Banks v. Miller

Filing 34

ORDER ADOPTING REPORT & RECOMMENDATION adopting 19 Report and Recommendations. For the reasons explained above, the Court adopts Judge Parker's Report and Recommendation in full, denies the habeas petition, and declines to issue a Certificate of Appealability. The Clerk of Court is respectfully directed to close the case. (Signed by Judge Ronnie Abrams on 12/21/2018) (mro) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED:
J-1{ I

IJ /

J'

OQUINN BANKS,
Petitioner,
V.

16-CV-7935 (RA)
ORDER ADOPTING REPORT &
RECOMMENDATION

CHRIS MILLER,
Respondent.
RONNIE ABRAMS, United States District Judge:

Uquinn Banks, proceeding prose, is a state prisoner who pleaded guilty to various state
drug offenses in 2012 and was sentenced to twenty years in prison. He now petitions this Court
for federal habeas relief under 28 U.S.C. § 2254. He asserts three grounds for relief: first, that his
sentence was excessively harsh; second, that his guilty plea and subsequent waiver of appeal were
not voluntary, knowing, or intelligent and the trial court improperly denied his motion to withdraw
his plea; and third, that his counsel was ineffective during the plea process. On October 18, 2017,
Magistrate Judge Parker issued a Report and Recommendation that his petition be dismissed in its
entirety. Dkt. 19 at 30. In that Report, Judge Parker recommended that the first two claims be
dismissed as procedurally barred and the third claim for ineffective assistance be denied on the
merits.
Normally, Petitioner would have had seventeen days to object to the Report. See 28 U.S.C.
§ 636(b)(l); Fed. R. Civ. P. 6(a), 6(d), 72(b). Due to some confusion regarding Petitioner's address
(he had changed correctional facilities), however, the Court extended his time to file objections
until January 2, 2018. 0kt. 21. In a letter dated December 25, 2017, which was received by the
Court and filed on January 5, 2018, Petitioner submitted the following objection(s): "I Petitioner
Uquinn Banks object to the conclusion recommends [sic] that the petition be dismissed in its

entirety d[ue] to the fact that all grounds are more evidence in the motions in the motion [sic] to
withdraw the plea[,] the lawyer [who represented Banks in signing the plea] stated he was
ineffective." Dkt. 22.*
"In reviewing a Report and Recommendation, a district court may accept, reject, or modify,
in whole or in part, the findings or recommendations made by the magistrate judge." Alaimo v.
Bd. of Educ. ofthe Tri-Valley Cent. Sch. Dist., 650 F. Supp. 2d 289,291 (S.D.N.Y. 2009) (citation

omitted). "The district court may adopt those portions of a report and recommendation to which
no timely objections have been made, provided no clear error is apparent from the face of the
record." Hancockv. Rivera, No. 09-CV-7233 (CS) (GAY), 2012 WL 3089292, at *1 (S.D.N.Y.
July 30, 2012) (citation omitted). Petitioner's failure to file written objections "to any purported
error or omission in a magistrate judge's report" will cause him to "waive[] further judicial review"
of the magistrate judge's decision on appeal. Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003);
see also Small v. Secretary ofHealth & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam).

When specific objections are made, "the district judge must determine de novo any part of the
magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3); United
States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). When a party "makes conclusory or

general objections, or simply reiterates his original arguments," however, "the Court reviews the
Report and Recommendation only for clear error." Alaimo, 650 F. Supp. 2d at 291.

* In a follow-up letter received by the Court and filed on July 5, 2018, Petitioner stated that his sentence was
"illegal," as the district attorney had informed Banks that he would "only [g]et 4 years" pursuant to an "oral
agreement." Dkt 28. Petitioner did not raise this claim in his habeas petition, however, and the Court will not
consider it. See, e.g., Davis v. Herbert, No. 00 Civ. 6691 (RJS)(DFE), 2008 WL 495316, at *l (S.D.N.Y. Feb. 26,
2008) ("[U]pon review of a habeas petitioner's objections to a magistrate judge's report and recommendation, the
Court may not consider claims raised for the first time in the petitioner's objections-that is, claims not asserted in the
petitioner's original and/or supplemental habeas petitions.").

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Petitioner's objection, even liberally construed, does not challenge Judge Parker's
recommendation dismissing two of the petition's claims as procedurally barred. Thus, so long as
"no clear error is apparent from the face of the record" the Court may adopt those portions of the
Report. Hancock, 2012 WL 3089292, at* 1. The Court finds no clear error in the Report's wellreasoned conclusion that Petitioner's first two grounds for relief are procedurally barred. The
Court therefore adopts those conclusions.
Petitioner's letter can reasonably be interpreted as an objection to the Report's
recommendation with respect to Petitioner's ineffective-assistance claim. Liberally construed,
Petitioner appears to argue that he is entitled to habeas relief on his ineffective-assistance claim
because the lawyer whose conduct is at issue allegedly admitted that he was ineffective. Even
reviewing the matter de nova, this objection does not affect the validity of the Report's thorough
and well-reasoned analysis.
Under Strickland v. Washington, an ineffective-assistance claim can succeed only where a
lawyer's conduct "fell below an objective standard of reasonableness" and "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding would have
been different." 466 U.S. 668,688, 692-94 (1984). To satisfy the second prong of this test in the
plea context, Petitioner must specifically show that "there is a reasonable probability that, but for
counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill
v. Lockhart, 474 U.S. 52, 59 (1985). Furthermore, because Petitioner's ineffective-assistance
claim was considered on the merits by the state court, he must show that the state's decision was
"contrary to, or an unreasonable application of, clearly established" Supreme Court law or that it
was "based on an unreasonable determination of the facts." See 28 U.S.C. § 2254(d). The
Supreme Court has held that a decision is not objectively unreasonable if"fairmindedjurists could
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disagree" about its correctness. Harrington v. Richter, 562 U.S. 86, 101 (2011 ).
Whether Petitioner's counsel admitted his own ineffectiveness might conceivably bear on
whether his representation of Petitioner was objectively unreasonable, but that is not the ground
on which Judge Parker recommended denying the petition here. Rather, the Report concluded that
Petitioner had failed Strickland's second prong, which requires that Petitioner show prejudice from
his counsel's alleged ineffectiveness. And whether his counsel admitted ineffectiveness has no
bearing on whether "there is a reasonable probability that, but for counsel's errors, [Petitioner]
would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59.
For all the reasons identified in the Report, Petitioner's failure to establish prejudice is fatal to his
claim. See Dkt. 19 at 26-30. The Court rejects Petitioner's objection and finds no error, even on
de novo review, in the Report's resolution of his ineffective-assistance claim.

The Court further declines to issue a Certificate of Appealability.

Under 28 U.S.C.

§ 2253(c)(2), a Certificate of Appealability may issue "only if the applicant has made a substantial
showing of the denial of a constitutional right." Accordingly, Petitioner must demonstrate that
any issues on appeal are "debatable" among reasonable jurists or are "adequate to deserve
encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 483-84 (2000) (internal
quotation marks and citation omitted). Petitioner has not made such a showing, and a Certificate
of Appealability is therefore denied. See Flores v. Keane, 211 F. Supp. 2d 426, 446-47 (S.D.N.Y.
2001).
For the reasons explained above, the Court adopts Judge Parker's Report and
Recommendation in full, denies the habeas petition, and declines to issue a Certificate of

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Appealability. The Clerk of Court is respectfully directed to close the case.
SO ORDERED.
Dated:

December 21, 2018
New York, New York
Ronnie Abrams
United States District Judge

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