United States District Court, S.D. New York
ORDER ADOPTING R&R
KENNETH M. KARAS UNITED STATES DISTRICT JUDGE.
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
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 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).
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). "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.").
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)(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.").
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)).
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
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
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