Ennis v. Artus
Filing
42
ORDER: Having conducted the appropriate levels of review of the Report and Recommendation of United States Magistrate Judge Gabriel W. Gorenstein dated August 12, 2011, this Court APPROVES, ADOPTS, and RATIFIES the Report's factual recitations and findings and recommendations in their entirety. Accordingly, Petitioner's Petition for a Writ of Habeas Corpus is DENIED. The Court certifies, pursuant to 28 U.S.C. § 1915(a) (3), that any appeal from this Order would not be taken in go od 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). Because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. §2253. (Signed by Judge Deborah A. Batts on 9/10/2012) (ago)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------x
AARON ENNI S ,
Petitioner,
-against-
09 Civ. 10157 (DAB)
ORDER
DALE ARTUS, Superintendent,
Clinton Correctional Facility,
Respondent.
------------------------------------x
DEBORAH A. BATTS, United States District Judge.
On August 12, 2011, United States Magistrate Judge Gabriel
W. Gorenstein issued a Report and Recorrunendation ("Report"),
recorrunending that Petitioner's Petition for a Writ of Habeas
Corpus be DENIED.
(Report at 1.) For the reasons set forth below,
after a de novo review following the objections of Petitioner,
the Report and Recorrunendation of Magistrate Judge Gorenstein
dated August 12, 2011 shall be adopted in its entirety.
Accordingly, the Court DENIES Petitioner's Petition for a Writ of
Habeas Corpus.
I.
Objections to the Report and Recorrunendation
"Within fourteen days after being served with a copy [of a
Magistrate Judge's Report and Recorrunendation], a party may serve
and file specific written objections to the proposed findings and
recorrunendations."
636(b) (1) (C).
Fed. R. Civ. P. 72(b) (2); accord 28 U.S.C. §
The court may adopt those portions of the report
to which no timely objection has been made, as long as there is
no clear error on the face of the record.
Wilds v. United Paroel
Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003).
A district
court must review de novo "those portions of the report or
specified proposed findings or recommendations to which objection
is made."
28 U.S.C.
§
636{b) (1) (C).
"To the extent, however,
that the party makes only conclusory or general arguments, or
simply reiterates the original arguments, the Court will review
the Report strictly for clear error."
Indymac Bank, F.S.B. v.
Nat'l Settlement Agency, Inc., No. 07-CV-6865, 2008 WL 4810043,
at *1 (S.D.N.Y. Nov. 3, 2008); see also Ortiz v. Barkley, 558
F.Supp.2d 444, 451 (S.D.N.Y. 2008)
("Reviewing courts should
review a report and recommendation for clear error where
objections are merely perfunctory responses, argued in an attempt
to engage the district court in a rehashing of the same arguments
set forth in the original petition.")
quotation marks omitted).
(citation and internal
After conducting the appropriate
levels of review, the Court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
Magistrate.
28 U.S.C.
§
636(b)(l)(C).
The objections of pro se parties are "generally accorded
leniency and should be construed to raise the strongest arguments
that they suggest."
Howell v. Port Chester Police Station, 2010
2
WL 930981, at *1 (S.D.N.Y. Mar. 15, 2010)
(citation omitted).
"Nonetheless, even 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."
Id.
(quoting Pinkney v. Progressive Home Health
Servs., No. 06-CV-5023, 2008 U.S. Dist. LEXIS 55034, at *2-3
(S.D.N.Y. July 21, 2008)
(internal quotations marks omitted».
Pro Se Petitioner filed timely objections to Magistrate
Judge Gorenstein's Report.
Petitioner specifically objects to
the report's findings and recommendations concerning the
exclusion of Petitioner's family members from the courtroom,
Report at 18-22; concerning Petitioner's argument that his trial
counsel was ineffective, Report at 23-29; and concerning Brady
violations related to the belated disclosure of a witness who
incriminated someone other than Petitioner in a shooting for
which Petitioner was convicted, Report at 29-33.
The Court takes
each of Petitioner's objections in turn, applying a de novo
review as appropriate to those portions of the Report to which
Petitioner has specifically objected.
