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Nash v. Griffin

United States District Court, S.D. New York

August 30, 2017

SHAND NASH, Petitioner,
THOMAS GRIFFIN, Superintendent, Green Haven Correctional Facility, Respondent.[1]



         On August 29, 2013, Shand Nash ("Petitioner"), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his August 12, 2009 judgment of conviction in New York State court and his concurrent terms of imprisonment of 22 years for manslaughter in the first degree and 15 years for criminal possession of a weapon in the second degree. (Pet. 1 (Dkt. No. 2).) Petitioner filed an Amended Petition (the "Petition") on January 22, 2014. (See Am. Pet. (Dkt. No. 8).) On March 13, 2014, the case was referred to Magistrate Judge Lisa M. Smith ("Judge Smith") pursuant to 28 U.S.C. § 636(b)(1). (See Dkt. No. 11.) On September 28, 2016, Judge Smith issued a Report and Recommendation (the "R&R") recommending that the Petition be denied. (See R&R (Dkt No. 28).) Petitioner filed objections to the R&R on December 12, 2016. (See Pet'r's Obj. to Proposed Recommendation ("Pet'r's Obj.") (Dkt. No. 33).) For the reasons set forth below, the Court adopts the R&R.

         I, Discussion

         A. Standard of Review

         1. Review of a Magistrate Judge's Report & Recommendation

         A 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 Rules of Civil Procedure 5(b)(2)(C)-(F), see Fed. R. Civ. P. 6(d), for a total of 17 days, see Fed. R. Civ. P. 6(a)(1).

         "A 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, 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).[2] "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. 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.").

         2. Habeas Corpus Review

         Petitions 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)(1)-(2)). 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.").

         Section 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. Richter, 562 U.S. 86, 102-03 (2011) (internal 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 from the one reached by the state court, because "even a strong case 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 [state 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)).

         Under 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 habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.").

         B. Petitioner's Objections

         Petitioner asserted four grounds for relief in his Petition: (1) the trial court erred by refusing to read certain testimony back to the jury during deliberations; (2) the trial court was biased in favor of the prosecution; (3) the trial court overlooked improper police conduct indicating that Petitioner's post-arrest statements were coerced; and (4) Petitioner was deprived of due process because the trial court's sentencing determination took into account two crimes for which Petitioner was not convicted. (See generally Am. Pet.) Judge Smith found no merit in any of these contentions. Petitioner objects to Judge Smith's findings with respect to the first three issues.[3]

         1. Failure to Read Back ...

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