Herron v. Fields et al

Filing 29

ORDER ADOPTING REPORT AND RECOMMENDATION: for 26 Report and Recommendation. For the reasons discussed above, the Court adopts Judge Freeman's R&R in full and Herron's Petition for a Writ of Habeas Corpus is DENIED. The Court declines to i ssue a certificate of appealability. Petitioner has not made a substantial showing of a denial of a federal right pursuant to 28 U.S.C. § 2253(c), and appellate review is therefore not warranted. Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005). The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-4 5 (1962). The Clerk of Court is respectfully directed to terminate all pending deadlines and motions and close the case. The Clerk is further directed to mail a copy of this Order to Mr. Herron and to note the mailing on the docket. SO ORDERED. (Signed by Judge Valerie E. Caproni on 2/19/2021) (ama) Transmission to Docket Assistant Clerk for processing.

Case 1:17-cv-07221-VEC-DCF Document 29 Filed 02/19/21 Page 1 of 8
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
UNITED STATES DISTRICT COURT
DATE FILED: 2/19/2021
SOUTHERN DISTRICT OF NEW YORK
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:
SHELDON HERRON,
:
Petitioner,
:
:
-against:
:
:
LEROY FIELDS, et al.,
:
Respondents.
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:
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17-CV-7221 (VEC)
ORDER ADOPTING
REPORT AND
RECOMMENDATION

VALERIE CAPRONI, United States District Judge:
On October 4, 2017, Petitioner Sheldon Herron filed this Petition for a Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2254, pro se, challenging his conviction in New York State
Supreme Court for assault in the second degree and resisting arrest and his sentence of five years
followed by five years of supervised release. Petition, Dkt. 2. On January 10, 2018, this Court
ordered the Respondents to answer the Petition and referred the action to Magistrate Judge
Freeman for the preparation of a report and recommendation (“R&R”) pursuant to 28 U.S.C. §
636(b). Dkts. 9, 10. On January 7, 2021, Judge Freeman issued a report and recommendation,
recommending that the Petition be denied. R&R, Dkt. 26. On January 21, 2021, Petitioner filed
objections to the R&R.1 Pl. Objections, Dkt. 27.2 For the following reasons, the Court ADOPTS
the R&R in full, and the Petition is DENIED.
The Court mailed the R&R to Herron on January 13, 2021. In the R&R, Judge Freeman notified the parties
that, pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), they had 14 days to file written objections to the
R&R’s findings or 17 days if service was made by mail. R&R, Dkt. 26, at 39. Accordingly, Herron had until
January 30, 2021 to file objections to the R&R. In his objections, Herron reports that he received an email
notification on January 7, 2021 that the Report and Recommendation had been filed, but that he only received the
R&R by mail on January 16, 2021. Pl. Objections, Dkt. 27 at 6. Herron argues that it “is not fair by any standard”
that he had only until January 21, 2021 to file his objections. Id. at 6–7. Though it is unfortunate that Herron
miscalculated the deadline by which he had to file any objections, the Court finds that he was not prejudiced in any
way. The R&R clearly states that “requests for an extension of time for filing objections” could be directed to the
undersigned. R&R at 39. Herron could have, but did not, request an extension.
1

The filing at docket entry 27 is the full version of Herron’s objections. Part of that filing is duplicated in
the filing at docket entry 28. Because the filing at docket entry 27 includes Herron’s full objections, the Court only
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BACKGROUND
Herron was arrested on October 4, 2013 as part of an NYPD drug “buy and bust”
operation in the West Village of Manhattan. R&R at 3. At trial, NYPD Detective Christopher
Baumgardt testified that he approached Herron because he matched the description of an
individual involved in a sale of narcotics to an undercover officer.3 Id. at 6. Baumgardt testified
that he shouted “police” and tried to stop Herron but that Herron struck him and ran in the
opposite direction. Id. at 6–7. The detective further testified that once he caught up to Herron,
another scuffle ensued; he was only able to make the arrest once other officers arrived to help.
Id. at 7. No prerecorded buy money,4 narcotics, or drug-related paraphernalia were found on
Herron. Id.
Baumgardt further testified that two fingers on his right hand were injured as a result of
his altercation with Herron, although he could not remember exactly when the injury occurred.
Id. at 8. Other officers testified that Baumgardt complained of pain at the precinct later that
evening. Id. At around 11:30 P.M., Baumgardt went to the hospital for an x-ray, which did not
show any fracture or dislocation, and a splint was applied. Id. Baumgardt testified that the pain
lasted a week to a week and a half, he missed seven days of work because of the injury, and he
was placed on limited duty for two to three weeks upon his return. Id. at 9.
Herron was tried by a jury on three charges: criminal sale of a controlled substance,
assault in the second degree, and resisting arrest. Id. at 2–3. The jury acquitted him on the drug

references this docket entry. Additionally, the pages of this filing are not numbered. Any citations to particular
pages in this Opinion refer to the page numbers of the pdf file itself.
Detective Baumgardt testified that an undercover officer, known as UC17, transmitted over the radio that as
part of the transaction at issue, the seller had walked over to a black man who was “wearing a black baseball hat,
yellow T-shirt, and blue jeans.” R&R at 6 (citing the trial record). Baumgardt testified that he approached Herron
because he matched that description. Id.
3

