United States District Court, S.D. New York
OPINION AND ORDER ADOPTING REPORT AND
HONORABLE PAUL A. CROTTY, United States District Judge
se Petitioner Charlie Jones ("Jones" or
"Petitioner") seeks a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, claiming a violation of
his constitutional right to be present at his trial. ECF 1.
He has also moved for a stay and to amend his petition. ECF
17, 2016, Magistrate Judge Gabriel Gorenstein issued his
thorough Report and Recommendation (the "R&R"),
recommending denial of the petition, the motion for a stay,
and the motion to amend. ECF 21. On August 10, 2016,
Petitioner timely objected. ECF 23.
Court has reviewed the objections, and for the reasons
described below, ADOPTS the R&R in full. The petition,
motion for a stay, and motion to amend are DENIED,
trial took place on October 10, 11, 15, and 16, 2007, before
Justice Wetzel in New York State Supreme Court, during which
time Jones was incarcerated. See R&R at 2. Prior
to trial, a competency hearing was held (the "730
Hearing"). See R&R at 2-3; N.Y. Crim. Proc.
Law § 730. A psychologist and a psychiatrist testified
about their multiple examinations of Jones and review of his
medical records from previous hospitalizations and his
incarceration, which reflected that Jones had a "history
of malingering." See Id. at 4-5. They concluded
that Jones that was "feign[ing] an illness" that
was a "motivated by an incentive to evade criminal
prosecution, " diagnosed Jones with malingering, and
concluded that Jones could proceed to trial. Id. at
5 (internal quotations and citations to the record omitted).
The hearing judge accepted the doctors' findings and
determined that Jones was fit to stand trial. See
attended the first two days of his trial, but on Monday,
October 15, 2007, Justice Wetzel, was informed that Jones had
taken "an overdose of medication, reported that to [the
Department of] Corrections as a suicide attempt, and was
brought to [Elmhurst] Hospital." See Id. at 2
(internal quotations and citations to the record omitted).
Justice Wetzel heard from the parties regarding what to do
about Jones' absence. See id.
prosecutor recounted the court file, which reflected that
Jones had failed to appear in court on several occasions,
allegedly for medical reasons; noted that the 730 Hearing
judge had "specifically told [Jones] that the trial
would go on in his absence if he were to absent himself from
the courtroom as he had been doing on at least five previous
times as we attempted to move it along"; and informed
the court that she had "12 witnesses here or scheduled
to be here today." Id. at 2-6 (internal
quotations and citations to the record omitted). The
prosecutor added that the initial 730 Hearing had to be
adjourned and rescheduled due a different overdose; then,
after Jones was sent from Elmhurst Hospital to Bellevue
Hospital, "Bellevue simply turned the defendant around
and sent him back to Riker's reporting that because he
has a history of malingering and they see no reason he's
doing anything but malingering on this date, they're not
going to admit him to Bellevue." Id. at 4
(internal quotations and citations to the record omitted).
The corrections officer testified that Jones'
"'[c]ourt appearances were in fact pre- empted by
Hospital visits on four' out of six occasions."
Id. at 3-4 (internal quotations and
citations to the record omitted).
counsel requested a one-day continuance to attempt to obtain
Jones' presence for the rest of trial. Id. at 6.
Justice Wetzel denied the request, "emphasized that
there was no evidence that Jones attempted suicide - only
that Jones had overdosed and that Elmhurst Hospital was
treating him, " and noted that he had told the jurors
that the case would end in the middle of that week.
Id. (internal quotations and citations to the record
omitted). Justice Wetzel found that Jones had forfeited his
right to be present, and ordered trial to proceed. See
Id. at 6-7. Jones did not appear for the remainder of
trial. See Id. at 7. The jury convicted Jones of
four counts of burglary in the first degree, three counts of
robbery in the first degree, and one count of attempted
robbery in the second degree. See Id. at 1.
appealed to the Appellate Division, First Department, making
identical arguments to those in this petition; the Appellate
Division denied the appeal. See Id. at 7. The New
York Court of Appeals denied Jones' request seeking leave
to appeal. See id.
Review of Objections
Court may "accept, reject, or modify, in whole or in
part, the findings or recommendations by the magistrate
judge." 28 U.S.C. § 636(b)(1)(C). If a party timely
objects, the Court reviews the R&R's contested
portions de novo. See Arista Records LLC v. Doe, 604
F.3d 110, 116 (2d Cir. 2010). "However, where a party
does not submit a timely objection, 'a district court
need only satisfy itself that there is no clear error on the
face of the record.'" Martinson v. U.S. Parole
Comm % No. 02-CV-4913 (KMK), 2005 WL 1309054, at *3
(S.D.N.Y.June 1, 2005) (internal quotations and citations
omitted). "[Submissions of a. pro se litigant
must be construed liberally and interpreted to raise the
strongest arguments that they suggest." Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)
(internal quotations, citations, and emphasis omitted).
the extent, however, that the party makes only conclusory or
general objections, or simply reiterates the original
arguments, the Court will review the Report strictly for
clear error." Pinkney v. Progressive Home Health
Servs., No. 06-CV-5023 (LTS) (JCF), 2008 WL 2811816, at
*1 (S.D.N.Y. July 21, 2008). "[E]ven apro 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." Id. (internal citations