Grady v. Conway

Filing 24

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION: Petitioner's petition for a writ of habeas corpus is DENIED. Further, since Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appeala bility 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. U nited States, 369 U.S. 438, 444-45 (1962). The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. (Signed by Judge Katherine Polk Failla on 8/24/2015) Copies Mailed By Chambers. (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
MORRIS GRADY,
:
:
Petitioner,
:
:
v.
:
:
SUP. JAMES CONWAY,
:
:
Respondent. :
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: August 24, 2015
______________

11 Civ. 7277 (KPF) (FM)
OPINION AND ORDER
ADOPTING REPORT AND
RECOMMENDATION

KATHERINE POLK FAILLA, District Judge:
On May 11, 2015, Chief United States Magistrate Judge Frank Maas
issued a Report and Recommendation (the “Report”) recommending that
Petitioner Morris Grady’s pro se petition for a writ of habeas corpus pursuant
to 28 U.S.C. § 2254 be denied, and that no certificate of appealability should
issue. (Dkt. #23). Neither party has filed any objections to the Report. For the
reasons set forth below, the Court finds no error in the Report and adopts the
Report in its entirety.
BACKGROUND
The facts and procedural history of the instant action are set forth in
detail in the Report. (See Report 2-11). In brief, Petitioner was arrested in
April 2006 as a result of two separate attempted robberies: the first at a
parking garage on March 18, 2006, and the second at a laundromat on April 4,
2006. In the first of these incidents, Petitioner attempted to shoot a garage
employee, but the gun misfired and the victim suffered a less-severe head

