Lopez v. Superintendent of Five Points Correctional Facility

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATION for 26 Report and Recommendations. Accordingly, for the reasons set forth above and in Judge Cott's Report, IT IS HEREBY ORDERED THAT Petitioner's petition for a writ of habeas corpus and Petitio ner's request for the Court to dismiss his petition without prejudice are each DENIED. The Clerk of the Court is respectfully directed to terminate the petition pending at Doc. No. 1 and to close this case. (Signed by Judge Richard J. Sullivan on 5/20/2015) Copies Sent By Chambers. (kko)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOEY LOPEZ,

USDS SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: S-:- 2.D - 1.S-~~--~~~~~

Plaintiff,
-v-

SUPERfNTENDENT OF FIVE POfNTS
CORRECTIONAL FACILITY ,

No. 14-cv-46 15 (RJS) (JLC)
ORDER ADOPTING REPORT AND
RECOMMENDATION

Defendant.

RIC HARD J. SULLIVAN, District Judge:
Petitioner Joey Lopez brings this petiti on for a writ of habeas corpus pursuant to 28 U.S.C.
§ 225 4, challenging hi s conviction in New York Supreme Court, New York County, on two counts
each of burglary in the first degree and robbery in the second degree and one count each of attempted
assault in the first degree, assault in the second degree, and attempted assault in the second degree.
(Doc. No. 1 ("'Petition" or "Pet.").) In the Petition, Petitioner argues that he is entitled to habeas relief
on the grounds that his convictions for burglary in the first degree and robbery in the second degree
were ( I) against the weight of the evidence, and (2) unsupported by legally sufficient evidence. On
July 28, 20 14, the Court referred this matter to the Honorable James L. Cott, Magistrate Judge, for a
report and recommendation. (Doc. No. 3.) Thereafter, Respondent fil ed its opposition to the Petition
(Doc. No. 9) and Petitioner filed his re ply (Doc. No. 2 1). Additionally, Petitioner filed a motion for
discovery on January 13, 20 15 (Doc. No. 20), which Respondent opposed on January 20, 20 15 (Doc.
No. 24).
Now before the Court is Judge Cott 's Report and Recommendation (Doc. No. 26 (the
·'Report")), which recommends that ( 1) the request for d iscovery be denied on the basis that Petitioner

has not met his burden of showing "good cause" for discovery, and (2) the Petition be denied on the
grounds that (a) Petitioner's weight of the evidence claim is not cognizable in federal habeas,
(b) Petitioner' s legal insufficiency of the evidence claim was not exhausted, as Petitioner did not raise
insufficiency at trial or on appeal, and (c) even ifthe sufficiency of the evidence claim were exhausted,
there was sufficient evidence adduced at trial from which a jury could have found beyond a reasonable
doubt all of the elements of the offenses of conviction. Although Judge Cott informed the parties of
the fact that any obj ections to the Report were due by April 6, 2015 , and that failure to file timely
objections would constitute a waiver of those objections, see 28 U.S.C. § 636(b)( l )(C); Fed. R. Civ.
P. 72(b), neither party filed any objection to the Report. 1 However, on April 13, 2015 - seven days
after the deadline for filing objections - the Court received in chambers the attached letter from
Petitioner, dated April 8, 2015 , requesting that the Petition be dismi ssed without prejudice so that
Petitioner may exhaust hi s insuffici ency of the evidence claim.
DISCUSS ION

T he 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)(l); see also Fed . R. Civ. P. 72(b)(3). When no
objections to a report and recommendation are made, "a district court need only satisfy itself that
there is no clear error on the face of the record." Boyd v. City ofNew York, l 2-cv-3385 (PAE) (JCF),
20 13 WL 452313 , * I (S.D.N.Y. Feb. 6, 20 13) (citation and internal quotation marks omitted); see

also Lang ex rel. Morgan v. Astrue, 05-cv-7263 (KMK) (PED), 2009 WL 3747 169,

* 1 (S.D.N.Y.

Nov. 6, 2009) (same). 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, 242 (2001) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395

1

On March 23, 20 15, Respondent filed a letter req uesting that the Court adopt the Report in its entirety. (Doc. No. 27.)

