Small v. Diforieo

Filing 82

ORDER ADOPTING REPORT AND RECOMMENDATION: for 76 Report and Recommendations. The Court, having conducted a thorough review of the remainder of the R&R, finds no error, clear or otherwise. The Court therefore adopts Judge McCarthy's R&R. P etitioner's writ of habeas corpus is accordingly dismissed with prejudice. As Petitioner has not made a substantial showing of the denial of a constitutional right, a Certificate of Appealability shall not be issued, see 28 U.S.C. § 2253(c )(2); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 111-12 (2d Cir. 2000), and the Court further certifies, pursuant to 28 U.S.C. § I 915(a)(3), that an appeal from this judgment on the merits would not be taken in good faith, see Copp edge v. United States, 369 U.S. 438, 445 (1962) ("We consider a defendant's good faith... demonstrated when he seeks appellate review of any issue not frivolous."); Burda Media Inc. v. Blumenberg, 731 F. Supp. 2d 321, 322-23 (S.D.N. Y. 2010) (citing Coppedge and noting that an appeal may not be taken in forma pauperis if the trial court certifies in writing that it is not taken in good faith). The Clerk of the Court is respectfully directed to enter judgment in favor of Respondent, send a copy of this Order to Petitioner at the address listed on the docket, close the case, and as further set forth in this order. (Signed by Judge Kenneth M. Karas on 9/28/2017) (ap)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ARTHUR A. SMALL,
Petitioner,
No. 12-CV-5583 (KMK) (JCM)

v.
PAUL CHAPPIUS, Superintendent,
Elmira Correctional Facility,

ORDER ADOPTING REPORT &
RECOMMENDATION

Respondent. 1

KENNETH M. KARAS, District Judge:
On July 13, 2012, Arthur A. Small ("Petitioner"), proceeding prose, filed a petition for a
writ of habeas corpus pursuant to 28. U.S.C. § 2254, challenging his conviction for assault in the
second degree and criminal possession of a weapon in the third degree (the "Petition"). (See Pet.
for Writ of Habeas Corpus (Dkt. No. 1).) In a Report and Recommendation ("R&R") dated
September 8, 2016, Magistrate Judge Judith C. McCarthy ("Judge McCarthy") recommended
that the Petition be denied. (See Report & Recommendation (''R&R") (Dkt. No. 76).) 2 On
September 20, 2016, Respondent filed objections to the R&R. (See Objs. to R&R ("Resp't's
Objs.") (Dkt. No. 77).) Petitioner filed his objections to the R&R in documents dated September
21, 2016, (see Pet'r's Qbjs. to R&R ("Pet'r's Objs. I") (Dkt. No. 78); Pet'r's Additional Objs. to

1

As noted in the Report & Recommendation, in naming Janet DiForieo as Respondent,
"the Court presumes Petitioner means Janet OiFiore, the former Westchester County District
Attorney." (R&R I n. l .) The proper Respondent in this Action is Paul Chappius, the
Superintendent of Elmira Correctional Facility where Petitioner is currently incarcerated. The
Court will treat the Action as properly asserted against Respondent Chappius.
2

This case was originally referred to Magistrate Judge George A. Yanthis on September
20, 2012. (See Dkt. No. 14.) It was redesignated to Judge McCarthy on May 7, 2014. (See Dkt.
No. 57.)

R&R ("Pet' r's Objs. II") (Dkt. No. 79).). For the reasons to follow, the Court adopts Judge
McCarthy's R&R in its entirety and denies the Petition.
I. Factual Background & Procedura) History

