Stone v. Annucci et al

Filing 24

ORDER ADOPTING REPORT AND RECOMMENDATION: for 23 Report and Recommendation. With no clear error in any of Judge Parker's analysis or conclusions, the Court adopts the R&R in full. Because the R&R gave the parties adequate warning, see R&R at 25, Stone's failure to file any objections to the R&R precludes appellate review of this decision. See Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) ("Where parties receive clear notice of the consequences, failure time ly to object to a magistrate's report and recommendation operates as a waiver of further judicial review of the magistrate's decision."). Because appellate review is precluded, the 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, therefore, permission to proceed in formapauperis for purposes of appeal is denied. The Clerk of Court is respectfully directed to terminate all pending deadlines and motions an d close the case. The Clerk of Court is further directed to mail a copy of this Order to Mr. Stone and note the mailing on the docket. And as set forth herein. SO ORDERED. (Signed by Judge Valerie E. Caproni on 11/05/2020) (ama) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
JOHN STONE,
:
:
Petitioner, :
:
-against:
:
THOMAS GRIFFIN, Superintendent,
:
:
Respondent. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 11/05/2020

17-CV-8741 (VEC)
ORDER ADOPTING
REPORT AND
RECOMMENDATION

VALERIE CAPRONI, United States District Judge:
On November 9, 2017, Petitioner John Stone 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 of first-degree assault and his sentence of twenty-two years followed by five
years of supervised release. Petition, Dkt. 1. On January 10, 2018, this Court ordered the
Respondent to answer the Petition and referred the action to Magistrate Judge Parker for the
preparation of a report and recommendation (“R&R”) pursuant to 28 U.S.C. § 636(b). Dkts. 6,
7. On August 29, 2020, Judge Parker issued a report and recommendation, recommending that
the Petition be denied. R&R, Dkt. 23.
In the R&R, Judge Parker 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. 23, at 25. Judge Parker further noted that failure
to file objections would result in both the waiver of objections and the preclusion of appellate
review. Id. (using bold font). On August 31, 2020, the R&R was mailed to the Petitioner and
emailed to the Respondent. No objections were filed. For the following reasons, the Court
ADOPTS the R&R in full, and the Petition is DENIED.

BACKGROUND
On February 10, 2010, Lance Smallwood was with Rhonda McClanahan-Stone, Stone’s
estranged wife, when Smallwood was stabbed a number of times from behind by an individual
he recognized as Stone. Mar. 26-28, 2012 Tr., Dkt. 18-16, at 608:14-16, 611:23-613:11, 619:513, 622:5-20, 625:18-25. The incident was initially investigated by Detective McCrosson, who
spoke to both Mr. Smallwood and Ms. McClanahan-Stone. Mar. 27-29, 2012 Tr., Dkt. 18-17, at
819:16-8:20:20, 826:15-827:6. After these conversations, Detective McCrosson identified Stone
as a suspect. Id. at 820:2-5, 826:15-826:6. Ms. McClanahan-Stone did not appear to testify at
trial, despite efforts by the detectives to locate her. Id. at 791:8-9; Mar. 26-28, 2012 Tr., Dkt. 1816, at 757:6-23. The prosecution instead put Detective McCrosson on the stand. He testified
that after speaking with Ms. McClanahan-Stone, he “did several computer checks on the person
that had been indicated as a suspect.” Mar. 27-29, 2012 Tr., Dkt. 18-17,at 819:21-820:5. Stone
objected and moved for a mistrial, claiming that Detective McCrosson was essentially testifying
that Ms. McClanahan-Stone had told him that Stone was the assailant, which would be
inadmissible hearsay. Id. at 822:11-823:4. The trial court denied the motion, id. at 823:5824:12, but gave a limiting instruction, directing the jury to disregard the testimony from the
detective that he had spoken to Ms. McClanahan-Stone. Id. at 825:24-826:3, 920:20-25.
Following the jury’s verdict, Stone moved to set aside the verdict based on an affidavit by
his then-fiancé, in which she swore that she saw Mr. Smallwood interact with the jurors after the
verdict in a way that implied he had a prior relationship with one of them. Anderson Aff., Dkt.
18-9 ¶ 4. Mr. Smallwood filed his own affidavit claiming he did not know any of the jurors; his
affidavit explained the interaction observed by Stone’s fiancé as him simply thanking the jurors
for making what he felt was the right decision. Smallwood Aff., Dkt. 18-10, Ex. 1, ¶¶ 4, 7. The

