United States District Court, S.D. New York
Colleen McMahon, Chief Judge.
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.
reasons stated below, the court adopts Judge Fox's R
& R in full and denies Petitioner's habeas petition
in its entirety.
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.
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.
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.
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.
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.
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.
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.
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.
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
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).
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 ...