The factual and procedural background of this case is set forth in Judge McCarthy's R&R
and the Court assumes the Parties' familiarity therewith. (See R&R 1-18.) The Court
nevertheless summarizes the facts relevant to this Order.
On November 28, 2008, Petitioner was at 44 South Bleaker Street, Apartment 1-A in
Mount Vernon, New York along with his mother Mary Brown ("Brown"), his brother Nelson
Small ("Nelson") and Nelson's fiancee, Isabel Carreras ("Carreras"). (See id. at 2.) Petitioner's
older brother David Small ("David") returned to the apartment to find Brown yelling at
Petitioner to "stop making noise, turn down the music, and go to sleep." (Id.) Petitioner called
Brown a "bitch" and David told Petitioner to "respect their mother" and "stop drinking." (Id.
(internal quotation marks omitted).) In response, Petitioner told David to "shut the fuck up" and
said that "if [he] said another word, [Petitioner would] kill [him]." (Id. (internal quotation marks
omitted).) When David told Petitioner to "get [his] coat" and repeated that he needed to respect
their mother, Petitioner repeated his threat to kill David and began chasing him with a kitchen
knife. (Id. (internal quotation marks omitted).) When David and Petitioner were near the front
door of the apartment building, Petitioner stabbed David in the chest. (See id.) David was
"gushing blood" and Petitioner pushed the door to the building open, causing David to fall down
the concrete stairs onto a landing. (Id. (internal quotation marks omitted).) Petitioner jumped to
the landing and continued to swing at David, until David grabbed Petitioner and held him against
a pole. (See id. 2-3.) David then lost consciousness and fell backwards down a second flight of
stairs. (See id. at 3.) Upon regaining consciousness, David threw garbage cans at Petitioner

2

while running into the street. (See id.) Petitioner chased after David, who called to Nelson,
alerting him that "[Petitioner] just stabbed [him]." (Id. (internal quotation marks omitted).)
Carreras awoke during the commotion and upon hearing that David had been stabbed by
Petitioner, yelled to Nelson and Brown to call an ambulance. (See id.)
Petitioner, still holding the knife, then returned to the stairs of the apartment, approached
Carreras, and asked for a cigarette. (See id.) Petitioner "put the knife in his pocket, wiped the
blood off his face, and licked his hand.'' (Id.) When Carreras asked Petitioner what happened,
he replied that he was 'just tired of that mother fucker." (Id. (internal quotation marks omitted).)
At approximately 3:45 A.M., Detective Roberto Boncardo ("Boncardo") arrived at the
apartment and spoke to Carreras. (See id.) Boncardo and Carreras searched the area for
Petitioner, but were unsuccessful in locating him. (See id.) Carreras then went to police
headquarters to give a formal statement. (See id.) Boncardo and Carreras returned to the area
around the apartment and continued to search for Petitioner, whom they located at approximately
5:30 A.M. (See id.) Boncardo called for backup, drew his weapon, and ordered Petitioner to
raise his hands in the air. (See id. at 3-4.) Petitioner took a black knit cap and a knife out of his
coat and "tossed them into a green garbage receptacle." (Id. at 4.) Petitioner was arrested and
Boncardo recovered the cap and knife. (See id.) Petitioner was brought to Mount Vernon police
headquarters and provided police with a written statement, waiving his rights pursuant to
Miranda v. Arizona, 384 U.S. 436 (1966), and stating that he stabbed David in self-defense, (see
id.).

On November 28, 2008, Petitioner was arraigned in City Court, City of Mount Vernon,
and charged with assault in the first degree and criminal possession of a weapon in the third
degree. (See id.) On December 17, 2008, Petitioner appeared with counsel for a felony hearing,

3

and on May 7, 2009, evidence was presented to a grand jury. (See id. at 4-5.) 3 Petitioner was
charged with attempted murder in the second degree, assault in the second degree, criminal
possession of a weapon in the third degree, and menacing in the second degree. (See id. at 5.)
Petitioner made several pre-trial motions, and following pre-trial hearings, (see id. at 59), trial was held from January 25 through February 3, 20 I 0, (see id. at 9). On February 3, 201 O,
the jury acquitted Petitioner of the charge of attempted murder in the second degree but
convicted him of assault in the second degree and criminal possession of a weapon in the third
degree. (See id.) The charge of menacing was previously withdrawn during trial. (See id. at 9
n.17.) On July 21, 2010, Petitioner was sentenced to a term of 17 years to life for the crime of
assault in the second degree, to run concurrently with a term of three-and-one-half years to seven
years for the crime of criminal possession of a weapon in the third degree. (See id. at 11.)
Petitioner, by his counsel Gerald Zuckerman, Esq., appealed his conviction to the
Supreme Court of the State of New York, Appellate Division. (See id. at 12.) On January 10,
2012, the Appellate Division affirmed Petitioner's conviction. See People v. Small, 935
N.Y.S.2d 892, 893 (App. Div. 2012). In papers dated February 7, 2012, Petitioner, proceeding
pro se, filed an application for leave to appeal his conviction to the New York Court of Appeals.
(See R&R 12.) Mr. Zuckerman subsequently completed Petitioner's application by letter dated

