United States District Court, S.D. New York
MEMORANDUM & ORDER ADOPTING REPORT &
LORETTA A. PRESKA, Senior United States District Judge
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).
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
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
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}.
STANDARD OF REVIEW
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).
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).
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.
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'