United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
LORETTA A. PRESKA Senior United States District Judge.
the Court is a motion to correct, vacate, and/or set aside
the sentence pursuant to Title 28, United States Code,
Section 2254 filed on February 25, 2011, by pro se
petitioner Eugene Hamilton ("Hamilton" or
"Petitioner"). (Mot. Vacate, Feb. 25, 2011, dkt.
no. 1}. On April 8, 2011, this case was referred to
Magistrate Judge Debra Freeman. (Reference Order, Apr. 8,
2011, dkt. no. 6). After Petitioner's initial submission,
he obtained counsel and filed a subsequent memorandum in
support of his motion. (Pet. Mem., Apr. 26, 2011, dkt. no.
10). Respondent, the Superintendent of Eastern New York
Correctional Facility, filed an opposition on July 28, 2011,
(Opp., July 28, 2011, dkt. no. 15), and Petitioner filed a
reply memorandum. (Reply, Aug. 17, 2011, dkt. no. 16). On
September 10, 2015, Magistrate Judge Freeman issued a Report
and Recommendation ("Report") in which she
recommended that Petitioner's motion be denied in its
entirety, (R&R, Sept. 25, 2015, dkt. no. 19), and
Petitioner timely filed his Objections. (Objections, Oct. 26,
2015, dkt. no. 23).
reasons set forth below, the Court denies each of
Petitioner's Objections and adopts Judge Freeman's
Report and Recommendation in its entirety.
purposes of this Order the Court assumes familiarity with the
relevant factual and procedural history of this case as set
forth in Magistrate Judge Freeman's Report and
Recommendation and incorporates the Report's summary for
this background. (R&R at 2-26).
reviewing a petition for habeas corpus relief a federal court
must only consider whether the petitioner is in custody
pursuant to the state court judgment in violation of the
Unites States Constitution or laws or treaties of the United
States. 28 U.S.C. § 2254(a). The Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA) requires that
federal courts conducting this review give deference to the
state court decision. Renico v. Lett, 559
U.S 766, 769 (2010). Therefore, to obtain relief a petitioner
must rebut the presumption of the state court's
correctness by clear and convincing evidence. Garguilio
v. Heath, 293 F.R.D. 146, 152 (E.D.N.Y. 2013) . This
requires a petitioner to show that 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."
28 U.S.C. § 2254(d)(1). Importantly, a decision "is
not unreasonable merely because the federal habeas court
would have reached a different conclusion." Wood v.
Allen, 558 U.S. 290, 301 (2010). Rather, a petitioner
must show that that the state court's application of the
law was objectively unreasonable. Wiggins v.
Smith, 539 U.S. 510, 520-21 (2003).
state law default precludes a state court from reviewing a
claim, this claim typically cannot be reviewed by federal
courts either. Ylst v. Nunnemaker, 501 U.S. 797, 801
(1991). However, if a petitioner can show cause for the
procedural default and actual prejudice resulting therefrom,
a Petitioner can obtain review of such a claim. Gray v.
Netherland, 518 U.S. 152, 162 (1996).
assistance of counsel can constitute an adequate showing of
cause for procedural default, but only if counsel's
performance is in violation of the defendant's Sixth
Amendment right to counsel. Aparicio v. Arutz, 269
F.3d 78, 91 (2d Cir. 2001). Additionally, the ineffective
assistance claim must have been raised and exhausted in the
state court in order for review of such a claim by a federal
habeas court. Edwards v. Carpenter, 529 U.S. 446,
452 (2000). The Supreme Court has instructed that to show
counsel's performance fell below that which was
guaranteed to the defendant by the Sixth Amendment, a
defendant must show that (1) counsel's representation
fell below an objective standard of reasonableness and (2)
there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceedings would
have been different. Strickland v. Washington, 466
U.S. 668, 688, 694 (1984) . Habeas courts must "indulge
a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance."
Id. at 689.
prejudice prong for the procedural default requires not just
a mere "possibility of prejudice" but rather that
the errors raised in the petition "worked to [the
petitioner's] actual and substantial disadvantage."
United States v. Frady, 456 U.S. 152, 170 (1982).
This burden on petitioner of showing prejudice is higher in
this instance than on direct appeal, id. at 166,
because here the prejudice must overcome society's
interest in the finality of criminal judgments. Id.
at 175. Moreover, if a petitioner's claim lacks merit, he
will not be able to establish the requisite prejudice to
overcome the claim's procedural bar. McDowell v.
Heath, No. 09cv7887 (RO) (MHD), 2013 WL 2896992, at
*25 (S.D.N.Y. June 13, 2013).
certificate of appealability ("COA"} should be
granted when a petitioner "has made a substantial
showing of the denial of a constitutional right." 28
U.S.C. § 2253(c)(2). This has been interpreted by the
Supreme Court to be satisfied when "jurists of reason
would find it debatable whether the petition states a valid
claim of the denial of a constitutional right. Slack v,
McDaniel, 529 U.S. 473, 478 (2000). This does not
require petitioner to show that he or she would prevail on
the merits. Lucidore v. New York State Div. of
Parole, 209 F.3d 107, 112 (2d Cir). Accordingly, a court
"should not decline an application for a COA merely
because it believes the applicant will not demonstrate
entitlement to relief." Miller-El v. Cockrell,
537 U.S. 322, 337 (2003).
reviewing a Report and Recommendation of a magistrate judge,
a district court "may adopt those portions of the report
to which no objections have been filed, and which are not
factually erroneous." Walker v. Vaughan, 216
F.Supp.2d 290, 292 (S.D.N.Y. 2002}. A district court must
conduct a de novo review of the portions of a
magistrate judge's report and recommendation to which a
party files timely written objections. See Reyes v.
LaValley, No. 10-cv-2524 (KAM), 2013 WL 4852313, at * 1
(E.D.N.Y. Sept. 10, 2013). Petitioner should "explain to
the reviewing Court, citing proper authority, why the
magistrate judge's application of law to facts is legally
unsound." Johnson v. Artus, No. 07 CIV. 5905
SAS FM, 2009 WL 1505177, at *1 (S.D.N.Y. May 28, 2009).
However, if a party "makes only conclusory or general
objections, or simply reiterates his original argument, the
Court reviews the Report and Recommendation only for clear
error." Walker, 216 F.Supp.2d at 292.
Sufficiency of ...