Jackson v. Heath

Filing 13

MEMORANDUM AND ORDER for 9 Report and Recommendations: For the foregoing reasons, the Court adopts the Report in its entirety and denies the Petition. A certificate of appealability will not issue because Petitioner has not made a substantial showi ng of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); see also Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005). The Clerk of the Court is respectfully directed to enter judgment in favor of Respondent and to close this case. (Signed by Judge Richard J. Sullivan on 8/27/2013) Copies Mailed By Chambers. (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_____________________
No. 10 Civ. 3449 (RJS)
_____________________

In re the Petition Under 28 U.S.C. Section 2254 for
MICHAEL JOHNSON,
Petitioner.
___________________
MEMORANDUM AND ORDER
August 27, 2013
___________________
RICHARD J. SULLIVAN, District Judge:
Michael Johnson (“Petitioner” or
“Johnson”) brings this petition for a writ of
habeas corpus (“Petition”) pursuant to 28
U.S.C. § 2254, challenging his conviction in
New York State Supreme Court, Bronx
County, on counts of first degree assault,
fourth degree criminal possession of a
weapon,
second
degree
aggravated
harassment, third degree attempted assault,
and third degree menacing, for which he was
sentenced to a term of imprisonment of
twelve and one-half years. Before the Court
is the Report and Recommendation (the
“Report”) of the Honorable Andrew J. Peck,
Magistrate Judge, recommending that the
Petition be denied, as well as Petitioner’s
objections to the Report. For the following
reasons, the Court adopts the Report in its
entirety and denies the Petition.

I. BACKGROUND
A. Facts 1
On January 23, 2007, Tenaja Cochrane
(“Cochrane” or “Complainant”) was stabbed
repeatedly in the arm and neck in the Bronx.
(Opp’n at 3-6.) Cochrane was treated for
her life-threatening injuries at Bronx
Lebanon Hospital, where she told doctors
and police that she had been stabbed by
1

The facts are taken from the Petition, Petitioner’s
brief in support of his State Court appeal (“Johnson
App. Br.”), the brief in opposition to Petitioner’s
State Court appeal (“Opp’n”), and the affidavits,
declarations, and exhibits attached thereto. In ruling
on this Petition, the Court also considered the
transcripts from the state criminal trial (“Tr.”), the
transcript from the pre-trial Molineux hearing (“H.”),
and the transcript from the state sentencing hearing
(“Sent.”), as well as the Report and the Petitioner’s
Objections to the Report (“Objections” or “Obj.”).

because the risk of “unfair prejudice
outweigh[ed] the probative value” of
Cochrane’s testimony. (H. 8.) Accordingly,
following Cochrane’s testimony on the
subject, Justice Dawson struck the
“gratuitous remark[s]” from the record and
gave curative instructions to the jury to
disregard Cochrane’s statements regarding
the prior assault. (Tr. at 32, 92, 181.)

Petitioner. (Johnson App. Br. at 21-22; see
Tr. at 61, 67.) On February 20, 2007, a
Bronx grand jury charged Petitioner with
attempted murder in the second degree,
assault in the first degree, two counts of
assault in the second degree, criminal
possession of a weapon in the fourth degree,
four counts of aggravated harassment in the
second degree, attempted assault in the third
degree, petit larceny, and menacing in the
third degree. (Opp’n at 3.) Petitioner’s trial
commenced on February 26, 2008, before
the Honorable Joseph J. Dawson, Supreme
Court Justice, and a jury. (Tr. at 1.)

Also, during her testimony, Cochrane
stated that Petitioner purchased illegal drugs
on the night of the stabbing, which Justice
Dawson deemed to be testimony concerning
an “uncharged crime.” (Tr. at 40, 44.)
Outside the presence of the jury, Justice
Dawson denied the “extreme and drastic
remedy” of a mistrial, but offered to give the
jury a curative instruction that Petitioner was
not being charged with possessing any
illegal drugs and that any of Cochrane’s
claims to that effect should be disregarded.
(Tr. at 48-49.) However, defense counsel
declined the curative instruction, fearing that
it would “magnify” the statements for the
jury. (Id.)

