United States District Court, S.D. New York
OPINION AND ORDER
Edgardo Ramos, U.S.D.J.
se Petitioner Keith Fair ("Fair" or
"Petitioner") filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254
("Petition") on June 13, 2014. Doc. 1. The case was
reassigned to the undersigned on June 23, 2015, who referred
the Petition to Magistrate Judge Ronald L. Ellis on June 24,
2015. Doc. 8.
27, 2015, Judge Ellis issued a Report and Recommendation
("Report" or "R&R"), recommending
that the Petition be denied in full without prejudice. Doc.
11. Petitioner filed written objections to the Report on
August 8, 2015 ("Objections"). Doc. 12. For the
reasons stated herein, the Court adopts the R&R in its
entirety, and the Petition is DENIED.
factual background and procedural history relevant to the
Petition are set forth in the R&R, familiarity with which
is assumed. See Report at 1-2.
Fair's plea of guilty, he was convicted on July 30, 2013
in the Supreme Court of the State of New York, Bronx County
of one count of a criminal sexual act in the third degree.
People v. Fair, 129 A.D.3d 617, 617 (1st Dep't.
2015). As a second violent felony offender, Fair was
sentenced to a term of four years. Fair waived his appellate
rights orally during his plea allocution and in writing.
Id. Petitioner also asserts that an order for civil
commitment was entered against him in October 2013 under
Article 10 of the New York Mental Hygiene Law, which is a
civil measure designed for the treatment and protection of
recidivistic sex offenders. See NY. Mental Hyg. Law
§ 10.01; Report at 2; Petition at 15. The First
Department of the New York State Appellate Division affirmed
Fair's conviction and sentence on June 25, 2015.
Fair, 129 A.D.3d at 617. The conviction became final
on October 27, 2015, after the New York Court of Appeals
denied Petitioner's request for leave to appeal.
People v. Fair, 8 N.Y.3d 945 (2015).
filed his original habeas petition on June 13, 2014.
He then filed an amended habeas Petition
("Amended Petition") on December 2, 2014, per court
order dated October 7, 2014 that directed him to: (1) allege
how Petitioner's custody violates federal law and the
facts supporting each ground; and (2) state whether he had
exhausted state remedies. See Report at 2; Order to
Amend Doc. 6.; Amended Petition Doc. 7.
27, 2015, Judge Ellis issued the Report, which liberally
construed the Amended Petition to have alleged that:
"(1) his waiver of grand jury indictment and guilty plea
to a superior court information was improper; (2) the
institution of civil commitment proceedings against him
violates the principle of double jeopardy; and (3) his due
process rights were violated during the course of his civil
commitment proceeding." Report at 3. Judge Ellis held
that the Amended Petition's lack of legal theory and
supporting facts prevented the Court from adjudicating the
case and assessing relief. Id. at 4. He, thus,
recommended that this Court dismiss the Amended Petition.
STANDARD OF REVIEW
AEDPA Review of the State Court Proceedings
the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214,
habeas petitions under 28 U.S.C. § 2254 may not
be granted unless the state court's decision was
"contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the
Supreme Court of the United States, " or "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)(1)-(2). This deference is required
under the AEDPA if, as here, the petitioner's claim
"was adjudicated on the merits in State court
proceedings." 28 U.S.C. § 2254(d); see Bell v.
Miller, 500 F.3d 149, 154-55 (2d Cir. 2007).
statutory phrase ['clearly established Federal law as
established by the Supreme Court of the United States, ']
refers to the holdings, as opposed to the dicta, of th[e]
Court's decisions as of the time of the relevant
state-court decision." Williams v. Taylor, 529
U.S. 362, 412 (2000). In order for a federal court to find
that the state court's application of Supreme Court
precedent was unreasonable, the decision must be objectively
unreasonable rather than simply incorrect or erroneous.
Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The
factual findings made by state courts are presumed to be
correct under the second prong of the AEDPA, and petitioner
has the burden to rebut this presumption by "clear and
convincing evidence." 28 U.S.C. § 2254(e)(1);
see Nelson v. Walker, 121 F.3d 828, 833 (2d Cir.
Review of the Magistrate Judge's Report
district court reviewing a magistrate judge's report and
recommendation "may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.C. § 636(b)(1)(C).
Parties may raise "specific, " "written"
objections to the report and recommendation "[w]ithin
fourteen days after being served with a copy." Id.;
see also Fed. R. Civ. P. 72(b)(2). A district court
reviews de novo those portions of the report and
recommendation to which timely and specific objections are
made. 28 U.S.C. § 636(b)(1)(C); see also United
States v. Male Juvenile,121 F.3d 34, 38 (2d Cir. 1997).
The district court may adopt those parts of the report and
recommendation to which no party has timely objected,
provided no clear error is apparent from the face of the
record. Lewis v. Zon,573 F.Supp.2d 804, 811
(S.D.N.Y. 2008). The district court will also review the
report and recommendation for clear error where a party's
objections 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." Ortiz v. Barkley,558 F.Supp.2d 444,
451 (S.D.N.Y. 2008) (citations and internal quotation marks
omitted); see also ...