February 16, 2012, stating that "the grounds for appeal [we]re essentially that the verdict was
against the weight of the evidence produced at trial." (Id. (internal quotation marks omitted).) 4

3

Between December 17, 2008 and May 7, 2009, several conferences were held which
"failed to result in a superior court information." (R&R 5.)
4

Petitioner filed an additional pro se application for leave to appeal dated February 23,
2012, but ultimately declared his intention to proceed with Mr. Zuckerman's application. (See
R&R 12-13.)

4

1

On April 5, 2012, the Court of Appeals denied Petitioner's leave application. See People v.

Small, 968 N.E.2d 1009 (N.Y. 2012).
In papers dated January 26, 2012, Petitioner filed pro se motions to vacate the judgment
against him and to set aside his sentence pursuant to New York Criminal Procedure Law
("C.P.L.") §§ 440.10 and 440.20, respectively. (See R&R 13.) Petitioner subsequently filed a
second§ 440.10 motion, dated April 17, 2012. (See id. at 15.) The Court of Appeals denied
both motions on July 2, 2012. (See id. at 16.) Petitioner did not seek leave to appeal these
denials. (See id. at 17.)
Petitioner filed the instant Petition on July 13, 2012, (see Dkt. No. 1), and an amended
petition on December 20, 2015, which Magistrate Judge George A. Yanthis ("Judge Yanthis")
rejected as improperly filed, (see Dkt. No. 35). Judge Yanthis granted Petitioner leave to file a
motion to amend, (see id.), and Petitioner filed a motion to amend, dated January 26, 2013, (see
Dkt. No. 36). Judge Yanthis denied the motion to amend on February 21, 2013. (See Dkt. No.
38.) Respondent filed an opposition to the Petition on December 31, 2012. (See Dkt. Nos. 2122.) Petitioner made various subsequent filings, (see Dkt. Nos. 39-51), but did not file a reply
before the January 30, 2013 deadline,

(see

Dkt.).

II. Discussion
A. Standard of Review
I. Review of a Magistrate Judge's Report & Recommendation

A district court reviewing a report and recommendation addressing a dispositive motion
"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)(l). Under 28 U.S.C. § 636(b)(l) and Federal Rule of
Civil Procedure 72(b), a party may submit objections to the magistrate judge's report and

5

recommendation. The objections must be "specific" and "written," Fed. R. Civ. P. 72(b)(2), and
must be made "[w]ithin 14 days after being served with a copy of the recommended disposition,"
id.; see also 28 U.S.C. § 636(b)(l), plus an additional three days when service is made pursuant

to Federal Rule of Civil Procedure 5(b)(2)(C), (0), or (F), see Fed. R. Civ. P. 6(d), for a total of
seventeen days, see Fed. R. Civ. P. 6(a)(I).
"A district court evaluating a magistrate judge's report may adopt those portions of the
report [and recommendation] to which no 'specific, written objection' is made, as long as the
factual and legal bases supporting the findings and conclusions set forth in those sections are not
clearly erroneous or contrary to law." Adams v. N. Y. State Dep 't of Educ., 855 F. Supp. 2d 205,
206 (S.D.N.Y. 2012), ajj"d sub nom. Hochstadt v. N.Y. State Educ. Dep 't, 547 F. App'x 9 (2d
Cir. 2013). However, where a party timely objects to a report and recommendation, as Petitioner
has done here, the district court reviews de novo the parts of the report and recommendation to
which the party objected. See 28 U.S.C. § 636(b)(I); Fed. R. Civ. P. 72(b)(3). "When a
[petitioner] simply rehashes the same arguments set forth in [his] original petition, however, such
objections do not suffice to invoke de novo review of the [r]eport." Aponte v. Cunningham, No.
08-CV-6748, 2011WL1432037, at *1 (S.D.N.Y. Apr. 11, 2011) (italics omitted); see also Hall
v. Herbert, Nos. 02-CV-2299, 02-CV-2300, 2004 WL 287115, at *l (S.D.N.Y. Feb. 11, 2004)
("[T]o the extent that a party simply reiterates his original arguments, the [c]ourt reviews the
report and recommendation only for clear error.").
Finally, pleadings submitted by pro se litigants are held to a less strict standard than those
drafted by attorneys. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) ("Even in
the formal litigation context, prose litigants are held to a lesser pleading standard than other
parties." (italics omitted)). Because Petitioner is proceeding prose, the Court construes his

