Robinson v. Superintendent, Green haven Correctional Facility

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS. For the reasons set forth in the attached Memorandum and Order, petitioner's objections 14 are overruled and Magistrate Judge Bloom's well-reasoned and thorough Report and Recommendation 12 is adopted in its entirety as the opinion of the court. Accordingly, petitioner's petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, is denied. Because petitioner has not made a substantial showing of the denial of any const itutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253. The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this ruling would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 445 (1962). Respondent shall serve a copy of this Order on petitioner and note such service on the docket by January 18, 2012. Ordered by Judge Kiyo A. Matsumoto on 1/17/2012. (Winterkorn, Margaret)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
JAMES ROBINSON,
Petitioner,
-againstSuperintendent, Green Haven
Correctional Facility,

MEMORANDUM AND ORDER
ADOPTING REPORT AND
RECOMMENDATION
09-cv-1904(KAM)(LB)

Respondent.
-----------------------------------X
MATSUMOTO, United States District Judge:
On April 30, 2009, James Robinson (“petitioner”) filed
this pro se petition for a writ of habeas corpus, pursuant to 28
U.S.C. § 2254, challenging his conviction for rape in the first
degree, assault in the second degree, assault in the third
degree, and bail jumping in the third degree following a jury
trial in Supreme Court in Kings County, New York.

(See

Transcript of Trial at 445:7-446:3, People v. Robinson, No.
2502/02 (N.Y. Sup. Ct. July 9, 2004); ECF No. 1, Petition, filed
4/30/2009, at 1. 1)
On April 9, 2010, this court referred the Petition to
Magistrate Judge Lois Bloom for a Report and Recommendation.
(ECF No. 11, Order Referring Case, dated 4/9/2011.)

On January

4, 2011, Magistrate Judge Bloom issued a Report and
Recommendation recommending that the Petition be denied in its
1

References to page numbers in the Petition are to those page numbers
automatically assigned by the court’s electronic case filing system.

entirety.
1/4/2011.)

(See ECF No. 12, Report & Recommendation, dated
According to a notation entered on the docket sheet,

a copy of the Report and Recommendation was mailed to petitioner
on January 4, 2011.
1/4/2011.)

(See ECF No. 12, Docket Entry, dated

As explicitly noted at the end of the Report and

Recommendation, any objections to the Report and Recommendation
were to be filed within 14 days of receipt of the Report and
Recommendation.

(ECF No. 12, Report and Recommendation at 17.)

By letter dated January 10, 2011, petitioner requested
additional time to file his objections.

(See ECF No. 13, Letter

Motion for Extension of Time, filed 1/13/2011.)

The court

granted petitioner’s application, and directed him to file any
objections by February 21, 2011.

(Order Granting Motion for

Extension of Time to File, dated 1/19/2011.)

On February 23,

2011, the court received a copy of petitioner’s Response, dated
February 19, 2011, to the Report and Recommendation.

(See ECF

No. 14, Response to Report & Recommendation, filed 2/23/2011
(“Pet’r Response”).) 2

2

Petitioner is entitled to the benefit of the “prison mailbox rule,” which
deems the papers of a petitioner who is in custody to be filed as of the date
he gave the papers to prison authorities for mailing. See Noble v. Kelly,
246 F.3d 93, 97 (2d Cir. 2001) (citing Houston v. Lack, 487 U.S. 266 (1988)).
For the purposes of the instant Order, the court will assume that petitioner
gave prison authorities his submission on the date he wrote it, February 19,
2011.

2

DISCUSSION
I.

Legal Standard
To the extent that a party makes specific and timely

written objections to a magistrate judge’s findings and
recommendations, the district court must review de novo “those
portions of the report . . . to which objection is made.”

28

U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3); United
States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
“However, when a party makes only conclusory or general
objections, or simply reiterates his original arguments, the
Court reviews the Report and Recommendation only for clear
error.”

Walker v. Vaughan, 216 F. Supp. 2d 290, 292 (S.D.N.Y.

2002) (citation and internal quotation marks omitted); see also
Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008)
(“Reviewing courts should review a report and recommendation for
clear error 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.”)
(internal quotation marks omitted).
The objections of parties appearing pro se are
“generally accorded leniency” and should be construed “to raise
the strongest arguments that they suggest.”

