Browne v. Heath

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATIONS AND DISMISSING PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 -- On August 25, 2014, the Hon. Cheryl L. Pollak, U.S.M.J., issued a Report and Recommendation ("R&R") recommendin g dismissal of the petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254, and petitioner timely objected. This Court referred those objections to the magistrate judge who filed a Supplemental R&R, again recommending dismissal o f the Petition and denying her recusal on February 25, 2015 and Petitioner timely objected thereto. Upon due consideration of the R&R, the Supplemental R&R and Petitioner's objections to both and for the reasons set forth in the ATTACHED WRITTE N ORDER, the R&R and Supplemental R&R are adopted in their entirety. Accordingly, this Petition is DISMISSED in its entirety. Petitioner 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. New York State Div. of Parole, 209 F. 3d 107, 112 (2d Cir. 2000). The court certifies p ursuant 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). The Clerk of the Court is directed to mail a copy of this Electronic Order and the Attached Written Order to pro se Petitioner and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 3/30/2015. (Irizarry, Dora)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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GAMEL BROWNE, pro se,
:
:
Petitioner,
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-against:
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PHILIP HEATH,
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Respondent.
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:
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DORA L. IRIZARRY, United States District Judge:

ORDER ADOPTING
REPORT AND
RECOMMENDATION
11-CV-1078 (DLI)(CLP)

Pro se petitioner Gamel Browne filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2254. The Court ordered the respondent to answer the petition and referred the
action to the Honorable Cheryl L. Pollak, United States Magistrate Judge, for the preparation of a
Report and Recommendation. On August, 25, 2014, Magistrate Judge Pollak issued her Report
and Recommendation (“R&R”).

(See R&R, Dkt. Entry No. 14.)

Petitioner filed timely

objections to the R&R, and the Court referred the petition back to the magistrate judge to address
Petitioner’s objections and request that Magistrate Judge Pollak recuse herself from the case.
(See generally Notice from Gamel Browne to Chief Judge Amon, Dkt. Entry No. 15; Order of
Sep. 26, 2015, Dkt. Entry No. 18.) On February 25, 2015, Magistrate Judge Pollak issued her
Supplemental Report and Recommendation (“Supplemental R&R”). (See Supplemental R&R,
Dkt. Entry No. 20.) Again, Petitioner filed objections. (See generally Objections to R&R and
Supplemental R&R, Dkt. Entry No. 21.)

For the reasons set forth below, the R&R and

Supplemental R&R are adopted in their entirety and the petition is denied.

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DISCUSSION
When no objections to an R&R are made, the court may adopt the R&R if “there is no
clear error on the face of the record.” Adee Motor Cars, LLC v. Amato, 388 F. Supp. 2d 250, 253
(S.D.N.Y. 2005) (citation omitted). “The clearly-erroneous standard also applies if a party
makes only conclusory or general objections, or simply reiterates his original arguments.”
United States v. Preston, 635 F. Supp. 2d 267, 269 (W.D.N.Y. 2009) (citation and internal
quotation marks omitted). When specific objections are made, a district judge must make a de
novo determination with respect to those parts of the R&R to which the party objects. The
district court may then “accept, reject, or modify the recommended decision, receive further
evidence, or recommit the matter to the magistrate judge with instructions.” FED. R. CIV. P.
72(b); 28 U.S.C. § 636(b); see also United States v. Raddatz, 447 U.S. 667, 673–76 (1980).
Pro se pleadings are held “to less stringent standards than formal pleadings drafted by
lawyers.” Hughes v. Rowe, 449 U.S. 5, 9 (1980) (citation omitted). Courts should “interpret
[such papers] to raise the strongest arguments that they suggest.” Forsyth v. Fed’n Emp’t &
Guidance Serv., 409 F. 3d 565, 569 (2d Cir. 2005) (citation and internal quotation marks
omitted). Though a court need not act as an advocate for pro se litigants, in such cases “there is
a greater burden and a correlative greater responsibility upon the district court to insure that
constitutional deprivations are redressed and that justice is done.” Davis v. Kelly, 160 F. 3d 917,
922 (2d Cir. 1998) (citation omitted).
The Court has reviewed the record, the relevant case law, the R&R, the Supplemental
R&R, and petitioner’s objections. Petitioner’s objections fall into three categories. First, many
of the objections consist of restatements of the arguments he raised in his petition. It is clear
from review of the magistrate judge’s thorough and well-reasoned R&R and Supplemental R&R,

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that in preparing the R&R and Supplemental R&R, the magistrate judge construed the petition as
raising the strongest claims suggested. The magistrate judge disposed of each of petitioner’s
claims appropriately, supporting her findings with abundant factual and legal support.
In the second category of objections, petitioner mistakenly relies on the Supreme Court’s
decisions in Martinez v. Ryan, 132 S. Ct. 1309 (2012), and Trevino v. Thaler, 133 S. Ct. 1911
(2013), which address ineffective assistance of counsel in state court collateral and habeas
proceedings.

However, as Petitioner filed no such state court challenges, the cases are

inapplicable. Again, the Court reviewed the relevant portions of the R&R and Supplemental
R&R, and the magistrate judge appropriately applied well settled legal principles in reaching her
recommendations.
Finally, Petitioner also argues his claims should be exempt from the exhaustion
requirements outlined in the Antiterrorism and Effective Death Penalty Act (“AEDPA”).
However, the magistrate judge addressed all of Petitioner’s underlying claims, even those not yet
exhausted, and appropriately found them deficient. Accordingly, the Court hereby adopts the
R&R and Supplemental R&R in their entirety.
CONCLUSION
For the reasons set forth above, the R&R and Supplemental R&R are adopted in their
entirety. Petitioner 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. New York 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

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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 30, 2015
/s/
DORA L. IRIZARRY
United States District Judge

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