United States District Court, S.D. New York
ORDER ADOPTING R&R
KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE
April 21, 2014, Terrance Monk ("Petitioner"),
proceeding pro se, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, challenging his
August 17, 2005 judgment of conviction for attempted robbery
in the first degree in New York state court and his sentence
of a 10-year determinate term of imprisonment with five years
of postrelease supervision. (Pet. for Writ of Habeas Corpus
("Pet.") 1 (Dkt, No, 1).) On July 18, 2014, the
case was referred to Magistrate Judge Lisa Margaret Smith
pursuant to 28 U.S.C. § 636(b)(1). (See Order
Referring Case to Magistrate Judge (Dkt. No. 5).) On March
24, 2017, Judge Smith issued a Report and Recommendation (the
"R&R") recommending that the Petition be
denied. (See Dkt. No. 18.) For the reasons set forth
below, the Court adopts the R&R.
factual and procedural background of this case is set forth,
in part, in the R&R. (See R. & R. 2-4.) The
Court will not repeat that background here.
R&R was issued on March 24, 2017, (see Dkt. No.
18), and Petitioner's objections were therefore due by
April 7, 2017, (see id.). On April 3, 2017,
Petitioner requested an additional 30 days in which to submit
his objections, (see Dkt. No. 19), and the Court
granted the extension, (see Dkt. No. 20). On May 4,
2017, Petitioner timely filed his objections to the R&R.
(See Dkt. No. 22.)
Standard of Review
Review of a Magistrate Judge's Report
district court reviewing a report and recommendation
addressing a dispositive motion "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 28 U.S.C. § 636(b)(1) and Federal Rule
of Civil Procedure 72(b), a party may submit objections to
the magistrate judge's report and recommendation. The
objections must be "specific" and "written,
" fed. R. Civ. P. 72(b)(2), and must be made "|
w]ithin 14 days after being served with a copy of the
recommended disposition, " id.; see also 28
U.S.C. § 636(b)(1), plus an additional three days when
service is made pursuant to Federal Rule of Civil Procedure
5(b)(2)(C), (D), or (F), see Fed. R. Civ. P. 6(d),
for a total of seventeen days, see Fed. R. Civ. P.
district court evaluating a magistrate judge's report may
adopt those portions of the report (and recommendation] to
which no 'specific, written objection' is made, as
long as the factual and legal bases supporting the findings
and conclusions set forth in those sections are not clearly
erroneous or contrary to law." Adams v. N.Y.Slate
Dep't of Educ, 855 F.Supp.2d 205, 206
(S.D.N.Y.2012), aff'd sub nom. Hochstadt v. N.Y.State
Educ. Dep't, 547 F.App'x 9 (2d Cir. 2013).
However, where a party timely objects to a report and
recommendation, as Petitioner has done here, the district
court reviews de novo the parts of the report and
recommendation to which the party objected. See 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). "When a
I petitioner] simply rehashes the same arguments set forth in
[his] original petition, however, such objections do not
suffice to invoke de novo review of the [r]eport."
Aponie v. Cunningham, No. 08-CV-6748, 2011 WL
1432037, at * 1 (S.D.N.Y. Apr. 11, 2011) (italics omitted);
see also Hall v. Herbert, Nos. 02-CV-2299,
02-CV-2300, 2004 WL 287115, at * 1 (S.D.N.Y. Feb. 11, 2004)
("[T]o the extent that a party simply reiterates his
original arguments, the |c]ourt reviews the report and
recommendation only for clear error, ").
pleadings submitted by pro se litigants are held to a less
strict standard than those drafted by attorneys. See Fed.
Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008)
("Even in the formal litigation context, pro se
litigants are held to a lesser pleading standard than other
parties." (italics omitted)). Because Petitioner is
proceeding pro se, the Court construes his pleadings to raise
the strongest arguments that they suggest. See Triestmcm
v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir.
2006) (per curiam).
Habeas Corpus Review
for a writ of habeas corpus are governed by the Antiterrorism
and Effective Death Penalty Act of 1996 ("AEDPA"),
which provides that “[t]he writ may not issue for any
claim adjudicated on the merits by a state court 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.'" Epps v. Poole, 687 F.3d
46, 50 (2d Cir. 2012) (quoting 28 U.S.C. §
2254(d)(lH2)). In this context, "it is the habeas
applicant's burden to show that the state court applied
[federal law] to the facts of his case in an objectively
unreasonable manner." Woodford v. Visciotti,
537 U.S. 19, 25 (2002) (per curiam). "[A]n unreasonable
application is different from an incorrect one."
Bell v. Cone, 535 U.S. 685, 694 (2002); see also
Schriro v. Landrigan, 550 U.S. 465, 473 (2007)
("The question under AEDPA is not whether a federal
court believes the state court's determination was
incorrect but whether that determination was unreasonable-a
substantially higher threshold.").
2254(d) "reflects the view that habeas corpus is a guard
against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction
through appeal." Harrington v. Richler, 562
U.S. 86, 102-03 (2011) (interna! quotation marks omitted).
Consequently, a federal court must deny a habeas petition in
some circumstances even if the court would have reached a
conclusion different than the one reached by the state court,
because "even a strong ease for relief does not mean the
state court's contrary conclusion was unreasonable."
Id. at 102; see also Cullen v. Pinholster,
563 U.S. 170, 202-03 (2011) ("Even if the [federal]
Court of Appeals might have reached a different conclusion as
an initial matter, it was not an unreasonable application of
our precedent for the j stale court] to conclude that [the
petitioner] did not establish prejudice.");
Hawthorne v. Schneiderman, 695 F.3d 192, 197 (2d
Cir. 2012) ("Although we might not have decided the
issue in the way that the [New York State] Appellate Division
did..........and indeed we are troubled by the outcome we are
constrained to reach--we .... must defer to the determination
made by the state court. . . ." (citation omitted)).
AEDPA, the factual findings of state courts are presumed to
be correct. See 28 U.S.C. § 2254(e)(1);
Nelson v. Walker,121 F.3d 828, 833 (2d Cir. 1997).
A petitioner can rebut this presumption only by "clear
and convincing evidence." 28 U.S.C, § 2254(e)(1);
see also Cotto v. Herbert,331 F.3d 217, 233 (2d
Cir. 2003) (same). Finally, only federal law claims are
cognizable in habeas proceedings. "[I]t is not the
province of a federal habeas court to reexamine state-court
determinations on state-law questions. In conducting habeas
review, a federal court is limited to deciding whether a
conviction violated the Constitution, laws, or treaties of
the United States." Estelle v. McGuire, 502
U.S. 62, 67-68 (1991); see also 28 U.S.C. §
2254(a) ("The Supreme Court, a Justice thereof, a
circuit judge, or a district court shall entertain an
application for a writ of ...