Milano v. Astrue,

No. 05-CV-6527, 2008 U.S. Dist. LEXIS 74488, at *3-4 (S.D.N.Y.
Sept. 26, 2008) (citations and internal quotation marks
3

omitted); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474
(2d Cir. 2006).

“Nonetheless, even a pro se party’s objections

to a Report and Recommendation must be specific and clearly
aimed at particular findings in the magistrate’s proposal, such
that no party be allowed a second bite at the apple by simply
relitigating a prior argument.”

Pinkney v. Progressive Home

Health Servs., No. 06-CV-5023, 2008 U.S. Dist. LEXIS 55034, at
*2-3 (S.D.N.Y. July 21, 2008) (citation and internal quotations
marks omitted).

Upon review, “[t]he 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).

In reviewing a petition for habeas corpus relief, a
federal court may only consider whether a person is in custody
pursuant to a state court judgment in violation of the United
States Constitution or laws or treaties of the United States.
28 U.S.C. § 2254(a).

The Antiterrorism and Effective Death

Penalty Act of 1996 requires federal courts to apply a
deferential standard when conducting habeas corpus review of
state court decisions.
(2010).

Renico v. Lett, 130 S. Ct. 1855, 1862

A petitioner is entitled to habeas corpus relief if he

can show the state court decision “was contrary to, or involved
unreasonable application of, clearly established Federal law, as

4

determined by the Supreme Court of the United States.”

28

U.S.C. § 2254(d)(1).
II.

Application
The relevant factual and procedural background of this

case is set forth in Magistrate Judge Bloom’s thorough Report
and Recommendation.
at 1-4.)

(See ECF No. 12, Report and Recommendation

In his Response to the Report and Recommendation,

petitioner argues that his constitutional rights were violated
because:
(1)

His counsel provided ineffective assistance by
failing to object to the delay in petitioner’s
trial. (ECF No. 14, Pet’r Response at 7-8, 1112.)

(2)

His counsel provided ineffective assistance by
failing to file a reply objecting to the
prosecution’s belated justification for the 14day adjournment of trial. (Id.)

(3)

His counsel provided ineffective assistance by
failing to preserve petitioner’s federal
constitutional basis for objecting to the delay
in his trial. (Id.)

(4)

The trial court violated petitioner’s right to a
speedy trial by granting the 14-day adjournment
that the prosecution requested without
explanation. (Id. at 10-14.)

(5)

The prosecutor’s statements during summation
severely prejudiced petitioner and deprived him
of a fair trial because the prosecutor expressed
personal opinions about petitioner’s guilt and
credibility, vouched for the prosecution
witnesses’ credibility, and warned the jury not
to be tricked by defense counsel. (Id. at 1518.)

5

A review of petitioner’s purported objections shows
that they consist almost entirely of restatements of
petitioner’s original allegations rather than specific
objections to the Report and Recommendation.

Indeed, other than

the title of his submission, petitioner does not even refer to
Magistrate Judge Bloom’s Report and Recommendation, let alone
any portion of it.

(See generally id.)

Specifically,

petitioner’s arguments (1), (2), (4), and (5) merely reiterate
petitioner’s arguments in his original Petition.

(See ECF No.

1, Petition at 6 (alleging ineffective assistance of counsel for
failing to object to the delay in petitioner’s trial and for
failing to file reply papers objecting to the prosecution’s
belated justification for the delay); id. at 5, 18 (alleging
that the trial court deprived petitioner of his right to a
speedy trial by failing to charge the prosecution the 14-day
adjournment that was requested without explanation); id. at 18
(alleging that the prosecutor deprived petitioner of his right
to a fair trial by making improper statements during
summation).)

Having reviewed those portions of Magistrate Judge

Bloom’s thorough and well-reasoned Report and Recommendation,
the court finds no clear error.
Further, to the extent that petitioner’s third
argument objects to the Report and Recommendation on the ground
that his counsel’s ineffective assistance establishes cause for
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the procedural default of his constitutional speedy trial claim,
(see ECF No. 1, Petition at 7-8), this argument fails upon de
novo review.
As Magistrate Judge Bloom properly found, petitioner’s
claim that he was denied his constitutional right to a speedy
trial is procedurally barred from habeas review because he
failed to raise this constitutional claim for state court
review.