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trial judge denied the motion without a hearing, finding that Stone’s assertions did not give any
rise to bias that would warrant vacating the verdict. Decision and Order, Dkt. 18-11 at 3. Stone
unsuccessfully appealed his conviction to the Appellate Division and to the New York Court of
Appeals. See People v. Stone, 121 A.D.3d 617 (1st Dep’t 2014), aff’d, 29 N.Y.3d 166 (2017).
In his Petition for a Writ of Habeas Corpus, Stone claims that: (1) his rights were violated
under the Constitution’s Confrontation Clause when the trial court did not declare a mistrial
following Detective McCrosson’s impermissible testimony; (2) the trial court was wrong to deny
his post-conviction motion for a hearing on alleged juror misconduct; and (3) that the weight of
the evidence was insufficient to support a conviction and that the prosecution failed to prove the
case beyond a reasonable doubt. Petition, Dkt. 1.
DISCUSSION
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). When, as here, no party objects to the magistrate judge’s report and
recommendation, the court may accept the report and recommendation provided that “there is no
clear error on the face of the record.” Heredia v. Doe, 473 F. Supp. 2d 462, 463 (S.D.N.Y. 2007)
(quoting Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)); see also Fed. R. Civ. P.
72(b) advisory committee’s note. 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)).
Careful review of the R&R reveals that there is no clear error, and the Court agrees with
the recommendation that the Petition be denied. First, with respect to Stone’s Confrontation
Clause claim, Judge Parker applied the correct legal standard looking to whether the state court

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unreasonably applied clearly established federal law. See R&R, Dkt. 23 at 9, 12 (citing 28
U.S.C. § 2245(d)(1)-(2)). Judge Parker correctly concluded that the state court was not
unreasonable when it found the jury instructions cured any potential prejudice to Stone, negating
any constitutional error that might have occurred. Id. at 15. Second, with respect to the juror
misconduct claim, Judge Parker was correct to find that this cannot be a basis for habeas corpus
relief “because federal law does not require states to provide a post-conviction mechanism for
seeking relief.” Id. at 18 (quoting Word v. Lord, 648 F.3d 129, 132 (2d Cir. 2011)). Judge
Parker was further correct to conclude that even if this claim were construed as one pursuant to
the Sixth Amendment’s right to an impartial jury, the state court’s determination that Stone had
not adequately made a showing of juror misconduct to warrant a hearing was not an abuse of
discretion and that there was otherwise not a sufficient predicate to raise the specter of a
constitutional violation. Id. at 21.
Finally, Judge Parker was correct to find that Stone’s claims that there was insufficient
evidence to support his conviction and that guilt had not been proved beyond a reasonable doubt
were not exhausted before the state courts and therefore cannot be a basis for habeas relief absent
a demonstration of “cause” and “prejudice” or a showing of actual innocence. Id. at 21–23.
Stone made no effort to show cause or prejudice. As to actual innocence, as Judge Parker noted,
when reviewing Stone’s case on direct appeal, the New York Court of Appeals observed, albeit
in its harmless error analysis, that Stone had been identified at trial by the victim, who knew him
and who testified he was sure of his identification. Id. at 23 (citing Stone, 29 N.Y.3d at 171).
Under those circumstances, even if Stone had attempted to excuse his procedural default by
arguing actual innocence, his claim would not have merit. Id. at 23–24.

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With no clear error in any of Judge Parker’s analysis or conclusions, the Court adopts the
R&R in full. Because the R&R gave the parties adequate warning, see R&R at 25, Stone’s
failure to file any objections to the R&R precludes appellate review of this decision. See Mario
v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Where parties receive clear notice
of the consequences, failure timely to object to a magistrate’s report and recommendation
operates as a waiver of further judicial review of the magistrate's decision.”). Because appellate
review is precluded, the 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, therefore, permission to proceed in forma
pauperis for purposes of appeal is denied.
The Clerk of Court is respectfully directed to terminate all pending deadlines and motions
and close the case. The Clerk of Court is further directed to mail a copy of this Order to Mr.
Stone and note the mailing on the docket.

SO ORDERED.
_________________________________
VALERIE CAPRONI
United States District Judge

Date: November 5, 2020
New York, NY

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