At trial, the Prosecution presented the
testimony of Cochrane (Tr. at 24-40, 54-93,
111-53), the owner of the crack house where
the assault took place, who also witnessed
the assault (Tr. at 212-25); the emergency
room physician who treated Cochrane after
the assault (Tr. at 226-63); and the social
worker who spoke to Cochrane at the
hospital (Tr. at 188-205). Cochrane testified
that on the night of the stabbing, Petitioner
had threatened to kill her. (Tr. at 35-36.)
Thereafter, Petitioner threw Cochrane to the
floor, took “something shiny” from “out of
[his] waist” (Tr. at 58, 216, 220-21), and
began stabbing Cochrane, first in the arm
and then in the neck, as she fought back (Tr.
at 58-59, 79).

Petitioner presented no evidence at trial.
(Tr. at 288.)
On February 29, 2008, the jury returned a
guilty verdict against Petitioner on counts
two, four, five, six, and eight for assault in
the first degree, criminal possession of a
weapon in the fourth degree, aggravated
harassment in the second degree, attempted
assault in the third degree, and menacing in
the third degree, respectively. (Tr. at 418.)
On March 26, 2008, Judge Dawson
sentenced Petitioner to a term of
imprisonment of twelve and one-half years
on the assault count, to be served
concurrently with lesser sentences of one
year for the criminal possession of a weapon
count, ninety days for the aggravated
harassment count, sixty days for the

To provide context and background for
the assault, Cochrane testified that she and
Petitioner previously had been involved in a
romantic relationship.
(Tr. at 28-29.)
According to Cochrane, the relationship
ended on “bad terms” (Tr. at 31) when, in
late 2006, Petitioner assaulted her (Tr. at
29). Cochrane referred to the prior assault
three times during her testimony. (Tr. at 29,
31-34, 91-92.) However, prior to trial,
Justice Dawson had conducted a hearing,
pursuant to People v. Molineux, 168 N.Y.
264 (1901), in which he ruled that evidence
of this previous assault was inadmissible
2

attempted assault count, and sixty days for
the menacing count. (Sent. at 11.)

Petitioner timely filed his Objections on
August 24, 2010. (Doc. No. 10.)

Petitioner appealed his conviction to the
Appellate Division, First Department,
arguing that (1) “[t]he verdict was against
the weight of the evidence,” and (2)
Cochrane’s testimony that Petitioner had
previously assaulted her and bought drugs
on the night of the stabbing violated the
pretrial Molineux ruling. 2 (Johnson App.
Br. at 23, 36.) On November 19, 2009, the
Appellate Division unanimously affirmed
Johnson’s conviction. People v. Johnson,
888 N.Y.S.2d 506, 507 (1st Dep’t 2009).
The Court of Appeals then denied
Petitioner’s application for leave to appeal
on March 1, 2010. People v. Johnson, 899
N.Y.S.2d 136 (2010).

II. LEGAL STANDARD
A federal court may grant habeas corpus
relief only if a claim that was adjudicated on
the merits in state court (1) “resulted in a
decision that was contrary to, or involved an
unreasonable application of, clearly
established Federal law, as determined by
the Supreme Court of the United States” or
(2) “resulted in a decision that was based on
an unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d).
A court may accept, reject, or modify, in
whole or in part, the findings or
recommendations made by a magistrate
judge. Fed. R. Civ. P. 72(b); Grassia v.
Scully, 892 F.2d 16, 19 (2d Cir. 1989). A
court may accept those portions of a report
to which no specific, written objection is
made, as long as the factual and legal bases
supporting the findings are not clearly
erroneous. See Greene v. WCI Holdings
Corp., 956 F. Supp. 509, 513 (S.D.N.Y.
1997) (citing Fed. R. Civ. P. 72(b) and
Thomas v. Arn, 474 U.S. 140, 149 (1985)).
To the extent that a petitioner makes specific
objections to a magistrate judge’s findings,
the court must undertake a de novo review
of the petitioner’s objections. See 28 U.S.C.
§ 636(b)(1); United States v. Male Juvenile,
121 F.3d 34, 38 (2d Cir. 1997). However,
where the objections are “conclusory or
general,” or where a petitioner “simply
reiterates his original arguments,” the report
should be reviewed only for clear error.
Walker v. Vaughan, 216 F. Supp. 2d 290,
292 (S.D.N.Y. 2002) (citation and internal
quotation marks omitted); accord Cartagena
v. Connelly, No. 06 Civ. 2047 (LTS)
(GWG), 2008 WL 2169659, at *1 (S.D.N.Y.
May 23, 2008).
Objections of parties
appearing pro se are “generally accorded