6

pleadings "to raise the strongest arguments that they suggest." See Triestman v. Fed Bureau of

Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (per curiam) (italics and internal quotation marks
omitted).
2. Habeas Comµs Review
Petitions for a writ of habeas corpus are governed by the Antiterrorism and Effective
Death Penalty Act of 1996 ("AEDPA"), which provides that "[t]he writ may not issue for any
claim adjudicated on the merits by a state court unless the state court's decision was 'contrary to,
or involved an unreasonable application of, clearly established Federal law as determined by the
Supreme Court of the United States,' or was 'based on an unreasonable determination of the
facts in light of the evidence presented in the State Court proceeding."' Epps v. Poole, 687 FJd
46, 50 (2d Cir. 2012) (quoting 28 U.S.C. § 2254(d)(l)-(2)). In this context, "it is the habeas
applicant's burden to show that the state court applied [federal law] to the facts of his case in an
objectively unreasonable manner." Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
"[A]n unreasonable application is different from an incorrect one." Bell v. Cone, 535 U.S. 685,
694 (2002); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) ("The question under
AEDPA is not whether a federal court believes the state court's determination was incorrect but
whether that determination was unreasonable-a substantially higher threshold.").
Section 2254(d) "reflects the view that habeas corpus is a guard against extreme
malfunctions in the state criminal justice systems, not a substitute for ordinary error correction
through appeal." Harrington v. Richter, 562 U.S. 86, 102-03(2011) (internal quotation marks
omitted). Consequently, a federal court must deny a habeas petition in some circumstances even
if the court would have reached a conclusion different than the one reached by the state court,
because "even a strong case for relief does not mean the state court's contrary conclusion was

7

unreasonable." Id at 102; see also Cullen v. Pinholster, 563 l).S. 170, 202-03 (201 I) ("Even if
the [federal] Court of Appeals might have reached a different conclusion as an initial matter, it
was not an unreasonable application of our precedent for the [state court] to conclude that [the
petitioner] did not establish prejudice."); Hawthorne v. Schneiderman, 695 F.3d I 92, I 97 (2d
Cir. 2012) (per curiam) ("Although we might not have decided the issue in the way that the [New
York State] Appellate Division did-and indeed we are troubled by the outcome we are
constrained to reach-we .... must defer to the determination made by the state court .... "
(citation omitted)).
Under AEDPA, the factual findings of state courts are "presumed to be correct." 28
U.S.C. § 2254(e)(l); see also Nelson v. Walker, 121 F.3d 828, 833 (2d Cir. 1997). A petitioner
can rebut this presumption only by "clear and convincing evidence." 28 U.S.C. § 2254(e)(I); see

also Cotto v. Herbert, 331 F.3d 217, 233 (2d Cir. 2003) (same). Finally, only federal Jaw claims
are cognizable in habeas proceedings. "[l]t is not the province of a federal habeas court to
reexamine state-court determinations on state-law questions. In conducting habeas review, a
federal court is limited to deciding whether a conviction violated the Constitution, laws, or
treaties ofthe United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also 28 U.S.C.

§ 2254(a) ("The Supreme Court, a Justice thereof, a circuit judge, or a district court shall
entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to
the judgment of a State court only on the ground that he is in custody in violation of the
Constitution or laws or treaties of the United States.").

