Brown v. Miller
DECISION AND ORDER: ORDERED, that the Report-Recommendation (Dkt. No. 37 ) is APPROVED and ADOPTED in its entirety. ORDERED, that Petitioner's Petition for a Writ of Habeas Corpus (Dkt. No. 1) is DENIED. ORDERED, that no certificate of ap pealability will be issued with respect to any of Petitioner's claims, because Petitioner has failed to make a "substantial showing of the denial of a constitutional right" under 28 U.S.C. § 2253(c)(2). ORDERED, that in forma pa uperis status is denied for the purpose of an appeal under 28 U.S.C. § 1915(a)(3) because any appeal from this Decision and Order would not be taken in good faith. Signed by Senior Judge Lawrence E. Kahn on 10/17/16. (served on petitioner by regular mail)(alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DECISION AND ORDER
This matter comes before the Court following a Report-Recommendation filed on June 1,
2016, by the Honorable Christian F. Hummel, U.S. Magistrate Judge, pursuant to 28 U.S.C.
§ 636(b) and Local Rule 72.3. Dkt. No. 37 (“Report-Recommendation”). Pro se Petitioner Robert
Brown timely filed Objections. Dkt. No. 41 (“Objections”).
Within fourteen days after a party has been served with a copy of a magistrate judge’s
report-recommendation, the party “may serve and file specific, written objections to the proposed
findings and recommendations.” Fed. R. Civ. P. 72(b); L.R. 72.1(c). If no objections are made, or
if an objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to
the magistrate judge, a district court need review that aspect of a report-recommendation only for
clear error. Barnes v. Prack, No. 11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18,
2013); Farid v. Bouey, 554 F. Supp. 2d 301, 306–07, 306 n.2 (N.D.N.Y. 2008); see also
Machicote v. Ercole, No. 06-CV-13320, 2011 WL 3809920, at *2 (S.D.N.Y. Aug. 25, 2011)
(“[E]ven 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.”). “A [district] judge . . . 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). Otherwise, a court “shall make a de novo determination of
those portions of the report or specified proposed findings or recommendations to which
objection is made.” Id.
Petitioner objects to the Report-Recommendation on the grounds that: (1) Petitioner
properly preserved his challenge to the sufficiency of the trial evidence; (2) the prosecution failed
to present sufficient evidence at trial to establish the elements of sexual abuse in the first degree,
the crime of which he was convicted; (3) Petitioner properly preserved his claim of ineffective
assistance of counsel regarding his counsel’s failure to file a timely notice of appeal; (4)
Petitioner’s habeas petition is not a mixed petition; (5) prosecutorial misconduct at trial deprived
Petitioner of the right to a fair trial; (6) the trial court’s evidentiary errors denied Petitioner a fair
trial; (7) Petitioner’s sentence is harsh and severe; (8) the indictment by which Petitioner was
charged lacked specificity; (9) the trial court lacked subject matter jurisdiction over Petitioner’s
case; and (10) the indictment contained duplicitous counts insofar as it charged him with sexual
abuse in the first degree and rape in the first degree. Objs.
At the outset, the Court notes that Petitioner’s second, fifth, sixth, seventh, eighth, ninth,
and tenth objections merely reiterate arguments made to the magistrate judge. Thus, the Court
will review the Report-Recommendation’s treatment of these objections for clear error. Barnes,
2013 WL 1121353, at *1.
Petitioner’s first objection is that his trial counsel properly preserved his challenge to the
legal sufficiency of the evidence by “specifically argu[ing] [at the close of trial] that no elements
of any crime were established.” Objs. at 5. This objection misses the point of Judge Hummel’s
discussion of this issue, which is that Petitioner’s claim about the insufficiency of the trial
evidence is procedurally barred under the “independent and adequate state ground” doctrine.
Rep.-Rec. at 15. That doctrine forbids federal district courts from reviewing the habeas claims of
state prisoners when those claims were rejected by state courts on state-law grounds that are
independent of federal law and adequate to support the judgment. Coleman v. Thompson, 501
U.S. 722, 729 (1991). New York’s preservation rule, which forbids direct appellate review of
issues not preserved at trial, has consistently been held to be an independent and adequate statelaw ground. Richardson v. Greene, 497 F.3d 212, 219 (2d Cir. 2007). To ask this Court to review
the reasoning behind the Appellate Division’s determination that Petitioner’s claim is
procedurally barred is to ask it to do what is expressly forbidden by the “independent and
adequate state ground” rule—namely, “offer state prisoners whose custody was supported by
independent and adequate state grounds an end run around the limits of this Court’s jurisdiction
and a means to undermine the State’s interest in enforcing its laws.” Coleman, 501 U.S. at
730–31. Further, Petitioner has failed to demonstrate cause for the default or prejudice that would
result from the Court’s refusal to review this claim, and there is no indication that a fundamental
miscarriage of justice would ensue from lack of federal habeas review. See id. at 750.
Petitioner’s second objection is that Judge Hummel erred in finding that the evidence at
trial was in fact sufficient to support the conviction. Objs. at 6–8. For the reasons just discussed,
this claim is procedurally defaulted, and in any event, the Court finds no clear error in Judge
Hummel’s discussion of the merits of the claim. Rep.-Rec. at 22–24.
