United States District Court, S.D. New York
ORDER ADOPTING REPORT AND RECOMMENDATION
KEVIN CASTEL UNITED STATES DISTRICT JUDGE
2009, a jury in the New York Supreme Court, New York County,
found petitioner Jason Pagan guilty of attempted murder,
assault, and criminal possession of a weapon in connection
with the 2008 shooting of a karaoke bar bouncer. The
Appellate Division, First Department, affirmed the judgment.
People v. Pagan, 88 A.D.3d 37 (1st Dep't 2011).
The New York Court of Appeals denied leave to appeal.
People v. Pagan, 17 N.Y.3d 954 (2011). Pagan pursued
various forms of collateral relief. In July 2013, Pagan,
proceeding pro se, filed a petition for a writ of
habeas corpus, pursuant to 28 U.S.C. § 2254, which he
subsequently amended (the “Petition”). (Dkts. 2,
54). Magistrate Judge Sarah Netburn, to whom the Court
referred the Petition, issued a Report and Recommendation
(the “R&R”) recommending that the Court
dismiss the Petition in its entirety. (Dkts. 7, 67).
Court adopted the R&R after no party timely filed an
objection, but vacated that Order after Pagan advised the
Court that he had not received a copy of the R&R. (Dkts.
68, 70-72). The Court now reviews the R&R with the
benefit of Pagan's objections. (Dkt. 74). For the reasons
to be explained, the Court adopts the conclusion of the
reviewing an R&R, 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)(1). The Court conducts a de novo review
of the R&R to the extent Pagan raises an objection.
Id. In order to establish his entitlement to federal
habeas relief for a claim adjudicated on the merits in state
court, Pagan must show that (i) the state court's actions
were “contrary to, or involved an unreasonable
application of, ” clearly established federal law as
determined by the United States Supreme Court, or (ii)
“resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the state court proceeding.” 28
U.S.C. § 2254(d); see Williams v. Taylor, 529
U.S. 362, 402-13 (2000).
Petition, Pagan argued that: (1) the evidence establishing
him as Salome's shooter was insufficient; (2) the
admission of evidence regarding his gang affiliation violated
due process; (3) trial counsel was ineffective for failing to
present testimony at the Sirois hearing; (4)
appellate counsel was ineffective for failing to argue trial
counsel's ineffectiveness for failing to call an
eyewitness testimony expert and a medical expert; and (5)
appellate counsel was ineffective for failing to argue trial
counsel's ineffectiveness for failing to contest the
admissibility of Pagan's statements to the police. After
summarizing the case's procedural history and reviewing
the applicable law, Magistrate Judge Netburn concluded in the
R&R that all but one of Pagan's claims failed for
procedural reasons and, further, that all of his claims
failed on the merits.
noted, the Court reviewed the R&R de novo, and the record
on which it is based, to the extent that Pagan has raised an
objection. See 28 U.S.C. § 636(b)(1); Rule
72(b), Fed.R.Civ.P. The Court need not address in this Order
all that it considered, but it has considered the entirety of
Sufficiency of the Evidence.
R&R concluded that Pagan's challenge to the
sufficiency of the evidence was procedurally barred,
unexhausted, and lacked merit. (R&R at 13-18). Regarding
the procedural bar, the state court ruling on Pagan's CPL
§ 440.10 motion concluded that Pagan's failure to
raise a legal sufficiency argument on direct appeal acted as
a mandatory bar to review. (Id. at 13-14). On that
basis, the R&R concluded that the state court relied on
an independent and adequate state procedural rule in denying
the claim, and there was no sufficient showing or
circumstance to excuse the bar. (Id.). In his
objections, Pagan argued that he did in fact challenge the
sufficiency of the evidence on direct appeal. (Objections at
direct appeal, Pagan argued that the verdict contradicted the
weight of the evidence and the conviction violated due
process. (State Court Record (“SCR”) (Dkt. 18-2)
at SR-43-SR-66). The First Department concluded that the
verdict was not against the weight of the evidence and its
decision did not specifically address a legal sufficiency
claim. (Id. at SR-154). Although Pagan cited to
Jackson v. Virginia, 443 U.S. 307 (1979), in a brief
on direct appeal, his claim and arguments on direct appeal
related to the weight, not the legal sufficiency, of the
evidence. (Id. at SR-43-SR-66). The Court thus
adopts the R&R as to this claim.
Due Process Violation.
R&R concluded that Pagan's due process challenge to
the admission of evidence relating to his gang affiliation
was exhausted, but procedurally barred and meritless.
(R&R at 20-23). Regarding the procedural bar, the R&R
concluded that the bar applied because Pagan failed to
preserve the claim for appellate review and there was no
sufficient showing or circumstance to excuse the bar.
(Id. at 20-21). Pagan objected to the R&R by
arguing that his “appellate counsel contested the
erroneous admission” of the gang affiliation evidence
as a “due process error, ” and that such error is
not harmless. (Objections at 25). He further objected to the
prosecutor's reliance on this evidence to attack Pagan at
trial and use it for propensity purposes. (Id.) None
of Pagan's objections disturb the R&R's
well-reasoned determination that Pagan's trial counsel
failed to preserve the claim and that, even if preserved, the
claim fails on the merits. The Court thus adopts the R&R
as to this claim.
Ineffective Assistance of Trial Counsel.
R&R concluded that Pagan's ineffective assistance of
trial counsel claim regarding the failure to present the
testimony of Pagan's mother, Luz Igartua, at the
Sirois hearing was exhausted, but procedurally
barred and meritless. (R&R at 23-27). Pagan objected to the
R&R's determination that the claim should have been
raised on direct appeal and not first asserted in a CPL
§ 440.10 motion. (Objections at 25). He argued that
raising the claim on direct appeal was unnecessary
“because it was supported by a sworn affidavit by LUZ
IGARTUA that contained exculpatory facts that did not appear
on record.” (Id. (emphasis in original)). The
Court concludes that the showing on the record does not
amount to the ...