Pagan v. LaValley
Filing
78
ORDER ADOPTING REPORT AND RECOMMENDATION for 67 Report and Recommendations. The ultimate conclusion of the R&R is adopted, and the action is dismissed. Pagan has not made a substantial showing of the denial of a constitutional right and, acc ordingly, a certificate of appealability will not issue. See 28 U.S.C. § 2253; Blackman v. Ercole, 661 F.3d 161, 16364 (2d Cir. 2011). This 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 in forma pauperis status is thus denied. See Coppedge v. United States, 369 U.S. 438, 44445 (1962). (Signed by Judge P. Kevin Castel on 7/26/2018) Copies Mailed By Chambers. (kgo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JASON PAGAN,
Petitioner,
-against-
13-cv-5324 (PKC)(SN)
ORDER ADOPTING REPORT
AND RECOMMENDATION
THOMAS LAVALLEY,
Respondent.
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CASTEL, U.S.D.J.
In 2009, a jury in the New York Supreme Court, New York County, found
petitioner Jason Pagan guilty of attempted murder, assault, and criminal possession of a weapon
in connection with the 2008 shooting of a karaoke bar bouncer. The Appellate Division, First
Department, affirmed the judgment. People v. Pagan, 88 A.D.3d 37 (1st Dep’t 2011). The New
York Court of Appeals denied leave to appeal. People v. Pagan, 17 N.Y.3d 954 (2011). Pagan
pursued various forms of collateral relief. In July 2013, Pagan, proceeding pro se, filed a
petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, which he subsequently
amended (the “Petition”). (Dkts. 2, 54). Magistrate Judge Sarah Netburn, to whom the Court
referred the Petition, issued a Report and Recommendation (the “R&R”) recommending that the
Court dismiss the Petition in its entirety. (Dkts. 7, 67).
The Court adopted the R&R after no party timely filed an objection, but vacated
that Order after Pagan advised the Court that he had not received a copy of the R&R. (Dkts. 68,
70–72). The Court now reviews the R&R with the benefit of Pagan’s objections. (Dkt. 74). For
the reasons to be explained, the Court adopts the conclusion of the R&R.
Mailed to Jason Pagan July 26, 2018
DISCUSSION.
In reviewing an R&R, a district 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 conducts a de novo review of the R&R to the extent Pagan raises an objection. Id. In
order to establish his entitlement to federal habeas relief for a claim adjudicated on the merits in
state court, Pagan must show that (i) the state court’s actions were “contrary to, or involved an
unreasonable application of,” clearly established federal law as determined by the United States
Supreme Court, or (ii) “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);
see Williams v. Taylor, 529 U.S. 362, 402–13 (2000).
In the Petition, Pagan argued that: (1) the evidence establishing him as Salome’s
shooter was insufficient; (2) the admission of evidence regarding his gang affiliation violated due
process; (3) trial counsel was ineffective for failing to present testimony at the Sirois hearing; (4)
appellate counsel was ineffective for failing to argue trial counsel’s ineffectiveness for failing to
call an eyewitness testimony expert and a medical expert; and (5) appellate counsel was
ineffective for failing to argue trial counsel’s ineffectiveness for failing to contest the
admissibility of Pagan’s statements to the police. After summarizing the case’s procedural
history and reviewing the applicable law, Magistrate Judge Netburn concluded in the R&R that
all but one of Pagan’s claims failed for procedural reasons and, further, that all of his claims
failed on the merits.
As noted, the Court reviewed the R&R de novo, and the record on which it is
based, to the extent that Pagan has raised an objection. See 28 U.S.C. § 636(b)(1); Rule 72(b),
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Fed. R. Civ. P. The Court need not address in this Order all that it considered, but it has
considered the entirety of the objections. 1
I.
Sufficiency of the Evidence.
The R&R concluded that Pagan’s challenge to the sufficiency of the evidence was
procedurally barred, unexhausted, and lacked merit. (R&R at 13–18). Regarding the procedural
bar, the state court ruling on Pagan’s CPL § 440.10 motion concluded that Pagan’s failure to
raise a legal sufficiency argument on direct appeal acted as a mandatory bar to review. (Id. at
13–14). On that basis, the R&R concluded that the state court relied on an independent and
adequate state procedural rule in denying the claim, and there was no sufficient showing or
circumstance to excuse the bar. (Id.). In his objections, Pagan argued that he did in fact
challenge the sufficiency of the evidence on direct appeal. (Objections at 25).
