United States District Court, S.D. New York
OPINION & ORDER ADOPTING REPORT &
ABRAMS, United States District Judge
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.
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.
His sentences were to run concurrently but consecutively to a
previously imposed federal sentence. See id.
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).
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
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).
Merits of the Petition
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.
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).
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).
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)).
Evidence of ...