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Dawkins v. Kirkpatrick

United States District Court, S.D. New York

April 14, 2017

LAWRENCE DAWKINS, Petitioner,
v.
ROBERT A. KIRKPATRICK, Respondent.

          MEMORANDUM & ORDER ADOPTING REPORT & RECOMMENDATION

          LORETTA A. PRESKA, Senior United States District Judge

         Petitioner Lawrence Dawkins ("Petitioner" or "Dawkins"), proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Petition, June 24, 2009, dkt. no. 2). After a jury trial in New York State Supreme Court, Dawkins was convicted of first degree murder. (State Ct. Tr. at 447-48, 450, Jan. 8, 2010, dkt. no. 8). Justice William Donnino sentenced Dawkins to life imprisonment without parole. (State Ct. Tr. at 13). After filing a direct appeal and a motion to vacate the judgment, Dawkins sought a writ of habeas corpus from this Court. (R&R at 6-10, Jan. 27, 2016, dkt. no. 21). On January 7, 2010, Respondent filed an Opposition to the petition. (Opp., Jan. 7, 2010, dkt. no. 9). On February 8, 2010, this case was referred to United States Magistrate Judge Frank Maas. (Order of Reference, Feb. 8, 2010, dkt. no. 12). On March 15, 2010 Petitioner filed a Reply Memorandum. (Reply, Mar. 15, 2010, dkt. no. 15).

         On January 27, 2016, Judge Maas issued a Report and Recommendation ("Report") in which he recommended that this Court deny Dawkins' petition. (R&R at 34, Jan. 27, 2016, dkt. no. 21). Dawkins subsequently filed objections to the Report. (Objections, Feb. 29, 2016, dkt. no. 23). For the following reasons, the Report is adopted in full.

         I. BACKGROUND

         The Court assumes familiarity with the factual background and relevant procedural history as set forth thoroughly in the Report. (R&R at 2-11). Dawkins' habeas petition articulates six claims: (1) the Government failed to disclose that the police induced the cooperation of Miller, the only alleged eyewitness to the homicides, by threatening to charge her as an accessory (R&R .at 1.6), (2) the Government failed to disclose and took affirmative steps to avoid disclosing, that it granted Miller leniency in an unrelated drug case in exchange for her testimony, (id.); (3) the trial court's jury instructions regarding witness credibility and prior consistent statements were improper, (id. at 20-21); (4) petitioner's counsel was ineffective due to his failure to: (a) further pursue the leniency accorded to the eyewitness, (b) object to the trial court's allegedly erroneous jury instructions, and (c) interview key witnesses before trial, (id. at 27); (5) the prosecutor engaged in misconduct during his summation by: (a) suggesting that others saw Dawkins commit the murders, (b) implying that he personally believed Dawkins was guilty, (c) vouching for the eyewitness' credibility, and (d) asserting that the eyewitness' testimony was consistent with her prior grand jury testimony, (id. at 23); and (6) the sentence imposed was excessive. (Id. at 32) .

         Although the Report found the summation and jury charge claims to be in procedural default, (R&R at 15), Judge Maas reviewed all of the claims on the merits. The Report then proceeded to deny all the claims in the petition. (Id. at 34}.

         II. STANDARD OF REVIEW

         In reviewing a Report and Recommendation, a district court "may accept, reject, or modify, in whole or in part, the findings, or recommendation, made by the Magistrate Judge” 28 U.S.C. § 636(b). When timely objections have been made to the Report, "[t]he district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed.R.Civ.P. 72(b)(3); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).

         However, when a petitioner objects by simply reiterating previous arguments or making only conclusory statements, the Court should review such objections for clear error. See Genao v. United States, No. 08 CIV. 9313, 2011 WL 924202, at *l (S.D.N.Y. Mar. 16, 2011). "[E]ven a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings . . . such that no party be allowed a 'second bite at the apple' by simply relitigating a prior argument." Pinkney v. Progressive Home Health Servis., No. 06 Civ. 5023, 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008) (citing Camardo v. Gen Motors Hourly-Rate Employees Pension Plan, 806 F.Supp. 380, 381-82 (W.D.N.Y. 1992}). Further, because "new claims may not be raised properly at this late juncture, " such claims "presented in the form of, or along with, 'objections, ' should be dismissed." Pierce v. Mance, No. 08 Civ. 4736, 2009 WL 1754904, at *1 (S.D.N.Y. June 22, 2009).

         III. DISCUSSION

         In his Objections, Dawkins withdrew his excessive sentence claim. (Objections at 9). Dawkins maintained all his other claims, objected generally to the Report's conclusions, and merely restated claims that were raised in his earlier petition. Accordingly, Petitioner's objections only merit review for clear error. Genao, 2011 WL 924202, at *1.

         1. Brady Claims

         a. Police Threats

         Dawkins contends that the Government violated Brady by not disclosing that Miller, an eyewitness to the murder, had been threatened to be charged as an accomplice if she did not testify and objects to the Report's interpretation of Banks v. Dretke, 540 U.S. 668 (2004). (See Objections at 3-4). However, the Report accurately notes that the nondisclosures at issue in Banks were a "far cry from this case." (R&R at 18). In Banks, the Supreme Court found that the defendant had been prejudiced by the witness' testimony during the penalty phase of the trial and that even the mere disclosure of the witness as a police informant would have rendered his testimony highly suspect. See Banks, 540 U.S. at 699, 701 (noting that had the informant "not instigated, upon [the] Deputy Sheriff ['s] request, the . . . excursion to fetch Banks' gun, the prosecutor would have had slim, if any, evidence that Banks planned to 'continue' committing violent acts."}. The Supreme Court did not suggest that the witness' undisclosed ...


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