B. Procedural History
Petitioner commenced this action on
April 26, 2010, by filing the Petition,
arguing that (1) the verdict was against the
weight of the evidence, and (2) Petitioner
was denied a fair trial as a result of
Cochrane’s testimony regarding previous
uncharged crimes. (Doc. No. 2.) On April
29, 2010, the case was referred to Magistrate
Judge
Peck
for
a
report
and
recommendation. (Doc. No. 3.) On June 3,
2010, Respondent filed its Opposition to the
Petition. (Doc. No. 5.) On August 6, 2010,
Judge Peck issued his 52-page Report,
recommending that the Petition be denied.
(Doc. No. 9.) Specifically, Judge Peck
found that (1) Petitioner’s first claim was
not cognizable under habeas review, (2)
even if it were, it was meritless, and (3) the
uncharged crime testimony did not deprive
Petitioner of a fundamentally fair trial. (Id.)
2

The issue of Petitioner’s drug possession was not
raised at the Molineux hearing. (See H. at 3-9.)
Nevertheless, the Court here repeats Petitioner’s
framing of the issues on appeal.

3

leniency” and construed “to raise the
strongest arguments that they suggest.”
Milano v. Astrue, No. 05 Civ. 6527 (KMW)
(DCF), 2008 WL 4410131, at *2 (S.D.N.Y.
Sept. 26, 2008) (internal quotation marks
omitted).

B. 28 U.S.C. § 2254 Deferential Review
The Court assumes for argument’s sake
that Petitioner’s second objection – to Judge
Peck’s application of the standard of review
under 28 U.S.C. § 2254 – is a separate
objection and not merely a reiteration of
Petitioner’s
concerns
regarding
the
insufficiency of Justice Dawson’s curative
instructions. Because this objection was not,
and indeed could not have been, addressed
in the Report, the Court reviews it de novo.

III. DISCUSSION
Petitioner raises two principal objections
to the Report. First, Petitioner challenges
the Report’s finding that the curative
instructions to the jury were sufficient,
maintaining that the only permissible cure
was to declare a mistrial. (Obj. at 3.)
Second, Petitioner claims that Judge Peck’s
application of the standard of review under
28 U.S.C. § 2254 is flawed, and that the
Court should be free to review his claim de
novo and order a new trial. (Obj. at 4-5.)

Petitioner argues that Judge Peck’s
application of 28 U.S.C. § 2254 is deficient
because he failed to conduct a de novo
review of the Petition in light of Petitioner’s
claims of constitutional violations. (See
Obj. at 4 (arguing that 28 U.S.C. § 2254
“DOES NOT preclude habeas review where
a XIV Amendment claim is brought forth in
a clear context of abuse by the State”).)
Accordingly, Petitioner argues that Judge
Peck impermissibly failed to conduct an
“honest review where constitutional abuses
are brought forth.” (Id.) Presumably, this
“honest review” is in contrast with the
Report’s conclusion that 28 U.S.C. § 2254
requires a highly deferential standard of
review with respect to the State Court’s
legal rulings. (Report at 24, 27.)

A. Curative Instructions
Petitioner’s first objection merely
reiterates his argument in the Petition and
does not raise specific concerns with
findings in the Report. As noted above,
where a petitioner “simply reiterates his
original arguments,” a court should review a
report and recommendation only for clear
error. Walker, 216 F. Supp. 2d at 292. The
Court finds no error in Judge Peck’s analysis
of the curative instructions and thus adopts
the well-reasoned Report on this issue.
Indeed, even if the Court were to apply the
more demanding de novo standard, it would
reach the same conclusion with respect to
the law and its application to the facts at
trial. Put simply, the Court finds that the
Report correctly applied the “fundamental
fairness” standard articulated in Dowling v.
United States, 493 U.S. 342, 352 (1990), and
appropriately concluded that Petitioner “was
not deprived of a fundamentally fair trial”
(Report at 45-49).

