United States District Court, S.D. New York
OPINION AND ORDER
S. ROMAN, UNITED STATES DISTRICT JUDGE.
about October 15, 2014, Petitioner, Alphonso Kirksey
("Kirksey" or "Petitioner"), a pro se
inmate convicted of, inter alia, attempted murder, assault,
and criminal possession of a weapon, filed the instant writ
of habeas corpus pursuant to 28 U.S.C. § 2254 alleging
that his 2009 state court conviction was unconstitutionally
obtained. Petitioner alleges that: his trial counsel was
ineffective in failing to establish an intoxication defense,
counsel was ineffective in failing to assert a double
jeopardy defense, counsel's "ineffectiveness rose to
the level of a complete denial of counsel, the quantity of
errors as a whole and their cumulative effect deprived
petitioner of a fair trial, Petitioner was denied a fair
trial because he was forced to participate in the trial in
prison clothes, Petitioner was deprived of a fair trial by
the trial judge's failure to ___himself after exhibiting
bias towards Petitioner, the assault counts relative to
Officer Eltz and Connie Sackett should have been separated
(severed) from the attempted murder trial, the trial court
erred in failing to preclude evidence of prior bad act
altercation between petitioner and victim Sackett, the trial
court erred in precluding Sackett's post incident letters
to Petitioner, and Petitioner's conviction was against
the weight of the evidence. (Docket No. 18.) By decision and
order, dated July 31, 2017, the Honorable Magistrate Judge
Lisa M. Smith ("MJ Smith") issued a report and
recommendation ("R&R"), pursuant to 28 U.S.C.
§ 636(b) and Federal Rule of Civil Procedure 72(b),
recommending the petition be dismissed in it entirety.
Despite being granted an extension of time, Petitioner has
not filed an objection to the R&R. For the following
reasons, the Court adopts the R&R in its entirety, and
petition is DISMISSED.
a jury trial in New York Supreme Court, Orange County,
Petitioner was convicted of multiple criminal offenses,
including Attempted Murder in the First Degree (N.Y. Penal
Law §110-125.27), Attempted Murder in the Second Degree
(N.Y. Penal Law §110-125.25), Assault in the First
Degree (N.Y. Penal Law § 120.10), and Criminal
Possession of a Weapon in the Third Degree (N.Y. Penal Law
§ 265.02). Petitioner was sentenced to an aggregate term
of imprisonment of twenty-five years to life, to be followed
by five years of post release supervision. (Docket No. 18,
Ex. 13) Petitioner unsuccessfully appealed his conviction to
the New York State's intermediate appellate court,
People v. Kirksey, 107 A.D.3d 825 (2nd Dep't.
2013) (Exhibit 17.), and was denied leave to appeal to the
New York State Court of Appeals. People v. Kirksey,
22 N.Y.3d 956 (2013). On or about October 6, 2014, Petitioner
filed the instant petition challenging the constitutionality
of his detention. Thereafter, Petitioner filed an amended
petition. In his amended petition, the operative petition,
Petitioner asserts multiple claims sounding in ineffective
assistance of counsel, lack of legal sufficiency for the
conviction and procedural due process errors.
Habeas Petition Reviewing a State Court Decision
claim has been adjudicated on the merits in a state court
proceeding, a prisoner seeking habeas relief must establish
that 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." 28 U.S.C. § 2254(d)(1); Cousin v.
Bennett, 511 F.3d 334, 337 (2d Cir. 2008). 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).
Magistrate Judge's Report and Recommendation
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); accord28
U.S.C. § 636(b)(1)(B). In such a case, the 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). When 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. A judge of the
court 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); accord Fed. R. Civ. P.
72(b)(2), (3). However, a district court "may adopt
those portions of the Report to which no objections have been
made and which are not facially erroneous." Wilds v.
United Parcel Sen., Inc., 262 F.Supp.2d 163, 170
(S.D.N.Y. 2003) (quoting La Torres v. Walker, 216
F.Supp.2d 157, 159 (S.D.N.Y. 2000)).
extent a petition makes specific objections to an R&R,
those parts must be reviewed de novo. 28 U.S.C. 636(b)(1);
Fed.R.Civ.P. 72(b); United States v. Male Juvenile,
121 F.3d 34, 38 (2d Cir. 1997). In a de novo review,
a district court must consider the "[r]eport, the
record, applicable legal authorities, along with Plaintiffs
and Defendant's objections and replies." Diaz v.
Girdich, No. 04-cv-5061 (RJH), 2007 WL 187677, at *1
(S.D.N.Y. Jan. 23, 2007) (internal quotation marks omitted).
But to the extent "a petition makes only general and
conclusory objections ... or simply reiterates the original
arguments, the district court will review the report and
recommendations strictly for clear error." Harris v.
Burge, No. 04-cv-5066 (HB) (FM), 2008 WL 772568, at * 6
(S.D.N.Y. Mar. 25, 2008). The distinction turns on whether a
petitioner's claims are "clearly aimed at particular
findings in the magistrate's proposal" or are a
means to take a '"second bite at the apple1 by
simply relitigating a prior argument." Singleton v.
Davis, No. 03-cv-1446 LTS HBP, 2007 WL 152136, at *1
(S.D.N.Y. Jan. 18, 2007) (citation omitted).
"generally accord leniency" to objections of pro
se litigants and construe them "to raise the strongest
arguments that they suggest." Milano v. Aslrue,
No. 05-cv-6527 (KMW) (DCF), 2008 WL 4410131, at *2 (S.D.N.Y.
Sept. 26, 2008) (internal quotations and citations omitted).
However, the pro se party's objections "must be
specific and clearly aimed at particular findings in the
magistrate's proposal, such that no party be allowed a
'second bite at the apple' by simply relitigating a
prior argument." Pinkney v. Progressive Home Health
Servs., No. 06 Civ. 5023 (LTS) (JCF), 2008 WL 2811816,