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Swinton v. Racette

United States District Court, S.D. New York

June 20, 2017

REGINALD SWINTON, Petitioner,
v.
STEVEN RACETTE, Superintendent, Respondent.

          Reginald Swinton Auburn, NY Pro se

          Thomas B. Litsky Assistant Attorney General of Counsel for Eric T. Schneiderman, Attorney General of the State of Counsel for Respondent

          MEMORANDUM AND OPINION

          VERNONA.BRODERICK, UNITED STATES DISTRICT JUDGE

         Pro se Petitioner Reginald Swinton filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 on December 11, 2012 (“Petition”). Before me is Magistrate Judge Maas's September 20, 2016 Report and Recommendation (“Report” or “R&R”) recommending that the Petition be denied in full. (Doc. 48.) Petitioner filed written objections to the Report. (Docs. 56, 57.) I have reviewed the Report and find it to be thorough and accurate in all respects. For the reasons stated herein, I ADOPT the Report in its entirety, and the Petition is DENIED.

         The factual and procedural history is thoroughly set out in the Report, familiarity with which is assumed. Briefly, Petitioner was convicted following a jury trial in New York Supreme Court, New York County of two counts of rape in the first degree, three counts of criminal sexual acts in the first degree, three counts of burglary in the second degree, and three counts of attempted robbery in the third degree. He was sentenced to an aggregate indeterminate term of 150 years to life. The conviction and sentence were affirmed on appeal. See People v. Swinton, 928 N.Y.S.2d 693 (2011).

         I. Legal Standards of Review A. Review of Magistrate Judge's Report

         Reviewing a magistrate judge's report and recommendation, I “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). I review de novo the portions of the Report to which timely and specific written objections are made. Id; Fed. R. Civ. P. 72(b)(3). “The objection must be specific and clearly aimed at particular findings in the R&R ” Bussey v. Rock, No. 12-CV-8267 (NSR)(JCM), 2016 WL 7189847, at *2 (S.D.N.Y. Dec. 8, 2016) (internal quotation marks omitted). “Otherwise, the court will review the R&R strictly for clear error when a party makes only conclusory or general objections, or simply reiterates the original arguments.” Id

         B. AEDPA

         Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 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). A state court's factual findings are presumed correct unless the Petitioner comes forward with clear and convincing evidence to rebut the presumption. 28 U.S.C. § 2254(e)(1).

         C. Pro Se Submissions

         “Pro se parties are generally accorded leniency when making objections.” Hill v. Miller, No. 15 Civ. 6256 (KMW)(JCF), 2016 WL 7410715, at *1 (S.D.N.Y. Dec. 21, 2016) (quoting Pinkney v. Progressive Home Health Servs., No. 06 Civ. 5023, 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008)). “Nonetheless, even a pro se party's objections to a[n] [R & R] 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.

         II. Discussion

         Petitioner objects to each of Judge Maas's conclusions and recommendations, and repeats substantially the same arguments that Judge Maas considered and rejected. Specifically, he generally objects to the Report's conclusions that: (1) Petitioner's “weight of the evidence” argument is not a cognizable federal habeas claim, (Doc. 56-1 at 10-11); (2) there was sufficient evidence to support Petitioner's convictions, (id. at 11-14); (3) the trial court's jury instructions and evidentiary rulings do not warrant habeas relief, (id. at 14-24); (4) Petitioner's Sandoval claim fails, (id at 24-28); (5) Petitioner's sentencing claims are not cognizable on federal habeas review, (id at 28-31); (6) violation of the state speedy trial law is not cognizable on federal habeas review, (id at 31-32, 34-36; Doc. 57 at 4-18); (7) there was no Sixth Amendment speedy trial violation, (Doc. 57 at 18-34); and (8) Petitioner's appellate counsel was not ineffective, (id at 35-41).[1] Even on de novo review, as demonstrated below, all of these claims fail.

         A. Weight ...


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