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Washington v. Walsh

United States District Court, S.D. New York

July 8, 2015

JAMES WALSH, Respondent.


RICHARD J. SULLIVAN, District Judge.

Dexter Washington ("Petitioner") brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 2 (the "Petition" or "Pet.")), challenging his conviction in New York Supreme Court, New York County, on two counts of burglary in the first degree, one count of robbery in the first degree, one count of robbery in the second degree, and one count of resisting arrest, for which he was sentenced as a predicate felon to twenty-five years of imprisonment. Now before the Court is the Report and Recommendation of the Honorable James C. Francis IV, Magistrate Judge, recommending that the Petition be denied. (Doc. No. 13 (the "Report" or "Rep.").) For the reasons set forth below, the Court adopts the Report in its entirety and denies the Petition.


A federal court may grant habeas corpus relief only if a claim that was adjudicated on the merits in state court (1) "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" or (2) "resulted in a decision that 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). "Clearly established Federal law means the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state court decision." Green v. Travis, 414 F.3d 288, 296 (2d Cir. 2005) (internal quotation marks omitted). A state court decision is "contrary to" such a holding only where the state court "either arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law' or confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at [the opposite result].'" Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001) (quoting Williams v. Taylor, 529 U.S. 362, 402 (2000)). An "unreasonable application' of those holdings must be objectively unreasonable, ' not merely wrong; even clear error' will not suffice." White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (internal quotations omitted). A federal court should grant habeas relief only if "the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Id. (quoting Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011)).

A court may accept, reject, or modify, in whole or in part, the findings or recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). A court may accept those portions of a report to which no specific, written objection is made, as long as the factual and legal bases supporting the findings are not clearly erroneous. See Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y. 1997) (citing Fed.R.Civ.P. 72(b) and Thomas v. Arn, 474 U.S. 140, 149 (1985)). When a party makes specific objections to a magistrate judge's findings or legal conclusions, the court must undertake a de novo review of the objections. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). However, "to the extent... that the party makes only conclusory or general arguments, or simply reiterates the original arguments, the Court will review the Report strictly for clear error." DiPilato v. 7-Eleven, Inc., 662 F.Supp.2d 333, 339 (S.D.N.Y. 2009) (quoting IndyMac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07-cv-6865 (LTS), 2008 WL 4810043, at *1 (S.D.N.Y. Oct. 31, 2008)). A magistrate judge's decision is clearly erroneous only if the district court is "left with the definite and firm conviction that a mistake has been committed." SEC v. Cobalt Multifamily Investors I, Inc., 542 F.Supp.2d 277, 279 (S.D.N.Y. 2008) (quoting Chen v. Bd. of Immigration Appeals, 435 F.3d 141, 145-46 (2d Cir. 2006)).

Courts are to read pro se filings liberally and interpret them "to raise the strongest arguments that they suggest." Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (internal quotation marks omitted). "Nonetheless, even a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument." DiPilato, 662 F.Supp.2d at 340 (quoting Pinkney v. Progressive Home Health Servs., No. 06-cv-5023 (LTS), 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008)).


The relevant facts and procedural history relating to the Petition are set forth in detail in the Report. Petitioner makes nine arguments, including that: (1) the evidence at trial was legally insufficient to support his conviction; (2) he did not have a "full and fair" probable cause hearing: (3) the prosecutor failed to disclose material evidence to him; (4) he was denied the right to represent himself pro se; (5) his pretrial and appellate counsel were ineffective; (6) the trial court should have conducted an independent source hearing prior to trial; (7) the prosecutor changed her theory of the case, thus denying him a fair and impartial trial; (8) the trial judge improperly interfered in the trial; and (9) he was improperly sentenced. (Rep. at 1.) Judge Francis thoroughly addressed and rejected each of these arguments in the Report. Petitioner now objects to all but one of the Report's rejections - that the trial judge impermissibly interfered in his trial - and makes the additional objections that he is entitled to a default judgment and that the Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013) entitles him to immediate release. The Court addresses each objection in turn.