8

B. Petitioner's Objections
1. Requests for Trial Transcri12ts

In a document dated September 21, 2016 and filed with the Court on September 27, 2016,
Petitioner stated that there was "no real reason for Judge[] Judith C. McCarthy to decide a
placement report [and] recommendation on [his] habeas corpus without a[] reply of the Court[']s
denial ... of transcripts [of Petitioner's 2001 trial]." (Pet'r's Objs. I, at 2.) While this objection
is far from clear, the Court liberally construes it to raise an objection to the Court's denial of
Petitioner's request for copies of his trial transcripts.
In a document labeled "Ex[h]ibit A" and dated September 21, 2016, Petitioner states that
"there was no given respect to [the Court's] order to give transcripts to [P]etitioner September 8,
2012." (See Pet' r's Objs. II, at 2.) The Court assumes that Petitioner is referring to an Order To
Answer, dated September 18, 2012, in which the Court instructed Respondent to "file and serve
an answer and the transcripts and briefs identified in Rule 5 of the Rules Governing§ 2254
Cases in the United States District Court within sixty (60) days of the date of this Order." (See
Dkt. No. I 3.)
On February 6, 2013, Petitioner filed a motion requesting, among other things, that
Respondent produce the trial and sentencing transcripts. (See Dkt. No. 36.) On February 2 I,
2013, the Court denied the motion. (See Dkt. No. 38 ("To the extent that [P]etitioner seeks free
transcripts of his criminal trial and a DNA report, he has not made any showing whatsoever as to
why he would be entitled to such.").) On February 13, 2014, Petitioner sent a letter to the Court
requesting state court transcripts, (see Dkt. No. 53), and the Court denied the request, (see Dkt.
No. 55). On May 15, 2014, Petitioner filed a "Notice of Motion to Proceed as a Poor Person
Upon Appeal & to Furnish a Stenographic Transcript Without Fee," again requesting the

9

transcripts in his state action. (Dkt. No. 58). In an Order dated September 15, 2014, Judge
McCarthy denied Petitioner's request for the transcripts. (See Dkt. No. 62.) In a letter to the
Court, dated November 6, 2014, Petitioner requested transcripts for a fourth time. (See Dkt. No.
63).) In an Order dated December 19, 2014, the Court found that Petitioner had not
demonstrated a need for the transcripts and again denied the request. (See Dkt. No. 65.) As
Petitioner's requests for the transcripts from his trial and sentencing in state court have been
repeatedly considered and denied, this Court rejects Petitioner's objection to Judge McCarthy's
R&R on this basis.
2. Additional Objections
The remainder of Petitioner's objections are extremely difficult to follow and the Court
agrees with Judge McCarthy that is it "often left guessing as to what Petitioner perceives to
aggrieve him" with respect to the R&R. (R&R 26 (internal quotation marks omitted).) Indeed,
Petitioner's objections appear to be a response to Respondent's objections, and not the R&R.
(See Pet'r's Objs. II, at l ("On ... September 20, 2016, James A. McCarty ... responded [with]
objection[s] to [the] Report and Recommendation."); id. at 4 (requesting "feed[]back in trying to
explain [Petitioner's] actions on the objection of ... James A. McCarty['s] request to den[y]
[his] habe[a]s corpus").) Petitioner's "submission[s] to the [C]ourt do(] not in fact amount to an
objection of any kind, much less a specific objection to a particular portion of [the] Report and
Recommendation." Thomas v. Yelich, No. 09-CV-5039, 2012 WL 5904359, at *2 (E.D.N.Y.
Nov. 26, 2012). Petitioner makes little mention of the R&R, other than to say that he "received
[it]," (see Pet'r's Objs. I, at 1), and that "there was no real reason for Judge[] Judith C. McCarthy
to decide a placement Report [and] Recommendation" in light of the denial of Petitioner's
request for his trial transcripts, (id. at 2).

