Williams v. Moscicki

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATIONS -- On February 10, 2014, the Honorable Lois Bloom, United States Magistrate Judge, issued a Report and Recommendation ("R&R") recommending that this Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied. Petitioner timely objected. Upon due consideration and for the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, the thoughtful, thorough and well reasoned R&R issued by Magistrate Judge Bloom is adopted in its entirety and the Petition is denied. Petitioner also is denied a certificate of appealability, as he has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Luciadore v. N.Y. State Div. of Parole, 209 F. 3d 107, 112 (2d Cir. 2000). The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would no t be taken in good faith and, therefore, in forma pauperis status is denied for purpose of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Memorandum and Order to pro se Petitioner and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 3/27/2014. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MICHAEL WILLIAMS, pro se,
:
:
Petitioner,
:
:
-against:
:
RONALD W. MOSCICKI,
:
:
Respondent.
:
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DORA L. IRIZARRY, United States District Judge:

MEMORANDUM AND ORDER
ADOPTING REPORT AND
RECOMMENDATION
10-CV-5918 (DLI)(LB)

Pro se petitioner Michael Williams (“Petitioner”) filed this petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Petition, Dkt. Entry No. 1.) On February 10, 2014, the
Honorable Lois Bloom, United States Magistrate Judge, issued a Report and Recommendation
(“R&R”) recommending that the Petition be denied. (See R&R, Dkt. Entry No. 17.) On
February 27, 2014, Petitioner filed objections to the R&R. (See Objection, Dkt. Entry No. 18.)
For the reasons set forth below, the R&R is adopted in its entirety and the Petition is denied.
BACKGROUND 1
In 2003, Petitioner was convicted of robbery in the first degree, robbery in the second
degree, and grand larceny after a trial by jury in Kings County Supreme Court, New York. (Tr. 2
at 1304-05.) Petitioner was sentenced as a second violent felony offender to a determinate
sentence of eighteen years for robbery in the first degree, a determinate sentence of fifteen years
for robbery in the second degree, and an indeterminate sentence of five to fifteen years for grand
larceny in the second degree. (S. 3 at 16.)
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Familiarity with the R&R, as well as the procedural history and relevant facts of this case, is assumed. (See
generally R&R.) Since the R&R provides a thorough recitation of the relevant facts underlying the Petition, the
facts will not be repeated herein except as necessary.

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“Tr.” refers to the transcript of Petitioner’s jury trial which commenced on June 16, 2003.
“S.” refers to the transcript of Petitioner’s sentencing hearing on July 30, 2003.

Petitioner appealed his conviction and sentence to the Appellate Division, Second
Department, of the Supreme Court of the State of New York (“Appellate Division”) contending
he was deprived of a fair trial and his rights violated when the state court: (1) denied his motion
to sever his trial from that of his codefendants; (2) refused to give a missing witness charge; (3)
permitted the prosecutor to comment on his post-arrest silence; (4) unfairly marshaled the
evidence against him in the jury charge; (5) improperly sentenced him as a second violent felony
offender; and (6) imposed an unconstitutionally excessive sentence. (Defendant’s June 2006
Brief to the Appellate Division, Dkt. Entry No. 15-12 at 22-67.) On February 19, 2008, the
Appellate Division affirmed Petitioner’s conviction, but remitted the matter for a hearing on the
issue of whether Petitioner was properly sentenced as a second violent felony offender and for
resentencing thereafter. People v. Williams, 48 A.D.3d 715 (2d Dep’t 2008). On June 5, 2008,
the New York State Court of Appeals (“Court of Appeals”) denied Petitioner leave to appeal the
Appellate Division’s decision. People v. Williams, 10 N.Y.3d 940 (2008).
At the resentencing hearing, the prosecution withdrew its predicate felony statement.
(ReS. 4 At 2-3.) The trial judge resentenced Petitioner to a determinate sentence of sixteen years
for robbery in the first degree, a determinate sentence of fifteen years for robbery in the second
degree, and an indeterminate sentence of five to fifteen years for grand larceny in the second
degree. (ReS. at 11.) Petitioner again appealed, arguing that his new sentence was excessive.
(Defendant’s September 2009 Brief to the Appellate Division, Dkt. Entry No. 15-12 at 129-56.)
The Appellate Division denied Petitioner’s appeal, People v. Williams, 69 A.D.3d 887 (2d Dep’t
2010), and the Court of Appeals denied Petitioner leave to appeal. People v. Williams, 14
N.Y.3d 846 (2010).

