only appropriate when the district court determines there was good cause for the petitioner's failure to exhaust" and when the "unexhausted claims are [not] plainly meritless." Rhines, 544 U.S. at 277. Here, Petitioner fails to satisfy either requirement. Ground Four asserts certain irregularities in the Indictment upon which Petitioner was convicted. As explained more ...