On direct appeal, Pagan argued that the verdict contradicted the weight of the
evidence and the conviction violated due process. (State Court Record (“SCR”) (Dkt. 18-2) at
SR-43–SR-66). The First Department concluded that the verdict was not against the weight of
the evidence and its decision did not specifically address a legal sufficiency claim. (Id. at SR154). Although Pagan cited to Jackson v. Virginia, 443 U.S. 307 (1979), in a brief on direct
appeal, his claim and arguments on direct appeal related to the weight, not the legal sufficiency,
of the evidence. (Id. at SR-43–SR-66). The Court thus adopts the R&R as to this claim.
II.
Due Process Violation.
The R&R concluded that Pagan’s due process challenge to the admission of
evidence relating to his gang affiliation was exhausted, but procedurally barred and meritless.
The Court has reviewed the portions of the R&R to which no objections were made for clear error and found none.
See Rule 72(b), Fed. R. Civ. P. advisory committee’s note to 1983 amendment. The Court adopts the R&R as to
those parts.
1
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(R&R at 20–23). Regarding the procedural bar, the R&R concluded that the bar applied because
Pagan failed to preserve the claim for appellate review and there was no sufficient showing or
circumstance to excuse the bar. (Id. at 20–21). Pagan objected to the R&R by arguing that his
“appellate counsel contested the erroneous admission” of the gang affiliation evidence as a “due
process error,” and that such error is not harmless. (Objections at 25). He further objected to the
prosecutor’s reliance on this evidence to attack Pagan at trial and use it for propensity purposes.
(Id.) None of Pagan’s objections disturb the R&R’s well-reasoned determination that Pagan’s
trial counsel failed to preserve the claim and that, even if preserved, the claim fails on the merits.
The Court thus adopts the R&R as to this claim.
III.
Ineffective Assistance of Trial Counsel.
The R&R concluded that Pagan’s ineffective assistance of trial counsel claim
regarding the failure to present the testimony of Pagan’s mother, Luz Igartua, at the Sirois
hearing was exhausted, but procedurally barred and meritless. 2 (R&R at 23–27). Pagan objected
to the R&R’s determination that the claim should have been raised on direct appeal and not first
asserted in a CPL § 440.10 motion. (Objections at 25). He argued that raising the claim on
direct appeal was unnecessary “because it was supported by a sworn affidavit by LUZ
IGARTUA that contained exculpatory facts that did not appear on record.” (Id. (emphasis in
original)). The Court concludes that the showing on the record does not amount to the
“exceptional” circumstances necessary to justify excusing the procedural bar. See Cotto v.
Herbert, 331 F.3d 217, 240 (2d Cir. 2003). The Court thus adopts the R&R as to this claim.
The filings include references to Pagan’s mother as both “Luz Guratua” and “Luz Igartua.” (E.g., R&R at 3; Dkt.
62-1 at SR-79). The Court uses “Igartua” from Pagan’s objections. (E.g., Objections at 15).
2
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IV.
Ineffective Assistance of Appellate Counsel.
In the Petition, Pagan argued that appellate counsel was ineffective for failing to
argue trial counsel’s ineffectiveness for failing to (i) present certain expert testimony and (ii)
argue the admissibility of Pagan’s statements to the police.
a. Failure to Present Expert Testimony.
The R&R concluded that Pagan’s ineffectiveness of appellate counsel claim
regarding expert testimony on the reliability of eyewitness identifications was exhausted, but
meritless. (R&R at 27–31). Pagan does not specifically object to the R&R’s reasoning, but
rather repeats certain arguments from the Petition. The Court thus adopts the R&R as to this
part.
The R&R does not specifically mention Pagan’s related ineffectiveness of
appellate counsel claim regarding expert medical testimony. (Pet. (Dkts. 54-2 & 54-3) at 17–19).
For substantially the same reasons as stated in the R&R regarding the eyewitness expert claim,
the Court concludes that the medical expert claim was exhausted, but fails on the merits.
b. Failure to Argue the Admissibility of Pagan’s Statements to Police.
The R&R concluded that the ineffectiveness of appellate counsel claim regarding
Pagan’s statements to the police was procedurally barred and meritless. (R&R at 27–33). Pagan
objected by arguing that arguments raised on the “admissibility of the admission” to the police
were “brought before the [C]ourt of [A]ppeals” but “not on the record.” (Objections at 25–26).
Even if Pagan’s assertion was viable, which the Court cannot conclude, it would not overcome
the well-reasoned alternative conclusion of the R&R that the claim fails on the merits. The
Court thus adopts the R&R as to this claim.
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CONCLUSION
The ultimate conclusion of the R&R is adopted, and the action is dismissed.
Pagan has not made a substantial showing of the denial of a constitutional right
and, accordingly, a certificate of appealability will not issue. See 28 U.S.C. § 2253; Blackman v.
Ercole, 661 F.3d 161, 163–64 (2d Cir. 2011). This 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 in forma
pauperis status is thus denied. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED.
Dated: New York, New York
July 26, 2018
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