Before a “buy and bust” operation, NYPD photocopies the bills they plan to use to purchase drugs. This
enables law enforcement to match the serial numbers of money found on suspects with money used by the officers
in the drug purchase. The NYPD refers to these funds as “prerecorded buy money.” R&R at 4, n.4.
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charge but convicted him of assault and resisting arrest. Id. at 11. On appeal, the First
Department of the New York Appellate Division unanimously affirmed his conviction and
sentence. Id. at 14 (citing People v. Herron, 51 N.Y.S.3d 398 (1st Dep’t 2017)). The Court of
Appeals denied leave to appeal. Id. at 15 (citing People v. Herron, 29 N.Y.3d 1092 (2017)).
In his Petition for a Writ of Habeas Corpus, Herron claims that: (1) the evidence
presented at trial was legally insufficient to support the verdict on the assault charge because the
prosecution failed to present objective evidence that corroborated Detective Baumgardt’s
testimony regarding his physical injury and that proved beyond a reasonable doubt that Petitioner
had caused the injury; (2) his acquittal on the drug charge made any evidence that could have
supported his conviction on the assault and resisting arrest charges legally insufficient to support
the verdict; and (3) the trial judge gave an improper jury instruction on the element of causation
for the assault charge.
LEGAL STANDARD
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.” 28
U.S.C. § 636(b)(1). 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-CV-5810, 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009)
(citation omitted); see also Wilds v. United Parcel Serv. Inc., 262 F. Supp. 2d 163, 169
(S.D.N.Y. 2003).
When specific objections are made to the R&R, “[t]he 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). But such
objections “may not simply regurgitate the original briefs to the magistrate judge.” Hernandez v.
City of New York, No. 11-CV-6644, 2015 WL 321830, at *2 (S.D.N.Y. Jan. 23, 2015) (internal
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citation omitted). To the extent the party “simply reiterates the original arguments, the Court
will review the [R&R] strictly for clear error.” IndyMac Bank, F.S.B. v. Nat’l Settlement Agency,
Inc., No. 07-CV-6865, 2008 WL 4810043, at *1 (S.D.N.Y. Nov. 3, 2008); see also O’Callaghan
v. New York Stock Exch., No. 12-CV-7247, 2013 WL 3984887, at *1 (S.D.N.Y. Aug. 2, 2013)
(collecting cases).
An error is clear when the reviewing court is left with a “definite and firm conviction that
a mistake has been committed.” See Cosme v. Henderson, 287 F.3d 152, 158 (2d Cir. 2002)
(quoting McAllister v. United States, 348 U.S. 19, 20 (1954)).
DISCUSSION
A careful review of Herron’s objections reveals that they are all reiterations of arguments
Herron previously made in this litigation and were properly considered by Judge Freeman.5
Accordingly, the Court reviews the R&R for clear error. Finding no clear error, the Court adopts
the R&R in full and denies the Petition.
Herron first argues that the evidence presented at trial was legally insufficient to support
the verdict on the assault charge because the prosecution failed to present objective evidence to
corroborate the existence of Detective Baumgardt’s physical injury and to prove beyond a
reasonable doubt that Petitioner caused the injury. Judge Freeman was correct to conclude that
Herron had exhausted all state judicial remedies for this claim, as he raised these arguments in
constitutional terms before both the Appellate Division and in his application for leave to appeal
to the New York Court of Appeals. R&R at 22. On the merits, Judge Freeman applied the
correct legal standard, examining whether, viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the elements of the crime to have been

In his objections, Herron notes that many of his arguments are “as in the petitioner’s Memorandum of
Law,” demonstrating that he too recognizes that his objections simply repeat arguments previously made to the
Magistrate Judge. Pl. Objections at 1, 3.
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proven beyond a reasonable doubt. Id. at 23–24 (citing Jackson v. Virginia, 443 U.S. 307, 319
(1979)). With respect to the existence of the injury, Judge Freeman evaluated the evidence
offered at trial, including Baumgardt’s testimony, the hospital records, and the testimony from
two other NYPD officers who testified that Baumgardt’s hand appeared swollen and that he
complained of pain following Herron’s arrest. R&R at 25 (citing the trial record). Applying the
correct legal standard, Judge Freeman properly concluded that this evidence was sufficient for a
rational finder of fact to have found, beyond a reasonable doubt, that Baumgardt suffered the
physical injury in question. With respect to causation, even though Baumgardt testified that he
did not know the precise moment that he was injured, Judge Freeman was correct to conclude
that, in light of all of the trial testimony, it was reasonable for the jury to find that Baumgardt
was injured as a result of Petitioner’s actions during the course of the arrest. Id. at 26–27.
Accordingly, the Court agrees with Judge Freeman that the Petitioner had not demonstrated that
the Appellate Division’s decision to reject this claim was an unreasonable application of federal
law. The Court thereby denies this claim for lack of merit.
Herron next argues that his acquittal on the drug charge made any evidence that could
have supported his conviction for assault and resisting arrest legally insufficient. Here too Judge
Freeman was correct to conclude that the Appellate Division reasonably applied clearly
established federal law. As the Appellate Division and Judge Freeman reasoned, Petitioner’s
argument ignores the difference between the burdens of proof to convict, which requires proof
beyond a reasonable doubt, and to arrest, which requires only probable cause. Id. at 31. Because
probable cause is a lower threshold than proof beyond a reasonable doubt, it was reasonable for
the jury to find that there was probable cause to arrest Herron for the drug offense but that the
evidence was not sufficient to prove, beyond a reasonable doubt, that Herron was involved in the
drug transaction. Id. at 32. Accordingly, the Court agrees with Judge Freeman that the state

