Augustine v. Artus

Filing 22

ORDER: The Court hereby ORDERS that Magistrate Judge Dancks' May 17, 2017 Order and Report-Recommendation (Dkt. No. 21 ) is ADOPTED in its entirety for the reasons stated therein; and the Court further ORDERS that Petitioner's applicatio n for a writ of habeas corpus is DENIED and DISMISSED; and the Court further ORDERS that no Certificate of Appealability shall be issued with respect to any of Petitioner's claims; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in accordance with the Local Rules; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Respondent's favor and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 11/28/17. (served on petitioner by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
TRAVIS AUGUSTINE,
Petitioner,
vs.

9:14-CV-1230
(MAD/TWD)

DALE ARTUS, Superintendent,
Respondent.
____________________________________________
APPEARANCES:

OF COUNSEL:

TRAVIS AUGUSTINE
09-A-2824
Elmira Correctional Facility
P.O. Box 500
Elmira, New York 14902
Petitioner pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
120 Broadway
New York, New York 10271
Attorneys for Respondent

LISA E. FLEISCHMANN, AAG

Mae A. D'Agostino, U.S. District Judge:
ORDER
Petitioner filed this habeas corpus petition on August 27, 2014, challenging his 2009
convictions for murder in the second degree (N.Y. Penal Law ("PL") § 125.25), aggravated
cruelty to animals (N.Y. Ag. & Mkt. Law § 353(A)), and two counts of criminal possession of
stolen property (PL § 165.45(2) & (5)). See Dkt. No. 11-5 at 1, 114-15. In his petition, Petitioner
raised the following grounds for relief: (1) his indelible right to counsel was violated when he was
interrogated by State Police officers regarding the murder case without counsel present while he
was in the Greene County jail on a probation violation and had allegedly been assigned defense

counsel for the violation charge; (2) his statement to State Trooper Lischak on July 27, 2008, was
elicited in violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966); (3) his right to
counsel was violated by the trial court's refusal to conduct an inquiry in court into his complaints
about his assigned defense counsel and to assign new counsel; and (4) his conviction for
aggravated cruelty to animals was against the weight of the evidence. See Dkt. No. 1 at 8-13.
In a May 17, 2017 Order and Report-Recommendation, Magistrate Judge Dancks
recommended that the Court deny and dismiss the petition. See Dkt. No. 21. Neither party
objected to the recommendation.
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party files "[g]eneral or conclusory objections or objections which merely recite the same
arguments presented to the magistrate judge," the court reviews those recommendations for clear
error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011)
(citations and footnote omitted). After the appropriate review, "the 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).
A litigant's failure to file objections to a magistrate judge's report and recommendation,
even when that litigant is proceeding pro se, waives any challenge to the report on appeal. See
Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) (holding that, "[a]s a rule, a party's failure to
object to any purported error or omission in a magistrate judge's report waives further judicial
review of the point") (citation omitted). A pro se litigant must be given notice of this rule; notice
is sufficient if it informs the litigant that the failure to file a timely objection will result in the
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waiver of further judicial review and cites the pertinent statutory and civil rules authority. See
Frank v. Johnson, 968 F.2d 298, 299 (2d Cir. 1992); Small v. Sec'y of Health and Human Servs.,
892 F.2d 15, 16 (2d Cir. 1989) (holding that a pro se party's failure to object to a report and
recommendation does not waive his right to appellate review unless the report explicitly states
that failure to object will preclude appellate review and specifically cites 28 U.S.C. § 636(b)(1)
and Rules 72, 6(a), and former 6(e) of the Federal Rules of Civil Procedure).
Petitioner did not file any objections to Magistrate Judge Dancks' May 17, 2017 Order and
Report-Recommendation, thus waiving any challenge to it on appeal. Having reviewed
Magistrate Judge Dancks' Report-Recommendation and Order, the parties' submissions, and the
applicable law, the Court concludes that Magistrate Judge Dancks correctly recommended that
the Court dismiss the petition in its entirety. First, Magistrate Judge Dancks correctly determined
Petitioner's indelible right to counsel claim is not cognizable on federal habeas review because the
claim arises under the New York State Constitution, not federal law. See Claudio v. Scully, 982
F.2d 798, 803 (2d Cir. 1992); see also Williams v. Sheehan, No. 11-cv-2435, 2014 WL 3734332,
*11 n.7 (E.D.N.Y. July 28, 2014).
As to his claim that the trial court erred in failing to suppress his July 27, 2008 statement
to the State Police in violation of his Miranda rights, Magistrate Judge Dancks correctly
determined that any error in denying Petitioner's motion to suppress was harmless, as held by the
New York State Court of Appeals. See Dkt. No. 21 at 29-30. Any error in admitting this
statement and denying Petitioner's motion to suppress was not contrary to or an unreasonable
application of clearly established law given the other evidence supporting his guilty conviction,
including two counseled statements made to police and the testimony of numerous witnesses that
overwhelmingly established Petitioner's guilt. See Parsad v. Greiner, 337 F.3d 175, 185 (2d Cir.
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2003) (holding that any error in admitting pre-Miranda statement "was harmless, as petitioner's
post-Miranda statements, which we have held were properly admitted, were cumulative of his
pre-Miranda statements").
As to Petitioner's claim that he was denied his Sixth Amendment right to counsel, the
Order and Report-Recommendation properly found that the state court's decision was not contrary
to or an unreasonable application of federal law. See Dkt. No. 21 at 31-33. As Magistrate Judge
Dancks noted, Petitioner's request for a new attorney came on the eve of trial, contained only
generalized complaints about his representation, and his attorney's pre-trial performance had been
adequate. See id. It is well settled that criminal defendants do not have the right to counsel of
their choice. Given the delay that would have ensued and the fact that Petitioner's complaints
about his counsel were generalized, Petitioner's Sixth Amendment right to counsel was not
violated in this case. See United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006); United
States v. Brumer, 528 F.3d 157, 160-61 (2d Cir. 2008). Additionally, in order for Petitioner to
succeed on this claim, he would have to demonstrate not only that his counsel's performance was
deficient, but also that he was prejudiced by that deficient performance. See Mickens v. Taylor,
535 U.S. 162, 166 (2002). Petitioner, however, failed to link any of his general complaints about
the public defender with any specific deficiencies or negative consequences that he suffered. As
such, Magistrate Judge Dancks correctly determined that the petition should be denied as to this
claim.
In his final claim, Petitioner argues that his conviction for aggravated animal cruelty was
not supported by legally sufficient evidence. As Magistrate Judge Dancks correctly concluded,

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this claim is procedurally barred because Petitioner failed to raise this issue before the trial court.
See Guttierrez v. Smith, 702 F.3d 103, 111 (2d Cir. 2012).1
Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks' May 17, 2017 Order and ReportRecommendation is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Petitioner's application for a writ of habeas corpus is DENIED and
DISMISSED; and the Court further
ORDERS that no Certificate of Appealability shall be issued with respect to any of
Petitioner's claims; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in
accordance with the Local Rules; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Respondent's favor and close
this case.
IT IS SO ORDERED.
Dated: November 28, 2017
Albany, New York

Since Petitioner has failed to make a substantial showing of the denial of a constitutional
right with regard to any of his claims, the Court declines to issue a Certificate of Appealability in
this matter. See Hohn v. United States, 524 U.S. 236, 239-40 (1998) (quotation omitted).
Further, 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 the purpose
of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962); see also Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
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