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Gutt v. Griffin

United States District Court, S.D. New York

December 20, 2017

ADOLF GUTT, Petitioner,
v.
THOMAS GRIFFIN, Defendants.

          OPINION

          Colleen McMahon, Chief Judge.

         Petitioner Adolf Gutt, proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in New York County Court for first-degree and second-degree assault, and his resulting 16-year-to-life sentence. ECF No. 1. Before this court is Magistrate Judge Kevin Nathaniel Fox's Report and Recommendation ("R & R"), dated July 6, 2017, recommending Petitioner's habeas petition be dismissed in its entirety. ECF No. 33. Petitioner requested a 45-day extension to respond to the R & R on July 24, 2017, which was granted by Judge Jesse M. Furman on July 25, 2017. ECF No. 35, 36. Petitioner then timely filed an objection to the R & R on September 11, 2017. ECF No. 36. The case was reassigned to The Hon. Thomas P. Griesa on November 2, 2017 and to the undersigned on December 12, 2017.

         For the reasons stated below, the court adopts Judge Fox's R & R in full and denies Petitioner's habeas petition in its entirety.

         BACKGROUND

         The court assumes familiarity with the factual background and procedural history leading to Petitioner's conviction, as recounted thoroughly in the R & R. See ECF No. 33, at 3-7.

         Petitioner's original habeas corpus petition set forth eleven grounds for relief: (1) the evidence was insufficient to support his convictions, ECF No. 1, at 8-10; (2) trial counsel provided ineffective assistance by failing to assert a speedy-trial violation, ECF No. 1, at 10-11; (3) trial counsel provided ineffective assistance by failing to cross-examine the prosecution's eyewitness, ECF No. 1, at 12; (4) trial counsel provided ineffective assistance because he failed to consider Petitioner's prior conviction during plea negotiations, ECF No. 1, at 14; (5) the prosecutor failed to comply with Brady and Rosario disclosure requirements, depriving Petitioner of due process, ECCF No. 1, at 16; (6) prosecutorial misconduct, ECF No. 1, at 17; (7) trial counsel provided ineffective assistance by failing to investigate or secure a hearing on the initial police interaction, ECF No. 1, at 18; (8) the trial court erred in admitting third-party testimony, ECF No. 1, at 19; (9) trial counsel provided ineffective assistance because he did not object to certain testimony during trial, ECF No. 1, at 20-21; (10) unlawful sentence enhancement, ECF No. 1, at 22; and (11) failure to appoint an attorney to represent Petitioner in his first post-conviction ineffective assistance of counsel claim, ECF No. 1, at 23.

         Respondent Thomas Griffin opposed the petition on July 28, 2016. ECF No. 20. In his opposition, Respondent stated that the legal sufficiency claim, failure of discovery claim, prosecutorial misconduct claim, and third-party testimony claim were barred by adequate and independent state grounds and were in any event without merit. The opposition also stated that Petitioner's unlawful sentence enhancement claim and the claim for failure to appoint counsel was unexhausted and without merit. Further, Respondent argued that Petitioner's ineffective assistance of trial counsel claims were meritless. In response, Petitioner contended that he would waive the first five claims in Respondent's opposition-the claims barred by adequate and independent state grounds as well as the unlawful sentence enhancement claims-corresponding to grounds one, five, six, eight, and ten in Petitioner's original petition.

         On July 6, 2017, Magistrate Judge Kevin Nathaniel Fox issued a Report and Recommendation ("R & R") recommending that Petitioner's habeas petition be dismissed in its entirety. ECF No. 33. On September 11, 2017, Petitioner filed a response objecting to the R & R on three grounds.

         First, petitioner contends that the R & R erred in attaching a presumption of correctness to the state court determination with respect to his ineffective assistance of counsel claims. ECF No. 36, at 1-3.

         Second, Petitioner states that the R & R misapplied precedent when analyzing his claim for failure to assert a speedy trial violation. ECF No. 36, at 3.

         Third, Petitioner contends that the R & R erroneously considered the conclusions of the state court as to his sentence enhancement. ECF No. 36, at 6-7.

         LEGAL STANDARD

         District judges reviewing a magistrate judge's report and recommendation "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)(C) (2012). After a report and recommendation is issued, parties have fourteen days to raise "specific" objections to it. Fed.R.Civ.P. 72(b)(2).

         If a party does not make an objection, the court will review the report and recommendation for clear error. IndyMac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07-CV-6865, 2008 WL 4810043, at *1 (S.D.N.Y. Nov. 3, 2008). This is also true if the objections are merely "conclusory or general comments" or "simply reiterate[J the original arguments." Hancock v. Rivera, No. 09-CV-7233 (CS) (GAY), 2012 WL 3089292, at *1 (S.D.N.Y. July 30, 2012) (quoting IndyMac Bank, 2008 WL 4810043, at *1); see also Pinkney v. Progressive Home Health Servs., No. 06-CV-5023 (LTS) (JCF), 2008 WL 2911816, at *1 (S.D.N.Y. July 21, 2008), aff'd, 367 Fed.App'x 210 (2d Cir. 2010). Objections must be "specific and clearly aimed at particular findings . . . such that no party be allowed a 'second bite at the apple' by simply relitigating a prior argument." Pinkney, 2008 WL 2811816, at *1; see also Vega v. Artuz, No. 97-CV-3775, 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002) ("[O]bjections 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.").

         If, however, a party does timely make an objection, the court will conduct a de novo review of the portions of the report and recommendation that the party objects to. See 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); Gench v. Hostgator.com, LLC, No. 14-CV-3592 (RA), 2015 WL 4579147, at *1 (S.D.N.Y. July 29, 2015), appeal dismissed, No. 15-2160 (2d Cir. Oct. 28, 2015) ("A district court must conduct a de novo review of those portions of the report or specified proposed findings or recommendations to which timely objections are made." (quoting Hancock, 2012 WL 3089292, at * 1)). "The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3).

         When a party is appearing pro se, objections are "generally accorded leniency" and are construed "to raise the strongest arguments they suggest." Milano v. Astrue, No. 05-CV-6527, 2008 WL 4410131, at *2 (S.D.N.Y. Sept. 26, 2008). Even a pro se party's objections must be, however, "specific and clearly aimed at particular findings in the magistrate's proposal" for the court to conduct a ...


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