2

(1948)). In light of the fact that Petitioner did not file any objections, the Court reviews the Report
only for clear error.
Having reviewed Judge Cott's exceedingly thorough and well-reasoned Report, the Court
finds that the reasoning and conclusions set forth therein are not facially or clearly erroneous. Indeed,
the Court would adopt the Report even on a de nova review, as (I) Petitioner's request for discovery
is founded on little more than speculation, and the Petition certainly does not make "specific
allegations" suggesting he could be entitled to relief if the facts were more fully developed, see

Gonzalez v. United States, No. 12-cv-5226 (JSR), 2013 WL 2350434, at *3 (S.D.N.Y. May 23, 2013);
(2) Petitioner's assertion that his conviction was against the weight of the evidence is not cognizable
in a petition for habeas corpus, see McKinnon v. Superintendent, Great Meadow Corr. Facility, 422
F. App'x 69, 75 (2d Cir. 2011); and (3) even if Petitioner's contentions as to the legal insufficiency
of the evidence were deemed to be exhausted - itself doubtful, as detailed carefully in the Report (see
Report at 23-29)- Petitioner's sufficiency of the evidence claim fails on the merits under the " twicedeferential standard" for reviewing a sufficiency of the evidence claim in habeas proceedings, see

Parker v. Mall hews, 132 S. Ct. 2148, 2152 (2012) ("The evidence is sufficient to support a conviction
whenever, after viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable doubt. And a statecourt decision rejecting a sufficiency challenge may not be overturned on federal habeas unless the
decision was objectively unreasonable." (citations and internal quotation marks omitted)).
Accordingly, the Court adopts the Report in its entirety.
Furthermore, the Court denies Petitioner's request that the Court dismiss the Petition without
prejudice so he may exhaust the insufficiency claim in New York State court before filing a new
habeas petition. Even if Petitioner could exhaust his insufficiency claim at this stage, notwithstanding
the fact that he did not raise the defense of insufficiency at trial or on appeal, and even if a new, post3

exhaustion petition could somehow comply with the one-year statute of limitations applicable to
habeas proceedings, see 28 U.S.C. § 2244(d)(2) - which appears doubtful in light of the fact that
Petitioner' s direct appellate review concluded on January 6, 2014 (Pet. at 3), see Davis v. Mclaughlin,
No. Ol-cv-6673 (NRB), 2001WL1537554, at * I (S.D.N.Y. Nov. 30, 2001) ("The withdrawal of the
petition does not start a new one year limitations period .") - the Court must still deny Petitioner's
request because his legal insufficiency claim is plainly meritless for the reasons set forth in the Report.

See Report at 30- 35 ; Rhines v. Weber, 544 U.S. 269, 277 (2005) (" [E]ven if a petitioner had good
cause for [the] failure [to exhaust], the district court would abuse its discretion if it were to grant him
a stay when his unexhausted claims are plainly meritless."); see also 28 U.S.C. § 2254(b)(2) ("An
application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of
the applicant to exhaust the remedies available in the courts of the State."). Thus, Petitioner' s request
for dismi ssal without prejudice is likewise denied .
CONCLUSION

Accordingly, for the reasons set forth above and in Judge Cott ' s Report, IT IS HEREBY
ORDERED THAT Petitioner' s petition for a writ of habeas corpus and Petitioner's request for the
Court to dismiss his petition without prejudice are each DENIED.

The Clerk of the Court 1s

respectfully directed to terminate the petition pending at Doc. No. 1 and to close this case.
SO ORDE RED .
Dated :

Rlz:E2V~ ~-__..J

May 20, 2015
New York, New York

UN ITED STA TES DISTRICT JUDGE

4

A copy of this Order has been sent to:
Joey Lopez
1OA3558
Auburn Correctional Facility
P.O. Box 618
Auburn, NY I 3024
Joey Lopez
JOA3558
Five Points Correctional Facility
State Route 96, P.O. Box 119
Romulus. NY 14541

5

TO:

Hon. Richard J. Sullivan
United States Courthouse
500 Pearl Street
New York, New York 10007

Dated : April 8, 2015

Dear Sir;
I

am writting to

you

regarding

the current motion

Report and Recommendation of James L. Cott , Magistrate Judge.

before you and
Sir, I

the

am a layman

of the law, with very little understanding of it, I filed this motion because this
was the avenue that the facility offender law clerk informed me must be taken, I
now have been informed that this was an improper course of action.

I was informed

that I did not exhaust all state requirement and remedies available to me.
request that

the motion

I now

be dismissed in the interest of justice to allow me to

proceed to exhaust my state requirements.

Joey Lopez #10-=-- -3558
A
Auburn Correctional Facility
135 State Street
Auburn, NY 13024-9000

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