Fernandez v. Lee

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATION: for 17 Report and Recommendations. After considering the motion, Magistrate Judge Francis issued a Report and Recommendation, dated July 12, 2012, in which he recommended that Plaintiff's application f or a stay be denied and that the Petition be denied as well. Plaintiff timely filed his objections. For the reasons articulated in Judge Francis' sagacious Report and Recommendation, Plaintiff's objections are overruled, and the Report and Recommendation is adopted in its entirety. (Signed by Judge Andrew L. Carter, Jr on 9/28/2012) (jfe)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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l-

Richard Fernandez,

Plaintiff,
10 Civ. 9011 (ALC) (JCF)

ORDER ADOPTING REPORT
AND RECOMMENDATION

- against -

Supt. William A. Lee,

Defendants.

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ANDREW L. CARTER, JR., United States District Judge:

On November 12, 2010, Plaintiff Richard Fernandez ("Plaintiff"
or "Petitioner-) filed a Petition for a Writ of Habeas Corpus
("Petition") pursuant to 28 U.S.C.

§

2254.

In his Petition,

Plaintiff challenges his convictions for Assault in the First
Degree, and two counts of Robbery in the Second Degree following
a jury trial in New York State Supreme Court, New York County.
Plaintiff contends that:
of trial counsel;
to counsel;

(1) he received ineffective assistance

(2) his delayed arraignment violated his right

(3) he was arrested without probable cause, and that

illegal arrest tainted all of the prosecution's evidence;
(4) the trial judge erred in not suppressing his post-Miranda
statements as tainted by his earlier statement, which had been

suppressed; and (5) the trial judge erred in denying his request
for a jury charge on the voluntariness of his statements.
This matter was referred to United States Magistrate Judge
James C. Francis pursuant to an Order dated February 17, 2012.
On April 25, 2012, Petitioner applied for a stay of his Petition
while he exhausted his claims of ineffective assistance of
counsel and arraignment delay through a writ of coram nobis in
New York State Court. 1

On May 29, 2012, Defendant Superintendent

William A. Lee opposed Plaintiff's Petition and motion for a
stay.
After considering the motion, Magistrate Judge Francis issued
a Report and Recommendation, dated July 12, 2012, in which he
recommended that Plaintiff's application for a stay be denied
and that the Petition be denied as well.
his objections.

Plaintiff timely filed

For the reasons articulated in Judge Francis'

sagacious Report and Recommendation, Plaintiff's objections are
overruled, and the Report and Recommendation is adopted in its
entirety.

Dated: New York, New York
September 28, 2012

I Petitioner raised his first three claims
illegal arrest, failure to
suppress statements, and failure to give a voluntariness instruction - on
direct appeal.

SO ORDERED.

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-C-a-rt-e-r-, J-r -.
United States District Judge