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court did not misapply federal law in coming to this conclusion and that this claim must be
denied.
Herron further argues that the trial judge gave an improper jury instruction on the element
of causation for the charge of assault in the second degree. In his Petition, Herron argues that the
jury instruction was impermissibly confusing, incorrectly appended two separate statements into
one sentence, and unlawfully shifted the burden of proof on malice. R&R at 35–36; Pet. Reply,
Dkt. 22 at 15. On his first point, that the jury instruction was confusing, Judge Freeman
correctly concluded that Herron had exhausted this claim in state court. Id. at 36–37. She also
applied the correct legal standard to evaluate this claim: to present a Constitutional problem, the
challenged instruction must “by itself so infect[] the entire trial that the resulting conviction
violates due process.” Id. at 37 (citing Cupp v. Naughten, 414 U.S. 141, 147 (1973)). The Court
agrees that Herron has not demonstrated that the instruction itself was erroneous, much less that
it was so erroneous that it so infected the trial that Herron’s due process rights were violated.
Accordingly, this claim is denied.
Herron further argues that the jury instruction incorrectly appended two sentences
together that should have remained separate.6 Judge Freeman was correct to find that even upon
a generous read of Petitioner’s appellate briefs, these claims were not exhausted before the New
York courts. R&R at 36. The Court further agrees with Judge Freeman, albeit for slightly
different reasons, that Herron would not be entitled to relief on this claim even if had been
properly exhausted in state court. Id. (citing 28 U.S.C. § 2254(b)). In his reply memorandum of
law, Herron asserted that the jury instruction included the following: “In other words, when the
conduct sets in motion or continued in motion the events which ultimately resulted in such

Herron also asserts that the jury instruction on causation improperly shifted the burden of proof on malice
to the defendant. A review of the full jury instruction on causation reveals that malice was not referenced in any
way; accordingly, the instruction on malice could not have impermissibly shifted the burden of proof away from the
prosecution. See Trial Tr. at ECF 991.
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injury, an obscure or merely probable connection between the conduct and the injury will not
suffice.” Pet. Reply at 12; see also Trial Tr., Dkt. 19-3 at ECF 991. He argues that this was
incorrect, as the instruction should have been separated in the following way: “In other words,
when the conduct set in motion or continued in motion the events which ultimately resulted in
such injury. An obscure or merely probable connection between the conduct and the injury will
not suffice.” Pet. Reply at 13. Herron is correct that New York’s Criminal Jury Instructions
separate this thought into two distinct “sentences.” See N.Y. Crim. Jury. Instr. 2d Penal Law §
120.05, available at https://www.nycourts.gov/judges/cji/2-PenalLaw/120/AC.120.Causation.pdf.
There was, however, no error in combining the thoughts into a single sentence. First, the pattern
instruction on which Herron relies is grammatically incorrect: the first “sentence” is not, in fact, a
sentence. It has a dependent clause (“when the conduct set in motion or continued in motion the

events which ultimately resulted in such injury”) and a prepositional phrase (“in other words”),
but it lacks a subject and a predicate. By attaching the dependent clause to the subject and
predicate (“an obscure or merely probable connection between the conduct and the injury will
not suffice”), the trial court corrected the grammatical error; the resulting sentence is (a)
grammatically correct and (b) not at all confusing. In short, Herron has not demonstrated that the
instruction was confusing or erroneous, much less that it was so erroneous that it so infected the
trial as to violate Herron’s due process rights. The Court therefore agrees with Judge Freeman
and denies this claim.
CONCLUSION
For the reasons discussed above, the Court adopts Judge Freeman’s R&R in full and
Herron’s Petition for a Writ of Habeas Corpus is DENIED.
The Court declines to issue a certificate of appealability. Petitioner has not made a
substantial showing of a denial of a federal right pursuant to 28 U.S.C. § 2253(c), and appellate
review is therefore not warranted. Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005).
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The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an
appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
The Clerk of Court is respectfully directed to terminate all pending deadlines and motions
and close the case. The Clerk is further directed to mail a copy of this Order to Mr. Herron and
to note the mailing on the docket.

SO ORDERED.
_________________________________
VALERIE CAPRONI
United States District Judge

Date: February 19, 2021
New York, NY

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