Petitioner’s third objection, that he did not procedurally default on his claim of ineffective
assistance of counsel relating to his attorney’s filing a late notice of appeal, Objs. at 9, is without
merit. As Judge Hummel noted, Petitioner failed to raise this claim at the state court level, and
did not “argue cause and prejudice for his failure to raise [it earlier].” Rep.-Rec. at 20. That
renders the claim procedurally barred. Aparicio v. Artuz, 269 F.3d 78, 89–90 (2d. Cir. 2001). It is
irrelevant to this determination that, as Petitioner points out, he was granted leave to file a late
notice of appeal. Objs. at 9. This does not show that Petitioner properly raised his claim
regarding ineffective assistance of counsel at the state level, and nowhere in his Objections does
he suggest that he did so.
Petitioner’s fourth objection attacks the Report-Recommendation’s conclusion that his
Petition is “mixed,” which means that it contains both exhausted and unexhausted claims. Id.
Specifically, Petitioner argues that all of his claims should be considered exhausted. Id. This
argument is unavailing because several of Petitioner’s claims are clearly unexhausted. For
example, the Court just discussed Petitioner’s ineffective assistance claim regarding the late
notice of appeal. This claim was never raised at the state court level, Rep.-Rec. at 20, and
therefore Petitioner failed to exhaust his state court remedies in regard to it, see Reyes v. Keane,
118 F.3d 136, 139–40 (2d Cir. 1997). On the other hand, some of Petitioner’s claims, including
his objection to the admission of a hearsay statement at trial, are exhausted because he properly
raised them at the state court level. Rep.-Rec. at 21. Therefore, Judge Hummel was correct to
characterize Petitioner’s Petition as mixed.
Petitioner’s fifth and sixth objections, which challenge the Report-Recommendation’s
finding that the prosecutorial misconduct and evidentiary errors at issue did not render the trial
fundamentally unfair, Objs. at 10–11, are reviewed for clear error because they were raised in
Petitioner’s Petition. The Court finds no clear error in Judge Hummel’s thoughtful and wellreasoned discussion of these issues. Rep.-Rec. at 24–29, 31–35.
Petitioner’s seventh objection is that his sentence was based in part on “facts and
evidence that [he] was acquitted of.” Objs. at 11. In particular, Petitioner claims that the
sentencing court took into consideration the evidence underlying the rape and assault charges of
which he was acquitted. Id. As discussed above, Petitioner made this argument in his Petition.
Dkt. No. 1 (“Petition”) at 16. The Court notes that Judge Hummel failed to address this argument
in his Report-Recommendation, focusing instead on the disparity between the four-year sentence
in the plea deal rejected by Petitioner and the five-year sentence received by Petitioner after being
found guilty of sexual abuse in the first degree. Rep.-Rec. at 35–36. In any event, having
reviewed the relevant portions of the trial transcript, the Court sees no evidence that the trial
court explicitly relied on the rape and assault charges in determining its sentence. See Dkt. No.
14-5 (“Trial Transcript Part Three”) at 260–61. Moreover, even if the trial court had done so, it
was not foreclosed from considering the conduct underlying the rape and assault charges so long
as they were proven by a preponderance of the evidence. See United States v. Pica, 692 F.3d 79,
88 (2d Cir. 2012) (“A district court may treat acquitted conduct as relevant conduct at sentencing,
provided that it finds by a preponderance of the evidence that the defendant committed the
conduct.”). Petitioner fails to demonstrate that the trial court could not find these charges to be
proven by a preponderance of the evidence.1
Petitioner’s eighth objection is that Judge Hummel erred in rejecting the contention that
indictment lacked specificity. Objs. at 12. As noted above, the very same argument was raised in
Petitioner’s Petition, Pet. at 17, and the Court finds no clear error in Judge Hummel’s
conclusions that the claim is not cognizable on habeas review, that the claim is procedurally
defaulted, and that in any event the claim lacks merit, Rep.-Rec. at 38.
Petitioner’s ninth and tenth objections challenge the Report-Recommendation’s finding
that the trial court in fact had subject matter jurisdiction over the case and that the indictment was
not duplicitous. Objs. at 13–15. Since these same arguments were raised in the Petition, Pet. at
16–17, the Court reviews Judge Hummel’s disposition of them for clear error and can find none,
Rep.-Rec. at 36–39.2
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 37) is APPROVED and
ADOPTED in its entirety; and it is further
To the extent that Petitioner argues that the trial court ran afoul of Apprendi v. New
Jersey., 530 U.S. 466 (2000) in its sentencing decision, the Court notes that Apprendi does not
apply to situations such as the present case in which the sentence is within the statutory
maximum. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).
Petitioner appears to argue that his conviction for sexual abuse in the first degree
amounted to double jeopardy in violation of the Fifth Amendment. Objs. at 16. This argument is
frivolous given that Petitioner has been tried only once in connection with the incident that gave
rise to this case.
ORDERED, that Petitioner’s Petition for a Writ of Habeas Corpus (Dkt. No. 1) is
DENIED; and it is further
ORDERED, that no certificate of appealability will be issued with respect to any of
Petitioner’s claims, because Petitioner has failed to make a “substantial showing of the denial of
a constitutional right” under 28 U.S.C. § 2253(c)(2); and it is further
ORDERED, that in forma pauperis status is denied for the purpose of an appeal under 28
U.S.C. § 1915(a)(3) because any appeal from this Decision and Order would not be taken in good
faith; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
October 17, 2016
Albany, New York
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