Nelson v. People of New York
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION: For the foregoing reasons, the Report is adopted in full, and the Petition is DENIED. The Clerk of Court is directed to mark the case as closed. Since Petitioner has not made a substantial showi ng of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c). Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order would not be taken in good faith and therefore in forma paup eris status is denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of Court shall dismiss this Petition and close the case. (Signed by Judge Katherine Polk Failla on 9/10/2014) Copies Mailed By Chambers. (tn)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PEOPLE OF NEW YORK,
DOC #: _________________
DATE FILED: ______________2014
10 Civ. 9021 (KPF) (HBP)
OPINION AND ORDER
ADOPTING REPORT AND
KATHERINE POLK FAILLA, District Judge:
Petitioner Tyrone Nelson (“Petitioner”), who is proceeding pro se and is
currently incarcerated at the Wallkill Correctional Facility in Wallkill, New
York, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
on November 17, 2010 (the “Petition”), against the People of New York. In it,
Petitioner seeks review of his New York State Supreme Court convictions for
three counts of Aggravated Criminal Contempt and one count of Criminal
Mischief in the Fourth Degree, in violation of New York Penal Law §§ 215.52(1)
and 145.00(1), respectively. United States Magistrate Judge Henry B. Pitman
issued a Report and Recommendation dated June 18, 2014 (the “Report”),
recommending that the Petition be denied. The Court has examined both the
Report and Petitioner’s July 21, 2014 Objection to that Report (the “Objection”),
and finds that the Report should be adopted in full. Accordingly, the Petition is
The facts and procedural history leading up to the Petition are set forth
in the Report. (See Dkt. #31). Nonetheless, a brief summary of the relevant
facts is useful to this Court’s analysis.
On July 11, 2007, a grand jury indicted Petitioner on one count of
Second Degree Assault, three counts of Aggravated Criminal Contempt, and
one count of Criminal Mischief in the Fourth Degree, in violation of New York
Penal Law §§ 120.05(2), 215.52(1) and 145.00(1), respectively. (Report 5).
Petitioner was convicted at trial of three counts of Aggravated Criminal
Contempt and one count of Criminal Mischief in the Fourth Degree, and
sentenced on March 5, 2008, to an indeterminate term of nine to eighteen
years’ imprisonment. (Id. at 8).
The People’s evidence at trial established the following: Petitioner was
involved in a romantic relationship with the complaining victim, Alicia MendezVaz. (Report 2). The criminal charges against Petitioner arose from several
violent incidents between Petitioner and Mendez-Vaz, including episodes in
which (i) Petitioner struck the door of Mendez-Vaz’s apartment with a
dumbbell, resulting in an Order of Protection against Petitioner; (ii) Petitioner
Petitioner submitted reply papers, dated August 25, 2014, without the Court’s
permission and well after the deadline to file his opposition had passed. (See Dkt. #37).
Accordingly, the Court rejects this untimely and unsanctioned filing. Nonetheless, the
Court has reviewed this submission in order to raise pro se Petitioner’s strongest
arguments, and finds that the reply submission largely repeats previously-raised
arguments and thus need not be considered here.
punched Mendez-Vaz in the face after accusing her of sleeping with his
brother, causing her to fall to the ground, at which point Petitioner kicked her
several times, causing bruising and a black eye; (iii) Petitioner became upset
over a comment Mendez-Vaz made to him and choked her as a result, causing
bruising; (iv) Petitioner became angry after observing Mendez-Vaz with another
man, and thereafter attacked Mendez-Vaz by digging his thumb into her left
eye, punching her in the face, hitting her with a glass object, and choking her
until she lost consciousness. (Report 2-4). 2
Petitioner was appointed counsel at the time of his arraignment;
however, he notified the Court that he was unhappy with his counsel and
wished to be appointed new counsel. (Report 5). The court granted his
request. However, on the day before trial, Petitioner notified the court that he
no longer wished to be represented by his second appointed counsel; in
support of that assertion, Petitioner complained, in sum and substance, that
that counsel had treated him brusquely. (Id. at 5-6). The trial court denied his
motion for new counsel, and Petitioner elected to proceed to trial pro se, though
with his second appointed counsel acting as standby counsel. (Id. at 6-7).
