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Smith v. Schneiderman

United States District Court, S.D. New York

September 5, 2017

ERIC SCHNEIDERMAN, Attorney General for the State of New York, and KATY POOLE, Administrator of Scotland CorrectionInstitution, North Carolina, Respondents.

          OPINION & ORDER


         Petitioner Patrick Smith, an inmate at the Scotland Correctional Institution in Laurinburg, North Carolina, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his future custody for a conviction obtained by the State of New York. Pending before the Court is a Report and Recommendation ("R&R") issued by Magistrate Judge Judith C. McCarthy, as permitted by 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b), recommending that the petition be denied in its entirety. Petitioner filed timely objections to the R&R with the Court, which largely reiterate the arguments made to Judge McCarthy.

         For the following reasons, the Court adopts certain portions of the R&R, and the petition is DENIED in part, but the Court concludes it cannot be dismissed at this juncture.


         The Court presumes familiarity with the factual and procedural background of this case, aptly summarized in Judge McCarthy's R&R.[1] Following Petitioner's state convictions, he timely filed the instant petition for a writ of habeas corpus on November 14, 2013 (ECF No. 1 (“Petition”)), adopting certain arguments made in his counseled brief to the Appellate Division on direct appeal, as well as certain arguments contained in his pro se supplemental brief filed at that time. Specifically, Petitioner asserts that 1) he was denied his speedy trial right under the Interstate Agreement on Detainers, 2) the indictment was jurisdictionally defective, 3) the jury panel did not fairly represent a cross-section of the population, 4) the prosecutor was improperly allowed to cross-examine him about a previous robbery for which he was acquitted, 5) the trial court erred in refusing to uphold his Batson objections during jury selection, 6) he was denied his right of confrontation with respect to DNA evidence presented at trial, and 7) the trial court erred in sentencing him in the aggravating range due to his prior record. (See generally id.)

         On January 9, 2017, Judge McCarthy issued her R&R recommending this Court deny the Petition, finding that most of Smith's claims are procedurally barred, and that, alternatively, none of his claims present grounds for relief from his conviction. (See R&R, ECF No. 38.) Petitioner, after requesting and receiving an extension from this Court, filed timely objections on March 30, 2017 (ECF No. 44 (“Objections”)), generally reiterating the same arguments raised on appeal to the Appellate Division, raised in the petition presently before the Court, and raised in opposition to the motion to dismiss (ECF No. 10 (“Opp'n Mem.”)) considered by Judge McCarthy.


         I. Habeas Petition Seeking Review of a State Court Decision

         “[A] federal court may grant habeas relief only when a state court's decision on the merits was ‘contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by' decisions from th[e] [Supreme] Court, or was ‘based on an unreasonable determination of the facts.'” Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quoting 28 U.S.C. § 2254(d)); see also White v. Wheeler, 136 S.Ct. 456, 460 (2015) (“where, as here, the federal courts review a state-court ruling under the constraints imposed by [the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)], the federal court must accord an additional and ‘independent, high standard' of deference” to adjudications on the merits) (citation omitted). Any state court findings of fact are presumed correct unless the petitioner rebuts the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see Burt v. Titlow, 134 S.Ct. 10, 15 (2013) (“[t]he prisoner bears the burden of rebutting the state court's factual findings”). Additionally, “[f]ederal habeas courts generally refuse to hear claims ‘defaulted . . . in state court pursuant to an independent and adequate state procedural rule.'” Johnson v. Lee, 136 S.Ct. 1802, 1803-04 (2016) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)).

         II. Magistrate Judge's Report and Recommendation

         A magistrate judge may “hear a pretrial matter [that is] dispositive of a claim or defense” if so designated by a district court. Fed.R.Civ.P. 72(b)(1); accord 28 U.S.C. § 636(b)(1)(B). In such a case, the designated magistrate judge “must enter a recommended disposition, including, if appropriate, proposed findings of fact.” Fed.R.Civ.P. 72(b)(1); accord 28 U.S.C. § 636(b)(1). Where a magistrate judge issues a report and recommendation,

[w]ithin fourteen days after being served with a copy, any party may serve and file written objections to such proposed findings or recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.

28 U.S.C. § 636(b); accord Fed. R. Civ. P. 72(b)(2), (3). Courts generally afford pro se litigants latitude and construe their papers “to raise the strongest arguments that they suggest.” Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, a pro se party's objections must be “clearly aimed at particular findings in the magistrate's proposal” rather than a means to take a “‘second bite at the apple' by simply relitigating a prior argument.” Singleton v. Davis, No. 03 Civ. 1446, 2007 WL 152136, at *1 (S.D.N.Y. Jan. 18, 2007) (citation omitted).

         It is within the Court's discretion to “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). In doing so, “[t]he district court ‘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.'” Olivares v. Ercole, 975 F.Supp.2d 345, 351 (S.D.N.Y. 2013) (citations omitted). The clearly erroneous standard also applies when a party makes only conclusory objections, or simply reiterates his original arguments. See Kirk v. Burge, 646 F.Supp.2d 534, 538 (S.D.N.Y. 2009).


         Petitioner filed objections to every claim addressed in the R&R. Generally, under Section 636(b)(1), when written objections to a magistrate judge's report and recommendation are timely filed, the district court will make a de novo review “of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). “However, objections that are merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition will not suffice to invoke de novo review” of those recommendations. Vega v. Artuz, No. 97 Civ. 3775 (LTS) (JCF), 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002) (citing Vargas v. Keane, No. 93 Civ. 7852 (MBM), 1994 WL 693885 (S.D.N.Y. Dec. 12, 1994)); Klawitter v. Chater, No. 93 Civ. 0054 (JTE) (CEH), 1995 WL 643367 at *1 (W.D.N.Y. Oct. 18, 1995).

         Petitioner's objections to the R&R often simply reiterate his original arguments. (Compare, e.g., Objections at 4 (“Petitioner hereby reiterates his contention that the indictment . . . is duplicitous on its face and tracks statutory language almost identically”), with Petition at 11 (raising the issue of whether the state courts erred “by allowing the case to be tried on an indictment that was constitutionally defective”), and Opp'n Mem. at 3 (“Petitioner contends that the indictment is defective, in that, it is a recital of statutory language and the he was prejudiced by its duplicitous effect”).) While Petitioner makes facial attempts to object to Judge McCarthy's recommendations, (see Objections at 3), his objections are not aimed at any particular findings or recommendations in Judge McCarthy's R&R, and are simply a means to take a “second bite at the apple, ” restating the same arguments that were previously raised. Without any specific objections-e.g., noting an area of law that Judge McCarthy misapplied or an incorrect factual finding, the Court need only review the R&R for clear error.

         Nevertheless, even upon de novo review, most of Petitioner's federal claims, even liberally construed, are barred by procedural default; and, of those that are not barred, only one presents an issue warranting habeas review.

         I. Procedurally Barred ...

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