United States District Court, S.D. New York
MEMORANDUM & ORDER ADOPTING REPORT &
LORETTA A. PRESKA, SENIOR UNITED STATES DISTRICT JUDGE.
Elvis Martin ("Petitioner" or "Martin"),
proceeding pro se, seeks a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. (Petition
("Pet."), ECF No. 1.) On November 1, 2006, a New
York State Supreme Court jury convicted Martin of murder in
the second degree. (Id. at 1-2.) The court sentenced
Martin to twenty-five years to life in prison. (Id.)
After filing a direct appeal, Martin sought a writ of habeas
corpus on July 15, 2010. (See id.) On January 5,
2017, Respondent filed an Opposition. (Respondent Opposition
("Resp't Opp'n"), ECF No. 17.) On February
3, 2017, the Court referred this matter to United States
Magistrate Judge James C. Francis. (Order of Reference, ECF
No. 21.) On May 16, 2017, Petitioner filed a timely Reply.
(Reply, ECF No. 27.) On June 2, 2017, Respondent filed a
Supplemental Opposition. (Respondent Supplemental Opposition
("Resp't Suppl. Opp'n"), ECF No. 28.)
20, 2017, Judge Francis issued a Report and Recommendation
("Report") recommending that this Court deny
Martin's Petition. (See Report and
Recommendation ("R. & R."), ECF No. 29.) On
September 11, 2017, Martin filed a timely Objection to the
Report. (Objection ("Obj."), ECF No. 35.) For the
following reasons the Court adopts the Report in full.
conviction arose out of the murder of Miguel Littlejohn by a
group of gunmen outside of LittleJohn's Bronx apartment
on March 18, 2003. (R. & R. at 2-3.) The Court assumes
familiarity with the remaining facts and relevant procedural
history of the case as set forth in the Report. (Id.
at 2-8.) Martin's habeas petition articulates
two claims: (1) the trial court improperly admitted
statements of non-testifying co-defendants
("statements") in violation of his Sixth Amendment
right to confrontation under Crawford v. Washington,
54 U.S. 36 (2004); and (2) the admission of these statements
violated his Sixth Amendment right to confrontation under
Bruton v. United States, 391 U.S. 123 (1968). (Pet.
issue is the admission of statements at trial that
co-defendants Jackson and Reid made to the police. (R. &
R. at 6; see Tr. at 632, 641.) At this stage of the
proceedings, the parties do not dispute that an error
occurred but only the Appellate Division's finding of
harmlessness. (R. & R. at 11.) After a de novo
review of the claims on the merits, Judge Francis likewise
found the error harmless and denied all of the claims in
Martin's habeas petition. (Id. at 34.)
STANDARD OF REVIEW
reviewing a Report and Recommendation, a district 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). When timely objections
have been made to the report, "[t]he district judge must
determine de novo any part of the magistrate
judge's disposition that has been properly objected
to." Fed.R.Civ.P. 72(b)(3); United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). However, when
a petitioner objects by simply reiterating previous arguments
or making only conclusory statements, the court should review
such objections for clear error. See Genao v. United
States, No. 08 CIV. 9313, 2011 WL 924202, at *1
(S.D.N.Y. Mar. 16, 2011); see also Edwards v.
Fischer, 414 F.Supp.2d 342, 346-47 (S.D.N.Y. Feb. 7,
2006) ("where objections 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, reviewing courts should review a report
and recommendation for clear error."). Further, because
"new claims may not be raised properly at this late
juncture," such claims "presented in the form of,
or along with, 'objections,' should be
dismissed." Pierce v. Mance, No. 08 Civ. 4736,
2009 WL 1754904, at *1 (S.D.N.Y. June 22, 2009).
se objections to a report are "generally accorded
leniency," and a court should construe them to
"raise the strongest arguments that they suggest."
Milano v. Astrue, No. 05 Civ. 6527 (KMW)(DCF), 2008
WL 4410131, at *2 (S.D.N.Y. Sept. 26, 2008) (citations and
internal quotation marks omitted), aff'd, 382 Fed.Appx. 4
(2d Cir. 2010). Nonetheless, "even a pro se
party's objections to a Report and Recommendation 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 v.
Progressive Home Health Servis., No. 06 Civ.
5023, 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008) (citing
Camardo v. Gen Motors Hourly- Rate
Employees Pension Plan, 806 F.Supp. 380, 381-82
(W.D.N.Y. 1992)) .
instant case, Martin objects generally to the Report's
conclusions and application of the four-factor Zappulla
standard. (Obj. at 8-11; R. & R. at 12.) This Court may
only reverse the state appellate court's harmless error
determination on the ground that it was objectively
unreasonable. Zappulla v. New York, 391 F.3d 462,
467 (2d Cir. 2004). By "distilling . . . Supreme Court
precedents," the Court of Appeals in Zappulla
found the following factors to be relevant in determining
whether the erroneous admission of a statement was harmless
error: (1) the overall strength of the prosecution's
case; (2) the prosecution's conduct with respect to the
improperly admitted evidence; (3) the importance of the
wrongly admitted testimony; and (4) whether such evidence was
cumulative of other properly admitted evidence. Id.
at 468. The strength of the prosecution's case is
"the most important factor in our inquiry."
Perkins v. Herbert, 596 F.3d 161, 179 (2d Cir.
Objections only merit review for clear error because they
merely restate claims raised in earlier petitions, are
conclusory, or are new claims that may not be raised at this
point. The Court has reviewed the Report's findings
concerning all of Martin's claims and adopts the Report
in its entirety.
The Strength of the Prosecution's Case
liberally, Martin objects to the Report's findings that
the strength of the prosecution's case favors Respondent
on two grounds: (i) the jury's review of the statements
during deliberations reveals the role of the statements to
the strength of the prosecution's case; and (ii) the