United States District Court, Southern District of New York
MEMORANDUM ORDER ADOPTING REPORT AND RECOMENDATION
LAURA TAYLOR SWAIN United States District Judge
Magistrate Judge Gabriel W. Gorenstein has issued a Report and Recommendation (the “Report”) recommending that the Court deny the petition for a writ of habeas corpus (the “Petition”) of Torkieh Sadagheh (“Petitioner”) pursuant to 28 U.S.C. § 2254. Petitioner is a New York state prisoner serving concurrent custodial terms of 15 years imposed following pleas of guilty to rape and attempted rape charges. In his Petition, Petitioner asserts that he is entitled to habeas corpus relief because he was denied the effective assistance of counsel in that his trial counsel (1) failed to advise him before he entered his guilty plea of a mandatory supervised release penalty and (2) failed to advise him of his “right” to withdraw the guilty plea on the basis of the failure of advice concerning the supervised release penalty.
Petitioner timely filed an objection to the Report (the “Objection”). The Court has thoroughly reviewed the Report, the Objection, and the relevant filings.
Petitioner raises three objections to the Report. Petitioner argues that the report: (1) reaches improper “evidentiary” conclusions based on the state court record and that this Court should grant Petitioner an evidentiary hearing concerning claims, made in connection with his state court motion to withdraw his plea, of threats against his family, coercion by his attorney, belated comprehension of the availability of a defense to the rape charges, and other circumstances that rendered his guilty plea involuntary and uninformed, (2) wrongly concludes that knowledge of the supervised release penalty would not have affected Petitioner’s decision as to whether to plead guilty because he would have been ineligible for relief from automatic deportation, and (3) errs in rejecting Petitioner’s ineffective assistance argument based on the decision of the New York State Court of Appeals in People v. Catu, 4 N.Y.3d 242 (2005). (See Objection at 1.)
In reviewing a Report and Recommendation, a court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C.S. § 636(b)(1)(C) (LexisNexis 2012).
The district court must review de novo the portions of the Report to which timely objections have been made. See United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Objections to a report and recommendation “are to be specific and are to address only those portions of the proposed findings to which the party objects.” Camardo v. Gen. Motors Hourly-Rate Emps. Pension Plan, 806 F.Supp. 380, 381-82 (W.D.N.Y. 1992). Where a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the report and recommendation only for clear error. See Zamudio-Berges v. United States, No. 08 Civ. 8789, 2013 WL 2896978, at *3 (S.D.N.Y. June 13, 2013); Camardo, 806 F.Supp. at 382. When the objections raised are “merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition [they] will not suffice to invoke de novo review.” See Vega v. Artuz, No. 97 Civ. 3775, 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002).
The Court has reviewed each of Petitioner’s objections de novo, except as indicated otherwise below. They are overruled, and the Petition is denied, for the following reasons. The relevant facts are set forth in the Report.
Petitioner’s Point 1: Objection Concerning “Evidentiary” Conclusions
Failure to Entertain Petitioner’s Contention that His Plea Was Coerced and That He was Uninformed as to an Available Defense
Citing Petitioner’s assertions in a pro se affidavit filed with the state court before his sentencing that Petitioner, inter alia, “was not fully aware of the circumstances involved when he made [his] guilty plea and that [even though the state Court may have] . . . given instruction . . . as to certain elements of his legal rights, such instructions were not fully understood, ” that Petitioner had pleaded “guilty for reasons which are outside the record of the proceedings, ” and that he was unaware at the time of the plea that he had a potentially “meritorious defense, ” Petitioner argues that the Report improperly fails to engage the proposition that there is a question as to Petitioner’s actual guilt, and requests an evidentiary hearing. (Objection at 2-4.)
As explained in the Report, the state court addressed these matters at Petitioner’s sentencing hearing and rejected Petitioner’s factual contentions and his request for further evidentiary proceedings, for reasons set forth at length on the record. (See Report at 6-9; transcript of sentencing, Docket Entry No. 1 at 73-109.)
The Report properly declined to address these contentions, which were not even raised in the habeas corpus Petition or argued in Petitioner’s memoranda in support of the Petition. Furthermore, in considering a habeas petition brought by a person in custody pursuant to a judgment of a state court, “a determination of a factual issue made by a State court shall be presumed to be correct.” Petitioner has “the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C.S. § 2254(e)(1) (LexisNexis 2008). Petitioner has never offered anything more than his own conclusory affidavit and his attorneys’ unsworn assertions in aid of his allegations of impropriety; he has failed entirely to establish grounds for an evidentiary hearing concerning these allegations. Nor has he demonstrated that the state court’s conclusion that he was not entitled to withdraw his plea was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, ” or that the decision was “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” See 28 U.S.C.S. §2254(d) (LexisNexis 2008).
Other “Evidentiary” Objections
Petitioner complains in a conclusory fashion that the Report contains unfounded “evidentiary” conclusions, and requests “an evidentiary hearing to vet fully each of these conclusions along with Petitioner’s uninformed decision to plead guilty.” (Objection at 4.) Petitioner asserts that the Report errs in that it: concludes, based on the transcript of the state court proceedings, that the trial judge informed Petitioner of the consequences of the guilty pleas, including the supervised release penalty; accepts and acknowledges the state court’s factual conclusion that trial counsel represented Petitioner aggressively; concludes that the state court record lacked sufficient evidence to raise a factual issue concerning Petitioner’s contention as to deficient ...