Scott v. Graham
Filing
42
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION 39 Report and Recommendations. For the foregoing reasons, the Court adopts Magistrate Judge Cott's thoughtful and comprehensive Report in full. Accordingly, it is hereby ordered that P etitioner's petition for a writ of habeas corpus is DENIED. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. The Court further certifies, pursuant to 28 U.S.C. § 1915(a) (3), that any appeal from this Opinion and Order would not be taken in good faith; therefore, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge Katherine Polk Failla on 10/22/2018) Copies Mailed By Chambers. (rro) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------------------------------------------- X
:
ANDRE SCOTT,
:
:
Petitioner,
:
:
v.
:
:
HAROLD D. GRAHAM, SUPERINTENDENT
:
OF AUBURN C.F.,
:
:
Respondent.
:
:
------------------------------------------------------- X
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: October 22, 2018
______________
16 Civ. 2372 (KPF) (JLC)
OPINION AND ORDER
ADOPTING REPORT AND
RECOMMENDATION
KATHERINE POLK FAILLA, District Judge:
Pending before the Court is the June 29, 2017 Report and
Recommendation of United States Magistrate Judge James L. Cott (the
“Report” (Dkt. #39)), recommending that Petitioner Andre Scott’s petition for
habeas corpus relief under 28 U.S.C. § 2254 (the “Petition” (Dkt. #1)) be denied
in its entirety. The Court has reviewed both the Report and Petitioner’s
July 10, 2017 Objection to that Report (the “Objection” (Dkt. #40)), and finds
that the Report should be adopted in full. Accordingly, the Petition is denied.
BACKGROUND
This summary draws its facts from the detailed recitation in Judge Cott’s
Report. (Report 1-13). On December 1, 2009, Petitioner was indicted by a
grand jury for rape, sexual abuse, and assault arising from two alleged
altercations with his girlfriend earlier that year. (Id. at 6). In the first, alleged
to have occurred on August 22, 2009, Petitioner raped his girlfriend after
pushing her down onto a bed and choking her. (Id. at 3). In the second,
alleged to have occurred on October 29, 2009, Petitioner repeatedly punched,
kicked, and hit his girlfriend because she had not called him “all day” and “was
ignoring his calls.” (Id. at 4). On April 14, 2011, after being convicted by a jury
of all charges, Petitioner was sentenced to 20 years of incarceration followed by
10 years of post-release supervision. (Id. at 7-8).
Petitioner appealed to the Appellate Division, which affirmed the
convictions on March 31, 2015. See People v. Scott, 126 A.D.3d 645 (1st Dep’t
2015). On June 15, 2015, the Court of Appeals denied leave to appeal. See
People v. Scott, 24 N.Y.3d 1171 (2015).
The Petition in this case raises five grounds for relief that echo
Petitioner’s arguments to the First Department: (i) the prosecution suppressed
exculpatory footage during Petitioner’s trial, thereby violating his due process
rights; (ii) the trial court violated Petitioner’s right to present a defense by
excluding from evidence a controlled call from the victim to Petitioner; (iii) the
verdict was against the weight of the evidence; (iv) the aggravated harassment
statute under which Petitioner was convicted had been held to be
unconstitutional; and (v) Petitioner’s sentence should be reduced because it
involved a substantial trial penalty and was not consonant with mitigating
facts. (Report 11-12). The Report found each of these bases to be insufficient.
(Id. at 20-58). Specifically, Judge Cott found Petitioner’s second and fourth
claims to be procedurally barred, thereby agreeing with the First Department’s
determination that Petitioner had failed to comply with New York’s
2
contemporaneous objection rule. (Id. at 20-36). He then found that
Petitioner’s first claim and a portion of his fifth claim, while both exhausted,
were not meritorious. (Id. at 37-47). Finally, Judge Cott found that Petitioner’s
third claim, as well as certain of his sentencing challenges, were not cognizable
on habeas review. (Id. at 47-58).
On July 17, 2017, Petitioner timely filed his Objection to the Report.
(Dkt. #40). While the Objection is not a model of clarity, the Court construes
Petitioner’s argument as follows: Because Petitioner and the victim engaged in
a consensual sexual relationship prior to, and after, the August 22, 2009
incident, the sexual encounter on that date was consensual as well.
DISCUSSION
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) (quoting Fed. R. Civ. P. 72(b)); see also 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
3
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 reviewing 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 and citation
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 quotation marks and citation omitted).
Because Petitioner’s Objection is both conclusory and general, this Court
has reviewed the Report for clear error. The Court finds that the Report’s
reasoning — which is set forth in commendable detail over nearly 28 of the
Report’s 59 pages — is sound and grounded in fact and law. Accordingly, the
Court finds no clear error and adopts the Report in its entirety.
CONCLUSION
For the foregoing reasons, the Court adopts Magistrate Judge Cott’s
thoughtful and comprehensive Report in full. Accordingly, it is hereby ordered
that Petitioner’s petition for a writ of habeas corpus is DENIED. The Clerk of
4
Court is directed to terminate all pending motions, adjourn all remaining dates,
and close this case.
The Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any
appeal from this Opinion and Order would not be taken in good faith; therefore,
in forma pauperis status is denied for purposes of an appeal. See Coppedge v.
United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated:
October 22, 2018
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
Copies of this Order and the Report Were Sent by First Class Mail to:
Andre Scott
11-A-1841
Auburn Correctional Facility
P.O. Box 618
Auburn, NY 13024
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?