Rodriquez v. Smith

Filing 15

MEMORANDUM-DECISION AND ORDER: ORDERED that the Report-Recommendation (Dkt. No. 11 ) is ADOPTED in its entirety for the reasons stated therein. ORDERED that the petition (Dkt. No. 1) is DENIED and DISMISSED in its entirety. ORDERED that no certificate of appealability shall issue with respect to the claims set forth in the petition. ORDERED that the Clerk shall close this case. Signed by Judge Brenda K. Sannes on 10/13/15. {order served via regular mail on petitioner}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
CARLOS RODRIGUEZ,
Petitioner,
v.

9:14-CV-1274 (BKS/ATB)

JOSEPH T. SMITH, Superintendent,
Respondent.
___________________________________________
APPEARANCES:
Carlos Rodriquez, Petitioner Pro Se
88-B-0742
Shawangunk Correctional Facility
P.O. Box 700
Wallkill, NY 12589
For Respondent:
Hon. Eric T. Schneiderman
New York State Attorney General
Priscilla I. Steward, Esq., Assistant Attorney General
120 Broadway
New York, NY 10271
Hon. Brenda K. Sannes, United States District Court Judge
MEMORANDUM-DECISION AND ORDER
INTRODUCTION
Petitioner Carlos Rodriquez, a New York State inmate, commenced this proceeding
pursuant to 28 U.S.C. § 2254, arguing that the New York State Department of Corrections and
Community Supervision improperly calculated his sentences to run consecutively for a 1988
judgment of conviction in New York County Supreme Court and a 1999 judgment of conviction
in Westchester County Court. (Dkt. No. 1). Respondent filed an opposition to the petition on

January 20, 2015 (Dkt. No. 6), and Petitioner submitted a Traverse response on February 11,
2015. (Dkt. No. 10). This matter was referred to United States Magistrate Judge Andrew T.
Baxter, who, on August 18, 2015, issued a Report-Recommendation, recommending that the
petition be denied and dismissed. (Dkt. No. 11). Magistrate Judge Baxter’s recommendation is
based on his conclusions that: 1) the petition is time-barred by the statute of limitations; and 2)
Petitioner’s claims concern an interpretation of state law and are not cognizable on federal
habeas review. (Id., pp. 11-12).
DISCUSSION
Petitioner filed objections to the Report-Recommendation on September 11, 2015. (Dkt.
No. 14). Petitioner objects to both conclusions reached by Magistrate Judge Baxter. (Id.). This
Court reviews de novo those parts of a report and recommendation to which a party specifically
objects. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3). Under de novo review, the Court
must “examine the entire record, and make an independent assessment of the magistrate judge’s
factual and legal conclusions.” Almonte v. N.Y. State Div. of Parole, No. 04 Civ. 484, 2006 WL
149049, at *5, 2006 U.S. Dist. LEXIS 2926, at *15 (N.D.N.Y Jan. 18, 2006) (citing United
States v. Raddatz, 447 U.S. 667, 675 (1980)).
Upon de novo review, the Court accepts and adopts the Report-Recommendation in its
entirety. Magistrate Judge Baxter accurately recounted the facts and procedural history of this
case and employed the proper legal standards in analyzing Petitioner’s claims. The record shows
that Petitioner did not file his federal habeas petition prior to the expiration of the one-year
statute of limitations for prisoners to seek federal review of their state court criminal convictions
under 28 U.S.C. § 2244(d)(1). Moreover, Petitioner has failed to show sufficient grounds for
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tolling the statute of limitations. Further, as Magistrate Judge Baxter noted, Petitioner has failed
to allege any basis for federal habeas relief since there is no “constitutionally cognizable right to
concurrent, rather than consecutive, sentences.” United States v. McLean, 287 F.3d 127, 136 (2d
Cir. 2002) (quoting United States v. White, 240 F.3d 127, 135 (2d Cir. 2001)). “Thus, federal
habeas courts have squarely held that claims regarding the imposition of consecutive sentences
are purely a matter of state law and are not cognizable on habeas review.” Charles v. Fischer,
516 F. Supp. 2d 210, 224 (E.D.N.Y. 2007) (citing cases) (internal quotation omitted). Therefore,
even if Petitioner’s claims were not time-barred, dismissal would still be warranted.
CONCLUSION
It is therefore
ORDERED that the Report-Recommendation (Dkt. No. 11) is ADOPTED in its entirety
for the reasons stated therein; and it is further
ORDERED that the petition (Dkt. No. 1) is DENIED and DISMISSED in its entirety;
and it is further
ORDERED that no certificate of appealability shall issue with respect to the claims set
forth in the petition; and it is further
ORDERED that the Clerk shall close this case; and it is further
ORDERED that the Clerk of the Court shall serve a copy of this Order on Petitioner in
accordance with the local rules.
IT IS SO ORDERED.
October 13, 2015
Syracuse, New York

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