United States District Court, S.D. New York
ORDER ADOPTING R&R
KENNETH M. KARAS, District Judge.
November 1, 2013, Felix Bruno ("Petitioner"),
proceeding pro se, filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 (the
"Petition"), challenging his May 26, 1998 judgment
of conviction in New York state court and his concurrent
terms of imprisonment of 25 years to life for second degree
murder and seven and one-half to 15 years for second degree
criminal possession of a weapon. (See Pet. 1 (Dkt.
No. 1).) On April 7, 2014, the case was referred to
Magistrate Judge Paul E. Davison ("Judge Davison"),
pursuant to 28 U.S.C § 636(b)(1). (See Dkt.
(minute entry for Apr. 7, 2014).) On October 25, 2016, Judge
Davison issued a Report & Recommendation (the
"R&R"), recommending that the Petition be
denied. (See R&R 17 (Dkt No. 27).) Petitioner
filed objections to the R&R on November 10, 2016.
(See Pet'r's Obj. to Proposed Recommendation
("Pet'r's Obj.") (Dkt. No.
30).) For the reasons set forth below, the Court
adopts the R&R.
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. 6(a)(1).
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.State
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 the
parts of the report and recommendation to which the party
objected de novo. See 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b)(3). "When a [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." Aponte 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. Q2-CV-2299, 02-CV-23Q0, 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
federal court "will not consider an issue of federal law
on direct review from a judgment of a state court if that
judgment rests on a state-law ground that is both
'independent' of the merits of the federal claim and
an 'adequate' basis for the court's
decision." Harris v. Reed, 489 U.S. 255, 260
(1989). A state court decision is "independent"
when it "fairly appears" to rest primarily on state
law. Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir.
2006) (citing Coleman v. Thompson, 501 U.S. 722, 740
(1991)). A decision is "adequate" if it is
'"firmly established and regularly followed' by
the state in question." Garcia v. Lewis, 188
F.3d 71, 77 (2d Cir. 1999) (some internal quotation marks
omitted) (quoting Ford v. Georgia, 498 U.S. 411,
423-24 (1991)). "Although this doctrine originated in
the context of state-court judgments for which the
alternative state and federal grounds were both
'substantive' in nature, the doctrine 'has been
applied routinely to state decisions forfeiting federal
claims for violation of state procedural rules.'"
Harris, 489 U.S. at 260-61; see also
Coleman, 501 U.S. at 732 ("[A] habeas petitioner
who has failed to meet the State's procedural
requirements for presenting his federal claims has deprived
the state courts of an opportunity to address those claims in
the first instance.").
it fairly appears that the state court rested its decision
primarily on federal law, [a] [c]ourt may reach the federal
question on review" unless the state court "clearly
and expressly state[d] that its judgment rest[ed] on a state
procedural bar." Harris, 489 U.S. at 261, 263
(internal quotation marks omitted). This "plain
statement" rule applies "only when it fairly
appears that a state court judgment rested primarily on
federal law or was interwoven with federal law."
Coleman, 501 U.S. at 739. When analyzing whether a
state court decision rested primarily on federal law or was
interwoven with federal law, the court should consider
"(1) the face of the state-court opinion, (2) whether
the state court was aware of a procedural bar, and (3) the
practice of state courts in similar circumstances."
Jimenez, 458 F.3d at 145 n.16 (2d Cir. 2006). In
cases where there is no evidence the state court rested its
decision on federal law, a federal habeas court may
"presume that silence in the face of arguments asserting
a procedural bar indicate[s] that [an] affirmance was on
state procedural grounds." Quirama v. Michele,
983 F.2d 12, 14 (2d Cir. 1993). "Dismissal for a
procedural default is regarded as a disposition of the habeas
claim on the merits." Aparicio v. Artuz, 269
F.3d 78, 90 (2d Cir. 2001).
York permits criminal defendants only one application for
direct review. See N.Y. Comp. Codes R. & Regs.
tit. 22, § 500.20(a)(2); Jimenez, 458 F.3d at
149 ("[The petitioner] has already taken his one direct
appeal [under New York law].;.."). "New York
procedural rules bar its state courts from hearing either
claims that could have been raised on direct appeal but were
not, or claims that were initially raised on appeal but were
not presented to the Court of Appeals." Sparks v.
Burge, No. 06-CV-6965, 2012 WL 4479250, at *4 (S.D.N.Y.
Sept. 28, 2012). Accordingly, in those situations, a
petitioner no longer has any available state court remedy,
and the unexhausted claims are therefore deemed exhausted,
but procedurally barred. See Carvajal v. Artus, 633
F.3d 95, 104 (2d Cir. 2011) ("If a habeas applicant
fails to exhaust state remedies by failing to adequately
present his federal claim to the state courts so that the
state courts would deem the claim procedurally barred, we
must deem the claim procedurally defaulted." (alteration
and internal quotation marks omitted)); see also
Aparicio, 269 F.3d at 90 (noting the reality that
deeming an unpresented claim to be exhausted is "cold
comfort"). "An applicant seeking habeas relief may
escape dismissal on the merits of a procedurally defaulted
claim only by demonstrating 'cause for the default and
prejudice' or by showing that he is 'actually
innocent' of the crime for which he was convicted."
Carvajal, 633 F.3d at 104 (quoting
Aparicio, 269 F.3d at 90); see also Dretke v.
Haley, 541 U.S. 386, 388 (2004) ("[A] federal court
will not entertain a procedurally defaulted constitutional
claim in a petition for habeas corpus absent a showing of
cause and prejudice to excuse the default, " or a
showing that the petitioner "is actually innocent of the
underlying offense .. . .").
R&R, Judge Davison found that "the instant habeas
petition became time-barred as of April 25, 1997, "
(R&R 13), and that Petitioner was neither entitled to
equitable tolling nor an equitable exception to the
limitations period, (see Id. at 13-17).
raises objections to the R&R, which can be broadly
categorized as identifying (1) issues with the testimony
offered at trial and (2) a claim pursuant to Schlup v.
Delo,513 U.S. 298, 324 (1995), detailing new
purportedly reliable evidence that was not presented at
trial. (See generally Pet'r's Obj.). Yet,
none of Petitioner's objections speaks to the time bar
that Judge Davison found precluded the relief Petitioner
seeks. While new evidence may entitle a petitioner to an
equitable exception to a statute of limitations, Judge
Davison correctly found that Petitioner had not demonstrated
that "more likely than not, in light of the new
evidence, no reasonable juror would find him guilty beyond a
reasonable doubt." House v. Bell,547 U.S. 518,
538 (2006). Put ...