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“ReS.” refers to the transcript from Petitioner’s resentencing hearing on April 25, 2008.

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Petitioner timely filed the instant pro se Petition seeking a writ of habeas corpus pursuant
to 28 U.S.C. § 2254(a), setting forth the same claims raised on his first direct appeal. (Petition.)
DISCUSSION
When a party objects to an R&R, a district judge must make a de novo determination
with respect to those portions of the R&R to which the party objects. See FED. R. CIV. P. 72(b);
United States v. Male Juvenile, 121 F. 3d 34, 38 (2d Cir. 1997). Portions of the R&R to which
the parties have not objected are reviewed for clear error. See Orellana v. World Courier, Inc.,
2010 WL 3861013, *2 (E.D.N.Y. Sept. 28, 2010). The clearly erroneous standard also applies if
a party makes conclusory or general objections, or attempts to relitigate the party’s original
arguments. Robinson v. Superintendent, Green Haven Correctional Facility, 2012 WL 123263,
at *1 (E.D.N.Y. Jan. 17, 2012) (quoting Walker v. Vaughan, 216 F. Supp. 2d 290, 292 (S.D.N.Y.
2002)). The district court 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); see also 28 U.S.C. § 636(b)(1).
In reviewing Petitioner’s submissions, the Court is mindful that “a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation omitted). The Court
construes pro se pleadings “to raise the strongest arguments that they suggest.” Triestman v.
Fed. Bureau of Prisons, 470 F. 3d 471, 474 (2d Cir. 2006) (emphasis and quotation omitted).
As set forth in the R&R, the magistrate judge recommended that: (1) Petitioner’s claim
regarding his motion to sever be denied, because the state court’s decision was not contrary to or
an unreasonable application of federal law; (2) Petitioner’s claim regarding the missing witness
charge be denied for the same reason; (3) Petitioner’s claim regarding the prosecutor’s comments

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on summation be denied as both procedurally barred and meritless; (4) Petitioner’s claim
regarding the court’s alleged marshalling of evidence during the jury charge be denied as
meritless; (5) Petitioner’s claim that he was improperly sentenced as a second violent felony
offender be denied as moot; and (6) Petitioner’s excessive sentence claim be denied, because it
affords no basis for habeas corpus relief.
Petitioner objected to the R&R, arguing that the state court’s decisions regarding the
motion to sever, the motion for a missing witness charge, the prosecutor’s statements at
summation, and the court’s alleged marshalling of the evidence were in error and deprived
Petitioner of a fair trial. Petitioner does not object to the magistrate judge’s findings regarding
his sentence or her finding that his claims regarding the prosecutor’s statements at summation are
procedurally barred.
The Court has reviewed the record, the relevant case law, the R&R, and Petitioner’s
objections to the R&R. Several of the objections consist of restatements of the arguments raised
in the Petition.

While restatements of argument previously addressed in a report and

recommendation need only be reviewed for clear error, Zaretsky v. Maxi-Aids, Inc., 2012 WL
2345181, at *1 (E.D.N.Y. June 18, 2012), Magistrate Judge Bloom’s R&R withstands the more
stringent de novo review and is adopted in its entirety. It is clear from this court’s review of the
exceptionally thorough and well-reasoned R&R that the magistrate judge carefully and
thoughtfully disposed of each of Petitioner’s claims appropriately, supporting the findings with
abundant factual and legal support. Moreover, Petitioner has failed to persuade this court that
any of the state court’s findings were contrary to or an unreasonable application of federal law.
Accordingly, the R&R is adopted in its entirety and the Petition is denied.

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CONCLUSION
For the reasons discussed above, the thorough and well reasoned Report and
Recommendation issued on February 10, 2014 by the Honorable Lois Bloom, U.S. Magistrate
Judge, is hereby adopted in its entirety. Accordingly, the Petition for habeas corpus relief
pursuant to 28 U.S.C. §2254 is denied. Petitioner also is denied a certificate of appealability, as
he has failed to make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2); see Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003);
Luciadore v. N.Y. State Div. of Parole, 209 F. 3d 107, 112 (2d Cir. 2000). The Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good
faith and, therefore, in forma pauperis status is denied for purpose of an appeal. Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).

SO ORDERED.
Dated: Brooklyn, New York
March 27, 2014
/s/
DORA L. IRIZARRY
United States District Judge

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