Martinez v. Lee
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 47 Motion to Dismiss filed by William A. Lee, 46 Motion to Dismiss filed by William A. Lee, 51 Report and Recommendations. For these reasons, the Court adopts Magistrate Judge Davison's R & R in its entirety. The Respondent's motion to dismiss the petition for a Writ of Habeas Corpus is therefore DENIED. The Clerk of Court is directed to terminate the motion(s) at ECF No. 46 and 47. If Respondent has not done so, Respondent is directed to file an answer to the petition within 30 days of this Order. (Signed by Judge Nelson Stephen Roman on 3/5/2018) (js)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
:. DATE FILED:
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10-CV-9019 (NSR) (PED)
-againstSUPERINTENTDENT WILLIAM A. LEE,
Commissioner NYS Depm1ment of Col'l'ections,
ORDER ADOPTING REPORT
NELSONS. ROMAN, United States District Judge:
Juan Martinez ("Petitioner"), proceeding pro se, seeks a writ of habeas co1pus under 28
U.S.C. § 2254. Following a jury trial in state court, Petitioner was found guilty of multiple felony
criminal counts. As a result of his convictions, Petitioner was sentenced to a term of 28.5 years
(minimum) to life imprisonment. Petitioner filed the instant petition challenging his conviction on
multiple grounds. (See ECF Nos. I, 2.) Respondent moved to dismiss the petition. (See ECF Nos.
46, 47.) Now pending before the Court is a Report and Recommendation ("R & R") issued by
Magistrate Judge Paul E. Davison ("MJ Davison"), pursuant to 28 U.S.C. § 636(b) and Federal
Rule of Civil Procedttre 72(b ), recommending that Respondent's motion to dismiss be denied.
(See ECF No. 51.) Neither party filed an objection to the R & R. For the following reasons, the
Court finds no clear error and adopts the R & R; the motion to dismiss the petition is DENIED.
The Comt presumes the paities' familiarity with the factual and procedural background of
this case, including that related to the underlying criminal proceedings and Petitioner's appellate
challenges to his conviction. Further details can be found in the R & R, which this Court adopts.·
Petitioner was convicted following a jury trial in Westchester County (Zambelli, J.) of
murder in the second degree, gang assault in the first degree, criminal possession of a weapon in
the second degree, reckless endangerment in the second degree, attempted assault in the second
degree, and criminal possession of a weapon in the third degree. Petitioner's convictions stem
from two related incidents. The first incident involved the Petitioner chasing a victim, Kashawn
Philips ("Phillips"), with a machete, for which Petitioner was convicted of attempted assault and
criminal possession of a weapon (the "Machete Incident"). The second incident involved the
shooting and subsequent death of Phillips later in the evening (the "Homicide Incident").
Petitioner timely filed the instant petition for a Writ of Habeas Corpus on or about
November 17, 2010. (See ECF Nos. I, 2.) He seeks habeas relief on six grounds: (I) legal
sufficiency of the evidence; (2) prosecutorial misconduct; (3) violation of due process rights; (4)
an unduly suggestive identification; (5) trial court error "in refusing to call a necessary witness for
the Petitioner's defense; and (6) ineffective assistance of counsel. (Id.) Petitioner exhausted his
appellate remedies in state court.
After the filing of the instant petition, the matter was stayed to allow Petitioner an
opp01tunity to file a motion, pursuant to N.Y. Crim. P.L. § 440. IO, to vacate his conviction. By
Order dated November 2, 2017 (the "November Order"), the state trial court, Zambelli, J., granted
Petitioner's motion to the extent it vacated the convictions for murder, gang assault, criminal
possession of a weapon and reckless endangerment, as they related to the Homicide Incident. (See
ECF No. 47, Ex. I.) In the R&R, MJ Davison noted that in light of the state comt's vacatur of
these charges, any and all claims raised in the petition related to the Homicide Incident charges
were now moot. The R&R further recommended, however, that Petitioner be entitled to proceed
with his petition to the extent he seeks to asse1t claims related to the Machete Incident, for which
his convictions were not vacated. A review of the petition reveals that Petitioner does indeed seek
to challenge, inter alia, the legal sufficiency of his conviction concerning the Machete Incident.
Accordingly, such claims are not rendered moot by viitue of state trial comt's November Order.
Respondent's motion is ripe for denial.
STANDARD OF REVIEW
A. Habeas Petition Reviewing a State Court Decision
"Habeas review is an extraordinary remedy." Bousley v. United States, 523 U.S. 614,621
(1998). When a claim has been adjudicated on the merits in a state court proceeding, a prisoner
seeking habeas relief must establish that the state court's decision "was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Comt
of the United States" or "was based on an unreasonable determination of the facts in light of the
evidence presented in the State comt proceeding." 28 U.S.C. § 2254(d)(l), (d)(2); Cousin v.
Benne/I, 511 F.3d 334, 337 (2d Cir. 2008). A state court's findings of fact are presumed correct
the presumption with
clear and convincing evidence.
28 U.S.C. § 2254(e)(l); see also Nelson v. Walker, 121 F.3d 828,833 (2d Cir. 1997).
B. Magistrate Judge's Report and Recommendation
A magistrate judge may "hear a pretrial matter [that is] dispositive of a claim or defense"
ifso designated by a district comt. Fed. R. Civ. P. 72(b)(l); accord28 U.S.C. § 636(b)(l)(B). In
such a case, the magistrate judge "must enter a recommended disposition, including, if appropriate,
proposed findings of fact." Fed. R. Civ. P. 72(b)(l); accord 28 U.S.C. § 636(b)(l). Upon a
magistrate judge's issuance of a report and recommendation, and
[w]ithin fourteen days after being served with a copy, any party may serve and file
written objections to such proposed findings and recommendations as provided by
rules of court. A judge of the court shall make a de novo determination of those
portions of the repmt or specified proposed findings or recommendations to which
objection is made. A judge of the 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); accord Fed. R. Civ. P. 72(b)(2), (3). Nevertheless, '"[t]o accept the report and
recommendation of a magistrate, to which no limely objeclion J1as been made, a district court need
only satisfy itself that there is no clear error on the face of the record.'" Wilds v. United Parcel
Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003) (emphasis added) (quoting Nelson v. Smith,
618 F.Supp. 1186, 1189 (S.D,N.Y. 1985); accord Feehan v. Feehan, No. 09CV7016 (DAB), 2011
WL 497776, at *I (S.D.N.Y. Feb. 10, 2011); see also Fed. R. Civ. P. 72 advisoty committee note
(1983 Addition, Subdivision (b)) ("When no timely objection is filed, the court need only satisfy
itself that there is no clear error on the face of the record in order to accept the recommendation.").
Here, the R & R was issued on February 15, 2018 and the deadline for filing objections
was March 5, 2018.
Neither party filed an objection; the Court reviews Magistrate Judge
Davison's R & R for clear error and finds none. Accordingly, the Cou1t adopts the findings and
conclusions reached therein.
For these reasons, the Court adopts Magistrate Judge Davison's R & R in its entirety. The
Respondent's motion to dismiss the petition for a Writ of Habeas Corpus is therefore DENIED.
The Clerk of Court is directed to terminate the motion(s) at ECF No. 46 and 47. If Respondent
has not done so, Respondent is directed
to file an answer to the petition within 30 days of this
March 5, 2018
White Plains, New York
United States District Judge
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