II.
Exclusion of Family Members from the Courtroom
Petitioner objects to the Report's recommendation that he be
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denied habeas relief on the ground that certain of his family
members were excluded from the courtroom at trial.
Objs. at 2-10.)
(See PI.'s
However, Petitioner's objections on this point,
as he freely admits, merely reiterate the argument he made before
the Magistrate.
(See Pet.'s Obj. at 3, explaining that
"Petitioner properly argued the merits in his Memorandum of Law,
and in his Reply Brief.") Petitioner's Objections to the Report's
findings and recommendations concerning his claim that family
members were improperly excluded from the courtroom during his
trial therefore merely rehash arguments fairly presented to the
Magistrate and do not trigger de novo review.
The Court having
reviewed the relevant portions of the Report, the Court finds no
error in Judge Gorenstein's well-reasoned legal conclusions on
this point, which are founded on a clearly-established factual
and procedural history.
Accordingly, the Court adopts the
Report's findings and recommendations as they pertain to
Petitioner's claims concerning the exclusion of his family
members from the courtroom at trial.
III.
Ineffective Assistance of Counsel
The Report recommends that the Petition for a writ of habeas
corpus be DENIED to the extent it is founded on a claim of
ineffective trial counsel. Specifically, the Report found that
4
Petitioner's ineffective assistance claim is without merit to the
extent it is founded on trial counsel's failure to object to the
trial court's questioning of witnesses and is procedurally barred
to the extent it is founded on trial counsel's failure to object
to the exclusion of his family members from the courtroom.
Petitioner objects to the Report's recommendation that his
ineffective assistance of counsel claim be denied, in part, as
procedurally barred.
(Pet.'s Obj. at 10-20.)
Petitioner's
Objections again rehash the arguments he initially raised before
the Magistrate, as Petitioner freely acknowledges, and thus fail
to trigger de novo review. Nor can the Court identify any error
in the Report's well-reasoned recommendations on this point.
IV.
Withheld Exculpatory Evidence
The Appellate Division found that the prosecution wrongfully
failed to disclose a witness statement implicating another
individual in a shooting for which Petitioner was convicted, but
found that no prejudice had ensued and thus that no Brady
violation had occurred.
Petitioner argues that the Appellate
Division's conclusion was based on an unreasonable application of
clearly established Supreme Court precedent.
The Report
recommends that Petitioner's Brady claim be denied on the grounds
that the Appellate Division's application of the Brady standard
5
was not unreasonable.
Petitioner'a Objectiona to the Report'a recommendation
concerning his Brady claim again rehash the arguments previously
raised, and thus do not trigger de novo review.
The Court has
thus reviewed the Report's recommendation for clear error, and
has found none. Moreover, even if the Court were to conduct a de
novo review, it would find that the Appellate Division's
application of the Brady standard was not unreasonable, in that
it cannot be said that a reasonable probability exists that
disclosure of the witness statement would have resulted in a
different outcome at trial.
Not only would the witness, who
eventually retracted his statement, have been subjected to
devastating cross-examination and have been contradicted by
numerous other witnesses had he been called at trial, but
Petitioner's victim identified Petitioner as the individual who
shot him in the face.
In light of the overwhelming evidence
presented at trial, there is no reasonable probability that
disclosure of a statement made by a witness who later recanted
would have changed the outcome of the trial.
V.
Conclusion
Having conducted the appropriate levels of review of the
Report and Recommendation of United States Magistrate Judge
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Gabriel W. Gorenstein dated August 12, 2011, this Court APPROVES,
ADOPTS, and RATIFIES the Report's factual recitations and
findings and recommendations in their entirety.
Accordingly,
Petitioner's Petition for a Writ of Habeas Corpus is DENIED.
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}.
Because Petitioner has not made a substantial showing
of the denial of a constitutional right, a certificate of
appealability will not issue. 28 U.S.C. §2253.
SO ORDERED.
Dated:
New York, New York
September
/0,
2012
DEBORAH A. BATTS
united States District Judge
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