In determining the proper standard of
review, the Report relied on the Second
Circuit’s interpretation of 28 U.S.C. § 2254
in a habeas case involving a similar state
court evidentiary ruling. (Report at 45
(citing Jones v. Stinson, 229 F.3d 112 (2d
Cir. 2000)).) In Jones, the Second Circuit
held that, although “[o]n direct review, [the
court] might have concluded” that a
statement at trial “created reasonable doubt
that did not otherwise exist. As a habeas
court, . . . [the court’s] review is limited to
whether the appellate division’s ruling was
objectively reasonable, not whether it was
correct.” Jones, 299 F.3d at 121. This

4

(“[T]he Supreme Court has not directly held
that due process is violated by the
introduction at trial of evidence of a
defendant’s uncharged crimes.”). Because
Judge Peck properly applied a deferential
standard of review to the appellate court’s
rulings under 28 U.S.C. § 2254, the Court
rejects Petitioner’s second objection. 4

standard has been oft-repeated in Second
Circuit precedent. See, e.g., Hubrecht v.
Artus, 457 F. App’x 29, 31-32 (2d Cir.
2012) (“An erroneous evidentiary ruling
does not rise to the level of constitutional
error unless the omitted evidence evaluated
in the context of the entire record creates a
reasonable doubt that did not otherwise
exist.” (internal quotation marks omitted));
Dunlap v. Burge, 583 F.3d 160, 165 (2d Cir.
2009) (“Thus, a federal court might agree
with a petitioner that the relevant federal law
should have been interpreted differently than
the way it was interpreted by the state court
yet still conclude that the state court’s
application of the federal law was not
unreasonable.”).

C. Remaining Findings
To the extent that Petitioner does not
object to the Report’s remaining findings
concerning the weight and sufficiency of the
evidence presented at trial, the Court finds
no clear error and adopts those portions of
the Report in full.
III. CONCLUSION

On appeal, the First Department
concluded that the “drastic remedy of a
mistrial was not warranted, because the
curative actions that were either provided by
the court, or offered by the court but rejected
by defendant, were sufficient to prevent
defendant from being prejudiced.” Johnson,
888 N.Y.S.2d at 505-07. Judge Peck
determined that this was not an objectively
unreasonable application of Supreme Court
precedent, and the Court cannot disagree. 3
(Report at 50-51); see, e.g., Mercedes v.
McGuire, No. 08 Civ. 299 (JFB), 2010 WL
1936227, at *8 (E.D.N.Y. May 12, 2010)
(“[T]he Supreme Court has never held that a
criminal defendant’s due process rights are
violated by the introduction of prior bad acts
or uncharged crimes.”); Tingling v. Donelli,
No. 07 Civ. 1833 (RMB) (DCF), 2008 WL
4724567, at *9 (S.D.N.Y. Oct. 24, 2008)

For the foregoing reasons, the Court
adopts the Report in its entirety and denies
the Petition. A certificate of appealability
will not issue because Petitioner has not
made a substantial showing of the denial of
a constitutional right.
See 28 U.S.C.
§ 2253(c)(2); see also Love v. McCray, 413
F.3d 192, 195 (2d Cir. 2005). The Clerk of
the Court is respectfully directed to enter
judgment in favor of Respondent and to
close this case.
SO ORDERED.
______________________
RICHARD J. SULLIVAN
United States District Judge
Dated: August 27, 2013
New York, New York

3

It must also be noted that Judge Peck’s application
of the deferential 28 U.S.C. § 2254 standard was an
alternative holding to his conclusion that the First
Department was correct in deciding that a mistrial
was not warranted. (Report at 50 (“[E]ven if the First
Department were wrong (which it was not), this
Court cannot say that the First Department’s decision
was an unreasonable application of Supreme Court
precedent . . . .”).)

4

In any event, as noted above, even if the Court were
to apply the more demanding de novo standard to the
state appellate court’s ruling, it would reach the same
conclusion with respect to the sufficiency of the
curative instructions provided by the state trial court.

5