A. Insufficiency of the Evidence

Petitioner argues that the evidence at trial was insufficient to support the findings of guilt for first degree burglary because the victim, Ms. Sanchez, did not suffer a "physical injury." (Doc. No. 16 ("Obj.") at 6.) Petitioner also asserts that there was insufficient evidence to support his convictions for first and second degree robbery because the prosecution did not prove that Ms. Sanchez suffered a "serious physical injury." ( Id. ) However, just as in his Petition, Petitioner misstates the injury requirement for second degree robbery. (Pet. at 12-17.) Like first degree burglary, second degree robbery only requires that the victim suffer a "physical injury." N.Y. Penal Law §§ 140.30, 160.10. Moreover, while "serious physical injury" is an element of first degree robbery, a conviction may nonetheless stand where the prosecution has proven the use or threatened use of a "dangerous instrument, " which is what it did here. N.Y. Penal Law §§ 160.15.

As for the sufficiency of the evidence introduced at trial, Judge Francis found that the injuries suffered by Ms. Sanchez - "redness, cuts, and swelling in the face, a black eye, pain in her jaw and face, and back pain requiring the ongoing use of a cane" - were more than sufficient to qualify as "physical injury" as required to prove first degree burglary or second degree robbery. (Rep. at 19.) The Report also found that the kitchen knife Petitioner used to threaten and intimidate Ms. Sanchez constituted a "dangerous instrument." ( Id. at 21.) Petitioner objects to these findings on the grounds that witnesses gave inconsistent testimony about the extent of Ms. Sanchez's injuries, that Ms. Sanchez's testimony was "self-serving, " and that Ms. Sanchez's testimony was not conclusive. (Obj. at 5-9.) However, because Petitioner's objection "simply reiterates the original arguments" he made to Judge Francis, the Court reviews the Report's finding for clear error and finds none. DiPilato, 662 F.Supp.2d at 339. Furthermore, under de novo review, the Court agrees with the Report's conclusion that there was sufficient evidence to establish that Ms. Sanchez suffered a "physical injury" and that Petitioner used a "dangerous instrument." Accordingly, the Court adopts the Report's recommendation and rejects Petitioner's claim.

B. Probable Cause Hearing

Petitioner next argues that he did not receive a "full and fair" opportunity to litigate his Fourth Amendment claims because of an "unconscionable breakdown" in the state court proceedings. (Rep. at 23-24 (citing Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992).) Specifically, he argues that (1) the money and jewelry found in his pocket were not suppressed despite inconsistent testimony from the arresting officer, Detective Yarbrough, (2) the prosecution was not penalized for failing to produce the notes and police recordings related to Detective Yarbrough's testimony prior to the hearing, (3) standby counsel and the prosecution infringed his efforts to represent himself, and (4) the prosecution was able to withdraw its request for an identification hearing on the ground that no "police arranged identification" occurred. (Rep. at 24-25.) Judge Francis found that Petitioner's allegations failed to rise to the level of dysfunction necessary to qualify as an "unconscionable breakdown, " and in any event, the fact that Petitioner was able to raise these same objections on direct appeal demonstrates that there was no "unconscionable breakdown" in the state court proceedings. (Rep. at 25.)

Petitioner's objections to this aspect of the Report simply rehash the arguments he made in his Petition or are challenges to the outcome of the probable cause hearing, and therefore only warrant clear error review. (Obj. at 11-17.) However, even after conducting a de novo review, the Court finds that Petitioner did receive a "full and fair" opportunity to litigate his Fourth Amendment claims and that Petitioner's right to represent himself was not infringed. As Judge Francis aptly stated, "the courts' failure to agree with the [P]etitioner does not equate to an unconscionable breakdown'" in the proceedings. (Rep. at 25.) Furthermore, Petitioner fully participated in the probable cause hearing by raising objections, conducting ...

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