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Fernandez v. Ercole

United States District Court, S.D. New York

May 31, 2017

LARRY FERNANDEZ, Petitioner,
v.
WILLIAM ERCOLE, Respondent.

          OPINION & ORDER ADOPTING REPORT & RECOMMENDATION

          RONNIE ABRAMS, United States District Judge

         Petitioner Larry Fernandez, proceeding pro se, petitions for a writ of habeas corpus challenging his New York state convictions for attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. Before the Court is the Report and Recommendation of Magistrate Judge Pitman, which recommends that the Court deny Fernandez's petition. Also before the Court are Fernandez's motions for leave to amend his petition and for a stay of this petition. For the reasons set forth below, the Court adopts Judge Pitman's thorough and well-reasoned Report and Recommendation, denies Fernandez's motion for leave to amend, and denies Fernandez's motion for a stay of this petition.

         BACKGROUND [1]

         On or about September 16, 2005, Fernandez shot Martin Santos in the Bronx. See Trial Tr. at 161-63, 167. Santos suffered serious injuries to his right wrist and left leg, which was subsequently amputated from the thigh down. See Id. at 178, 3344-2. On June 27, 2008, a jury convicted Fernandez of attempted murder in the second degree, assault in the first degree, criminal possession of a weapon in the second degree, and criminal possession of a weapon in the third degree. See Id. at 468-69. Fernandez was sentenced to determinate terms of imprisonment of twenty-five years for attempted murder and assault and fifteen years for criminal possession of a weapon in the second degree, to be followed by a five-year term of post-release supervision, and an indeterminate term of imprisonment of two to seven years for criminal possession of a weapon in the third degree. See Decl. of Marianne Stracquadanio ¶ 6 (Dkt. 8).[2] His sentences were to run concurrently but consecutively to a previously imposed federal sentence. See id.

         Fernandez appealed his conviction to the Appellate Division of the Supreme Court of New York, First Department. Fernandez argued that the trial court violated his right to a fair trial by admitting evidence that he sold marijuana and by admitting photographs of Santos's left leg. See Stracquadanio Decl. Ex. 1 at 18-33. On January 31, 2013, the First Department rejected both claims. See Stracquadanio Decl. Ex. 3 at 78-79. The First Department reasoned that the trial court was within its discretion to admit evidence that Fernandez sold marijuana to Santos, which "provided necessary background information and tended to place aspects of the victim's testimony in a believable context" and whose prejudicial effect, if any, "was outweighed by [its] probative value." Id. at 78. The First Department also determined that the trial court did not abuse its discretion in admitting photographs of Santos's injuries, which "were relevant to establish elements of the charges, and were not unduly gory or inflammatory." Id. at 79. Fernandez applied for leave to appeal to the New York Court of Appeals, which denied his application on April 29, 2013. See People v. Fernandez, 988 N.E.2d 892 (N.Y. 2013).

         On April 21, 2014, Fernandez filed the instant habeas petition, which challenged the admission of evidence that he sold marijuana and photographs of Santos's injuries at trial. See Pet. (Dkt. 2). Judge Pitman issued a Report and Recommendation (the "Report"), recommending that the Court deny Fernandez's petition. See Report (Dkt. 13). Fernandez timely filed objections to the Report, see Obj. (Dkt. 16), to which Respondents did not respond.

         Fernandez then moved for leave to amend his petition to include unexhausted claims. See Mot. to Amend (Dkt. 18). Specifically, Fernandez sought to add claims that the prosecution violated his rights under Brady v. Maryland, 373 U.S. 83 (1963) by failing to disclose (1) statements of an eyewitness, Vannesa Tejada, to law enforcement officials following the shooting, and (2) Santos's prior arrests for criminal possession of a weapon and criminal sale of marijuana. See Id. Fernandez also sought to add a claim that the prosecution violated his Confrontation Clause rights by refusing to permit cross-examination of Tejada. See Id. In a separate motion, Fernandez requested a stay of his habeas petition so that he could exhaust these claims in state court. See Mot. to Stay (Dkt. 19).

         DISCUSSION

         A. Merits of the Petition

         Fernandez's petition challenges the state court's admission of evidence regarding his history of dealing marijuana and photographs of Santos's injuries. The Court concludes that Fernandez's claims lack merit and adopts Judge Pitman's recommendation to deny the petition.

         1. Legal Standards

         A district court "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). Under Federal Rule of Civil Procedure 72(b), a party may make "specific written objections to the proposed findings and recommendations" within fourteen days of being served with a copy of a magistrate judge's recommended disposition. Fed.R.Civ.P. 72(b)(2). A district court must review de novo "those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). "However, when the objections simply reiterate previous arguments or make only conclusory statements, the Court should review the report for clear error." George v. Prof'l Disposables Int'l, Inc., No. 15-CV-3385 (RA), 2016 WL 6779957, at *1 (S.D.N.Y. Nov. 16, 2016) (quoting Brown v. Colvin, 73 F.Supp.3d 193, 197 (S.D.N.Y. 2014)). "Objections of pro se litigants are generally accorded leniency and construed to raise the strongest arguments that they suggest." McNeil v. Capra, No. 13-CV-3048 (RA), 2015 WL 4719697, at *3 (S.D.N.Y. Aug. 7, 2015) (citation omitted). "Nonetheless, even a.pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a 'second bite at the apple' by simply relitigating a prior argument." Id. (citation omitted).

         Under the Antiterrorism and Effective Death Penalty Act of 1995 ("AEDPA"), a federal court may not grant a habeas petition on the basis of a claim adjudicated on the merits in state court unless the adjudication of that claim resulted in a decision that was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " or (2) "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). "A state court decision is 'contrary to . . . clearly established Federal law, as determined by the Supreme Court' when 'the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts."' Carmichael v. Chappius, 848 F.3d 536, 544 (2d Cir. 2017) (alterations in original) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 (2000)). "A state-court decision is an 'unreasonable application of clearly established federal law 'if the state court identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the [petitioner's] case.'" Fuentes v. T. Griffin, 829 F.3d 233, 244-45 (2d Cir. 2016) (alterations omitted) (quoting Lockyer v. Andrade, 538 U.S. 63, 75 (2003)). Ultimately, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011).[3]

         In general, "[i]ssues regarding the admissibility of evidence in state court concern matters of state law and are not subject to federal review unless the alleged errors are so prejudicial as to constitute fundamental unfairness." Nunez v. Conway, 923 F.Supp.2d 557, 568 (S.D.N.Y. 2013) (citation omitted). "Thus, in evaluating a habeas petitioner's challenge to a state court's evidentiary ruling, a habeas court should engage in a two-part analysis, examining (1) whether the trial court's evidentiary ruling was erroneous under New York State law, and (2) whether the error amounted to the denial of the constitutional right to a fundamentally fair trial." Alston v. Griffin, No. 12-CV-8092 (CS) (PED), 2014 WL 6663458, at *15 (S.D.N.Y. Oct. 16, 2014) (citing Perez v. Phillips, 210 F.App'x 55, 57 (2d Cir. 2006) (summary order), and Wade v. Mantello, 333 F.3d 51, 59 (2d Cir. 2003)).

         2. Evidence of ...


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