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Fair v. Duffy

United States District Court, S.D. New York

April 18, 2017

KEITH FAIR, Petitioner,
v.
WARDEN EDMUND DUFFY, Respondent.

          OPINION AND ORDER

          Edgardo Ramos, U.S.D.J.

         Pro 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.

         On July 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").[1] Doc. 12. For the reasons stated herein, the Court adopts the R&R in its entirety, and the Petition is DENIED.

         I. BACKGROUND

         The 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.

         Upon 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).

         Fair 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.

         On July 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.

         II. STANDARD OF REVIEW

         A. AEDPA Review of the State Court Proceedings

         Under 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).

         "Th[e] 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. 1997).

         B. Review of the Magistrate Judge's Report

         A 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 ...


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