Petitioner testified in his own defense at trial, during which he claimed
that Mendez-Vaz’s injuries were caused by a combination of epileptic and sinus
conditions and denied ever striking Mendez-Vaz. (Report 4). Petitioner was
Mendez-Vaz underwent reconstructive surgery on her left eye following the last assault.
ultimately convicted at trial of four of the five counts with which he had been
initially charged, acquitting him of the assault charge.
On March 7, 2008, Petitioner moved to set aside the jury’s verdict
pursuant to New York Criminal Procedure Law (“CPL”) § 330.30; that motion
was denied on August 22, 2008. (Report 8-9). The Appellate Division affirmed
Petitioner’s conviction on June 23, 2009. People v. Nelson, 881 N.Y.2d 94 (1st
Dep’t 2009). Petitioner’s application to appeal that decision was denied by the
New York Court of Appeals on August 20, 2009. People v. Nelson, 13 N.Y.3d
While Petitioner’s direct appeal was pending, he made several collateral
attacks on his conviction in state court. His proceeding pursuant to Article 78
of New York’s Civil Practice Law and Rules was dismissed on September 24,
2008. (Report 11-12). Petitioner’s motion to vacate his conviction pursuant to
N.Y. CPL § 440.10 was denied on May 22, 2009. (Id. at 12). The Appellate
Division denied his application for leave to appeal that determination on March
THE STANDARD OF REVIEW
A court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1); 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. Am, 474 U.S. 140,
149 (1985)). A magistrate judge’s decision is clearly erroneous only if the
district court is “left with the definite and firm conviction that a mistake has
been committed.” Easley v. Cromartie, 532 U.S. 234, 235, 242 (2001) (quoting
United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
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 objections.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); United States v. Male Juvenile,
121 F.3d 34, 38 (2d Cir. 1997). Pro se filings are read liberally and interpreted
“to raise the strongest arguments that they suggest.” Pabon v. Wright, 459
F.3d 241, 248 (2d Cir. 2006) (internal quotation marks omitted). However,
where objections are “conclusory or general,” or where the 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) (internal
citation and quotation marks omitted).
Petitioner’s Grounds for Habeas Relief
The Petition, along with the other papers submitted by Petitioner to this
Court and various other state courts, is particularly difficult to follow. Judge
Pitman construed the Petition to assert five claims: (i) Petitioner was deprived
of his right to counsel when the trial court failed to conduct any inquiry of
Petitioner’s second counsel, and failed to appoint new counsel, after Petitioner
identified a “conflict”; (ii) Petitioner’s sentence violated his Due Process rights
and was an abuse of the trial court’s discretion, in view of the court’s alleged
earlier promise to impose a maximum sentence of six to twelve years;
(iii) Petitioner’s Double Jeopardy right was violated by the prosecution’s
initiation of grand jury proceedings after initially deciding to proceed by way of
information; (iv) the prosecution improperly offered evidence of previously
precluded bad acts; and (v) Petitioner’s right to a speedy trial was violated.
Judge Pitman thoroughly and carefully considered each claim
conceivably implicated by the Petition, and properly determined that they had
no merit, as will be discussed more fully below. Petitioner’s responsive
submission to this Court fails to raise any specific objection to the Report.
Instead, in his Objection, Petitioner (i) provides a multi-page recitation of the
history of the romantic relationship between Petitioner and Mendez-Vaz;
(ii) raises new claims not previously before the Court, including claims that
(a) his due process rights were violated when certain medical records were not
turned over to him, and (b) the prosecution withheld certain evidence from
him; and (iii) quotes heavily from other unrelated court opinions regarding the
Sixth Amendment right to counsel generally. (See generally Dkt. #36).
Petitioner’s Objection thus both raises plainly unexhausted claims and is
irrelevant to this Court’s review. On this basis, Petitioner has failed to properly
object to the Report, and the Court has accordingly reviewed the Report for
clear error. There is none.