wound; in the second of these incidents, Petitioner shot a laundromat employee
in the arm, causing serious damage. (See id. at 2-4 and n.3, 27).
On April 18, 2006, Petitioner was charged in Indictment Number
1939/06 with (i) attempted second-degree murder, three counts of first-degree
robbery, two counts of attempted first-degree robbery, and one count each of
second-degree criminal possession of a weapon, second-degree assault, seconddegree robbery, and attempted second-degree robbery, all in connection with
the March 18, 2006 garage robbery; and (ii) attempted second-degree murder,
two counts of first-degree assault, one count of first-degree robbery, two counts
of attempted first-degree robbery, and one count of third-degree criminal
possession of a weapon, all in connection with the April 4, 2006 laundromat
robbery. (Report 1). He proceeded to trial, and was convicted on March 8,
2007, of one count of attempted murder in the second degree, one count of
assault in the second degree, two counts of robbery in the first degree, and one
count of attempted robbery in the first degree with respect to the garage
robbery; and one count of attempted murder in the first degree, one count of
assault in the first degree, one count of attempted robbery in the first degree,
and one count of robbery in the first degree with respect to the laundromat
robbery. (Id. at 8). Ultimately, Grady was sentenced to an aggregate term of 40
years’ imprisonment. (Id. at 8-9).
Petition thereafter appealed to the Appellate Division, First Department.
Among other things, he claimed that (i) the trial court’s denial of his motion for
severance denied him a fair trial, (ii) his convictions were against the weight of
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the evidence, (iii) the trial court’s denial of his motion for a mistrial denied him
a fair trial, (iv) certain of the prosecutor’s comments during summation denied
him a fair trial, and (v) his prison sentence was excessive. (Report 9). His
arguments were rejected, and his conviction affirmed, in a unanimous decision
issued on November 19, 2009. People v. Grady, 891 N.Y.S.2d 15 (1st Dep’t
2009). Six months later, on May 10, 2010, the New York Court of Appeals
denied Petitioner’s request for leave to appeal to that court. People v. Grady,
14 N.Y.3d 888 (2010).
Petitioner filed his habeas petition in this Court on October 13, 2011.
(Dkt. #1). In response to Court concerns regarding the timeliness of his
petition, Petitioner filed an amended petition (the “Petition”) on January 11,
2012 (Dkt. #4). Petitioner’s petitions incorporated by reference his claims to
the Appellate Division. (See Dkt. #1, 4). On May 11, 2015, Judge Maas issued
his 31-page Report, addressing the procedural and substantive issues
associated with Petitioner’s claims. (Dkt. #23).
Judge Maas began by addressing Respondent’s argument that certain of
Petitioner’s claims were procedurally barred because the trial court had
decided certain matters based on Petitioner’s failure to abide by a state
procedural rule. (Report 12-18). Judge Maas concluded that Petitioner’s
severance and prosecutorial misconduct claims were indeed barred, and that
he was not required to decide the issue with respect to Petitioner’s mistrial
claim because a habeas court could deny even an unexhausted claim on the
merits. (Id. at 17). He then proceeded to the merits of Petitioner’s claims,
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finding that (i) Petitioner had not shown actual prejudice stemming from the
trial court’s denial of his severance motion; (ii) the trial court had not erred in
denying his motion for a mistrial, in light of the cumulative evidence and the
limiting instruction given to the jury; (iii) Petitioner had not demonstrated
prosecutorial misconduct that deprived him of a fair trial; (iv) New York State’s
“weight of the evidence” challenges were not available to Petitioner on habeas
review, and, in any event, the evidence was sufficient to sustain the verdict;
and (v) there was no basis in federal habeas review to challenge Petitioner’s
sentence. (Id. at 18-29).
Citing 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), Judge Maas
advised the parties that they had 14 days from the issuance of the Report to
file written objections and, further, that “the failure to file timely objections will
result in a waiver of those objections for purposes of appeal.” (Report 30
(citation omitted)). Neither party has filed an objection.
DISCUSSION
When a district court assesses the report and recommendation of a
magistrate judge, the court “may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge.” 28 U.S.C.
§ 636(b)(1). The court reviews de novo any portions of a magistrate judge’s
report and recommendation to which a party submits a timely objection. Id.
“To accept those portions of the report to which no timely objection has been
made, a district court need only satisfy itself that there is no clear error on the
face of the record.” King v. Greiner, No. 02 Civ. 5810 (DLC), 2009 WL 2001439,
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at *4 (S.D.N.Y. July 8, 2009) (internal quotation marks and citation omitted),
aff’d, 453 F. App’x 88 (2d Cir. 2011) (summary order); see also Brown v. Time
Warner Cable, Inc., No. 10 Civ. 8469 (AJN) (RLE), 2012 WL 5878751, at *1
(S.D.N.Y. Nov. 21, 2012); Gomez v. Brown, 655 F. Supp. 2d 332, 341 (S.D.N.Y.
2009).
A party’s failure to object to a report and recommendation, after receiving
clear notice of the consequences of such a failure, operates as a waiver of the
party’s right both to object to the report and recommendation and to obtain
appellate review. See Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992);
United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) (“We have
adopted the rule that failure to object timely to a magistrate judge’s report may
operate as a waiver of any further judicial review of the decision, as long as the
parties receive clear notice of the consequences of their failure to object.”); see
also Thomas v. Arn, 474 U.S. 140, 155 (1985) (holding that Courts of Appeals
may adopt rules regarding waivers). This rule applies to both pro se and
counseled litigants. See Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir.
2008) (concluding that a pro se plaintiff waives the right to appellate review by
not timely objecting to a report and recommendation, provided the Magistrate
Judge warned plaintiff and cited the appropriate provisions of the Federal
Rules of Civil Procedure and Title 28 of the United States Code).
Here, Judge Maas explicitly informed the parties that they had 14 days
after being served with a copy of the Report to file any objections, and further
warned them that failure to file a timely objection would result in a waiver of
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the right to do so, and a waiver of the right to object on appeal. (Report 30).
Having received clear notice of the consequences of remaining silent, and
having filed no objections, the parties have waived their respective rights to
object to the Report and to obtain appellate review of the Report.
Despite the waivers, the Court has reviewed the Report, unguided by
objections, and finds it to be well-reasoned and grounded in fact and law.
There is no error in Judge Maas’s careful analysis. For all of these reasons, the
Report is adopted in its entirety.
CONCLUSION
Petitioner’s petition for a writ of habeas corpus is DENIED. Further,
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 is directed to terminate all pending motions, adjourn
all remaining dates, and close this case.

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SO ORDERED.
Dated:

August 24, 2015
New York, New York

_____________________________
KATHERINE POLK FAILLA
United States District Judge

Sent by First Class Mail to:
Morris Grady
DIN #07-A-2493
Clinton Correctional Facility
1156 Rt. 374
P.O. Box 2001
Dannemora, New York 12929

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