(ECF No. 12, Report and Recommendation at 7-8 (citing

Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997)).)

In his

state court appellate brief, petitioner relied solely on state
cases discussing the statutory speedy trial requirements under
New York Criminal Procedural Law (“N.Y.C.P.L.”) § 30.30 and only
presented facts regarding chargeable time against the
prosecution under state law.

(ECF No. 12, Report and

Recommendation at 8; Respondent’s Ex. B, Brief of DefendantAppellant, dated 5/2/2007 (“Def. App. Brief”), at 18-22.)
Petitioner did not cite any federal cases or state cases
employing constitutional speedy trial analysis.

(Id.)

Thus,

petitioner procedurally defaulted his constitutional speedy
trial claim.
“Where a defendant has procedurally defaulted a claim
by failing to raise it on direct review, the claim may be raised
in habeas only if the defendant can first demonstrate either
cause and actual prejudice, or that he is actually innocent.”
7

Bousley v. United States, 523 U.S. 614, 622 (1998) (citations
and internal quotation marks omitted).

Actual innocence is not

in issue here; therefore, petitioner must show that there was
cause for failing to raise the constitutional speedy trial claim
and prejudice resulting therefrom.
Petitioner appears to allege that his trial counsel’s
ineffective assistance caused the procedural default of his
constitutional speedy trial claim.

Specifically, he states that

his “attorney was ineffective by virtue of his . . . failure to
investigate or know the law and its standards when submitting
motions on behalf of [the] defendant, and preserve legal issues
to be raised as required.”
Recommendation at 7.)

(ECF No. 14, Response to Report and

Further, petitioner argues that his trial

counsel should have “implemented the federal violation and not
just state violations within the defendant[’]s motions to
dismiss . . . .”

(Id. at 8.)

Although ineffective assistance of counsel in
violation of the Sixth Amendment can establish cause for a
procedural default, the ineffective assistance claim must first
be exhausted in state court.

Murray v. Carrier, 477 U.S. 478,

488-89 (1986); Washington v. LeFevre, 637 F. Supp. 1175, 1177
n.4 (E.D.N.Y. 1986).

Here, petitioner did not present to any

state court the claim that his trial counsel was ineffective for

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failing to frame his speedy trial claim as a constitutional
issue.

(See Def. App. Brief at 18-24.)
Nevertheless, if a petitioner fails to exhaust a claim

on direct appeal and “it is clear that the unexhausted claim is
[now] procedurally barred by state law,” then “the habeas court
theoretically has the power to deem the claim exhausted.”
Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) (citing Reyes,
118 F.3d at 139).

Although New York provides a mechanism for

collaterally attacking a judgment that is in violation of a
constitutional right, see N.Y.C.P.L. § 440.10(1)(h), any attempt
by petitioner to bring such a motion would be futile.
N.Y.C.P.L. § 440.10(2)(c) requires a state court to deny a
440.10 motion “where the defendant unjustifiably failed to argue
[the] constitutional violation on direct appeal despite a
sufficient record.”

Reyes, 118 F.3d at 139; see People v.

Santillana, 547 N.Y.S.2d 981, 982 (Sup. Ct. 1989) (barring
claims pursuant to N.Y.C.P.L. § 440.10(2)(c) that were not
raised on direct appeal despite sufficient facts in record to
allow defendant to do so).

The purpose of this rule “is to

prevent [Section] 440.10 from being employed as a substitute for
direct appeal when [the] defendant was in a position to raise an
issue on appeal . . . or could readily have raised it on appeal
but failed to do so.”

People v. Cooks, 67 N.Y.2d 100, 103

(1986).
9

In cases where the trial record provides a sufficient
basis for an ineffective assistance of counsel claim, the Second
Circuit has found that N.Y.C.P.L. § 440.10(2)(c) would bar a
collateral attack when the defendant unjustifiably failed to
raise the ineffective assistance claim on direct appeal.

