United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
Vincent L. Briccetti United States District Judge
before the Court is Magistrate Judge Paul E. Davison's
Report and Recommendation (“R&R”), dated
November 9, 2017 (Doc. #42), on Donavan Crawford's
pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254.
bench trial, petitioner was convicted in Dutchess County
Court of second degree criminal possession of a weapon
pursuant to New York Penal Law § 265.03(3). The court
sentenced petitioner as a second felony offender to a
determinate term of imprisonment of nine and one-half years,
followed by five years post-release supervision. The
Appellate Division, Second Department, affirmed the
conviction. People v. Crawford, 96 A.D.3d. 964 (2d
Dep't 2012). The Court of Appeals denied leave to appeal.
People v. Crawford, 20 N.Y.3d 931 (Table) (2012).
Petitioner also filed a number of post-trial and
post-conviction motions, all of which were denied.
now contends his conviction and sentence were unlawful
because (i) the prosecution failed to meet its burden of
disproving petitioner's temporary and lawful possession
defense; (ii) the prosecution offered no evidence to rebut
petitioner's defense of temporary, innocent possession;
(iii) trial counsel was ineffective; (iv) the cases offered
by the prosecution do not support the verdict; and (v)
petitioner was not read his Miranda rights at any
time before or after his arrest.
Davison recommended denying the petition.
Court agrees with that recommendation. Accordingly, for the
following reasons, the R&R is adopted as the opinion of
the Court, and the petition is DENIED.
Standard of Review
district court 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).
Parties may raise objections to the report and
recommendation, but the objections must be “specific[,
] written, ” and submitted within fourteen days after
being served with a copy of the recommended disposition,
Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1), or within
seventeen days if the parties are served by mail.
See Fed.R.Civ.P. 6(d). .
party submits a timely objection to a report and
recommendation, the district court reviews the parts of the
report and recommendation to which the party objected under a
de novo standard of review. 28 U.S.C. §
636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3). The
district court may adopt those portions of the recommended
ruling to which no timely objections have been made, provided
no clear error is apparent from the face of the record.
See Wilds v. United Parcel Serv., Inc., 262
F.Supp.2d 163, 169 (S.D.N.Y. 2003). The clearly erroneous
standard also applies when a party makes only conclusory or
general objections, or simply reiterates his original
arguments. See Ortiz v. Barkley, 558 F.Supp.2d 444,
451 (S.D.N.Y. 2008). Because petitioner is proceeding pro
se, the Court “will ‘read [his] supporting
papers liberally, and . . . interpret them to raise the
strongest arguments that they suggest.'”
Id. (quoting Burgos v. Hopkins, 14 F.3d
787, 790 (2d Cir. 1994)).
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), when a state court denies a federal
claim on the merits, a habeas petitioner is entitled to
relief on that claim only if he can show the state court
either (i) made a decision contrary to, or unreasonably
applied clearly established federal law as determined by the
Supreme Court, or (ii) unreasonably determined the facts in
light of the evidence presented in the state court
proceeding. 28 U.S.C. § 2254(d)(1), (2). When a state
court denies a federal claim on a procedural ground that is
“firmly established and regularly followed” in
that state, a federal court may not even review the claim
unless the petitioner shows either cause and prejudice for
the failure to comply with state procedural rules, or that he
is actually innocent. Clark v. Perez, 510 F.3d 382,
391-93 (2d Cir. 2008).
filed timely objections to the R&R. (Doc. #43).
Petitioner objects to the R&R's conclusion that he
received effective assistance of counsel. Specifically,
petitioner asserts trial counsel (i) failed to request a
psychiatric hearing; (ii) refused petitioner's demand for
a jury trial; and (iii) failed to object to hearsay
testimony. These objections largely restate petitioner's
original arguments. Nevertheless, in consideration of
petitioner's pro se status, the Court has
carefully reviewed the R&R and the underlying record
de novo as to any specific objection the petitioner
has made. Having done so, the Court finds no error, clear or
otherwise, in Judge Davison's thorough and well-reasoned
petitioner to succeed on an ineffective assistance of counsel
claim, he must show (i) “counsel's representation
fell below an objective standard of reasonableness, ”
Strickland v. Washington, 466 U.S. 668, 688 (1984),
and (ii) “a reasonable probability that, but for
counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at
694. A ...