Review of Petitioner’s Claims
Right to Counsel Claim
Judge Pitman first noted that Petitioner’s claim could be best understood
as a claim that he was denied counsel of his choice. (Report 25). It is wellestablished that “the right to counsel of choice does not extend to defendants
who require counsel to be appointed for them.” United States v. GonzalezLopez, 548 U.S. 140, 151 (2006). Accordingly, Petitioner had no right to
counsel of his choice, and his claim fails to state a ground for relief on this
basis. (See Report 25-27 (collecting cases)).
To the extent Petitioner complains of the trial court’s failure to engage in
an inquiry regarding substitution of counsel, Judge Pitman correctly found
that the record failed to establish any basis for such an inquiry. (Report 27).
“On the eve of trial,” as Petitioner’s request was here, “a defendant can only
substitute new counsel when unusual circumstances are found to exist, such
as a complete breakdown of communication or an irreconcilable conflict.”
United States v. Schmidt, 105 F.3d 82, 89 (2d Cir. 1997). On this basis,
Petitioner’s complaint that counsel “sp[oke] to him” in a rude or brusque
manner did not trigger any duty on behalf of the trial court to inquire further.
(See id. at 28-29). Put simply, no “conflict” was ever identified to the trial
court. Accordingly, the Court finds no clear error in the Report’s
recommendation in this respect.
Judge Pitman construed the Petition as claiming that Petitioner’s
sentence of nine to eighteen years’ imprisonment violated the Fourteenth
Amendment’s Due Process clause, in light of the trial court’s alleged “promise”
during plea negotiations that his maximum sentence would not exceed six to
twelve years. (Report 30). According to Petitioner, this “promise” rendered
Petitioner’s decision to proceed to trial not knowing, voluntary, and intelligent.
(Id. at 31). However, even assuming that any such “promise” had been made
by the trial court, Judge Pitman correctly noted that the decision to proceed to
trial need not be knowing, voluntary, and intelligent. In contrast to a guilty
plea, where a defendant waives certain constitutional rights (such as the right
to trial by jury), the decision to proceed to trial constitutes a waiver of no
rights. (Report 32 (collecting cases)). In addition, to the extent Petitioner seeks
federal court review of the length of his sentence, Judge Pitman properly found
that such a claim may not be considered in a habeas proceeding, because a
defendant has no substantive right to a particular sentence within a range
authorized by statute. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992)
(per curiam). On this basis, the Report properly determined that Petitioner’s
claim was frivolous and failed to provide a ground for relief.
Petitioner’s Remaining Claims
Judge Pitman found that Petitioner’s remaining claims — based upon
Petitioner’s Double Jeopardy clause rights, the purportedly improper admission
of evidence of prior bad acts, and Petitioner’s right to a speedy trial — were
each procedurally barred and improperly before this Court. (Report 34-38).
Petitioner has failed to object to this, or any, determination in the Report.
Accordingly, the Court has reviewed Judge Pitman’s decision for clear error in
this regard and has found none. Each of these claims is procedurally barred
for the reasons discussed in the well-reasoned and thorough Report. (See id.).
Accordingly, Petitioner has failed to assert appropriate grounds for relief and
the Petition must be denied on this basis.
For the foregoing reasons, the Report is adopted in full, and the Petition
is DENIED. The Clerk of Court is directed to mark the case as closed.
Since Petitioner has not made a substantial showing of the denial of a
constitutional right, a certificate of appealability will not issue. See 28 U.S.C.
§ 2253(c). Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order
would not be taken in good faith and therefore in forma pauperis status is
denied for the purpose of any appeal. Coppedge v. United States, 369 U.S. 438,
444-45 (1962). The Clerk of Court shall dismiss this Petition and close the
Dated: September 10, 2014
New York, New York
KATHERINE POLK FAILLA
United States District Judge
A copy of this Order was mailed by Chambers to:
Wallkill Correctional Facility
Wallkill, NY 12589-0286
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