See

Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003) (finding that
ineffective assistance of counsel claim was “procedurally
defaulted for the purposes of federal habeas review”); Reyes,
118 F.3d at 139 (holding that petitioner “may not bring [the
ineffective assistance of counsel] claim in federal court, even
if it is brought to show cause for his default on his
[constitutional] claims”).
Here, the alleged error that is the basis for
petitioner’s ineffectiveness claim was well-established in the
trial record.

Petitioner has not offered any reason, and the

court sees none, suggesting that his appellate counsel would
have needed additional information to assert this ineffective
assistance of counsel claim.

Indeed, in petitioner’s appellate

brief challenging his conviction on state statutory speedy trial
grounds, he relied on evidence already in the record.
App. Brief at 18-24.) 3

(See Def.

Moreover, petitioner’s appellate counsel

3

Further, petitioner’s ineffective assistance claim appears to relate only to
his trial counsel, who moved to dismiss the indictment on speedy trial
grounds, and not to petitioner’s appellate counsel. Because petitioner was
represented by different counsel at trial and on appeal, (see ECF No. 1,
Petition at 12 (stating that Lawrence Rothstein, Esq. was trial counsel and

10

made a different ineffective assistance of counsel claim on
direct appeal – namely, that his trial counsel was ineffective
for failing to file reply papers objecting to the prosecution’s
belated excuse for its delay.

(See id. at 19.)

Thus, because

petitioner neglected to present to the state appellate court the
claim that his trial counsel provided ineffective assistance by
failing to raise a constitutional speedy trial argument, and
because this ineffective assistance claim would now be barred on
collateral review by section 440.10(2)(c), this claim, too, is
deemed both exhausted and procedurally barred.

Reyes, 118 F.3d

at 139 (“For exhaustion purposes, a federal habeas court need
not require that a federal claim be presented to a state court
if it is clear that the state court would hold the claim
procedurally barred.”) (citation and internal quotation marks
omitted); see also Coleman v. Thompson, 501 U.S. 722, 735 n.1
(1991) (holding that when a “petitioner failed to exhaust state
remedies and the court to which the petitioner would be required
to present his claims in order to meet the exhaustion
requirement would now find the claims procedurally barred,”

Joshua M. Levine, Esq. was appellate counsel)), his ineffective assistance
claim does not adequately explain his failure to raise the constitutional
speedy trial argument on appeal. Accordingly, petitioner has failed to make
the required showing of cause to excuse his procedural fault. See Bossett v.
Walker, 41 F.3d 825, 829 (2d Cir. 1994) (noting that where petitioner’s claim
of ineffective assistance was only against trial counsel, he failed to make
required showing of cause to excuse procedural default).

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federal habeas courts also must deem the claim procedurally
defaulted).
Because “a petitioner may not bring an ineffective
assistance claim as cause for a default when that ineffective
assistance claim itself is procedurally barred,” Reyes, 118 F.3d
at 140, petitioner’s ineffective assistance of counsel claim
cannot constitute cause for his failure to raise the
constitutional speedy trial claim in the state courts.
Therefore, as petitioner has procedurally defaulted on his
constitutional speedy trial claims and his argument of cause for
that default is precluded, his objection is overruled.

See

Holland v. Irvin, 45 F. App’x 17, 21 (2d Cir. 2002) (holding
that petitioner “cannot show cause for the procedural default”
of the constitutional claim where he “did not fairly present his
ineffective assistance of counsel claim to the state courts”).
CONCLUSION
For the reasons set forth above, petitioner’s
objections are overruled and Magistrate Judge Bloom’s wellreasoned and thorough Report and Recommendation is adopted in
its entirety as the opinion of the court.

Accordingly,

petitioner’s petition for a writ of habeas corpus, pursuant to
28 U.S.C. § 2254, is denied.

Because petitioner has not made a

substantial showing of the denial of any constitutional right, a
certificate of appealability will not issue.
12

See 28 U.S.C.

§ 2253.

The court certifies pursuant to 28 U.S.C. § 1915(a)(3)

that any appeal from this ruling would not be taken in good
faith.

See Coppedge v. United States, 369 U.S. 438, 445 (1962).

Respondent shall serve a copy of this Order on petitioner and
note such service on the docket by January 18, 2012.

SO ORDERED.
Dated:

January 17, 2012
Brooklyn, New York

/s/
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York

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