10

Aware of its obligation to construe Petitioner's submissions liberally, see Triestman, 470
F.3d at 474, to the extent the Court can discern objections from Petitioner's filings, Petitioner
appears to take issue with Judge McCarthy's findings regarding the weight of the evidence, (see
Pet'r's Objs. II, at 1 ("[Petitioner has] corresponded to [sic] [the Court] thr[ough] the years ... to
try ... to rearra[]nge the truth in the sight of the highly p[ie]rs of Magistrate thr[ough] lack of
evidence.")), his "ineffective counsel," (id. at 1-2), and the "Grand Juror[]s adding []counts for
conviction," (id. at 2). Each of these issues was either addressed in the R&R or raised on direct
appeal in Petitioner's state court proceedings, (see R&R 29 ("A weight of the evidence argument
is a state law claim ... that is not cognizable on federal habeas review."); id. at 41-42 (finding
"Petitioner arguably complains of ineffective assistance of counsel," but holding "[t]hese vague
and conclusory allegations are not sufficient to warrant federal habeas relief' and "Petitioner
does not articulate the factual basis underlying his claims"); id. at 14 (noting that in his first

§ 440 .10 motion, Petitioner raised issue of "the fact that [he] was arraigned on a first degree
assault charge but indicted on the different charges of second degree assault, attempted murder in
the second degree and criminal possession of a weapon in the third degree")), however, the Court
cannot determine the specific objections Petitioner is raising with respect to Judge McCarthy's
findings on these issues. "In cases where ... only vague or general objections are made, or a
party resubmits the same papers and arguments already considered by the magistrate judge, [a]
court reviews the findings and recommendations of the magistrate judge for clear error."

Depronio v. Colvin, No. 15-CV-231, 2016 WL 4508357, at* I (N.D.N.Y. Aug. 29, 2016). The
Court has reviewed the R&R and, finding no error in connections with these issues, clear or
otherwise, dismisses Petitioner's objections.

11

3. Resnondent's Objections
Petitioner's C.P.L. § 440 motions raised a claim that his trial counsel was ineffective; the
state court found that such claims were procedurally barred and should have been raised on
direct appeal. (See R&R 16.) Petitioner failed to seek leave to appeal to the Appellate Division.
(See id at 17.) Respondent's single objection is to Judge McCarthy's recommendation "that this
Court not deem [the issue of ineffective assistance of trial counsel] unexhausted, procedurally
barred or denied on independent and adequate state grounds." (Resp't's Objs. 1.)
"[l]n addressing a habeas petition, a federal court must not 'review a question of federal
law decided by a state court if the decision of that court rests on a state law ground that is
independent of the federal question and adequate to support the judgment."' Henry v. Conway,
No. 04-CV-4298, 2005 WL 1861738, at *2 (E.D.N.Y. Aug. 3, 2005) (quoting Coleman v.
Thompson, 501 U.S. 722, 729 (1991)); see also Levine v. Comm 'r of Corr. Servs., 44 F.3d 121,
126 (2d Cir. 1995) ("Federal habeas review is prohibited if a state court rests its judgment on an
adequate and independent state ground." (internal quotation marks omitted)). Failure to comply
with state procedural requirements, including the failure to raise an issue on direct appeal,
constitutes a valid independent and adequate state ground. See Clark v. Perez, 510 F.3d 382, 393
(2d Cir. 2008) (holding that the failure to raise an issue on appeal constitutes an adequate state
procedural bar to a federal habeas petition); Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir. 2003)
(holding where a petitioner "waived the [habeas] claim under § 440. l 0(2)(c) ... [the] claim
[was] procedurally defaulted for the purposes of federal habeas review as well"); Edwards v.
Marshall, 589 F. Supp. 2d 276, 285 (S.D.N.Y. 2008) ("Where a petitioner fails to comply with
state procedural rules, his claim is procedurally defaulted and is not cognizable on habeas
review."). Judge McCarthy and Respondent agree that C.P.L. § 440.10(2)(c) is an independent

12

and adequate state ground upon which courts have precluded habeas review. (See R&R 39;
Resp't's Objs. 2.)
Petitioner's 30-day deadline to seek leave to appeal from the denial of his C.P.L.
§ 440.10 motion has long since passed. See C.P.L. § 460.10(4)(2) ("Within [30] days after
service upon the defendant of a copy of the order sought to be appealed, the defendant must
make application ... for a certificate granting leave to appeal to the intermediate appellate
court."). Petitioner has not alleged "improper conduct, inability to communicate, or other facts
essential to support the motion" to extend the time limit, see id. § 460.30(a), and therefore,
Petitioner would be barred from raising such claims, see People v. Ferraro, 564 N.Y.S.2d 479,
480 (App. Div. 1991) ("Since the defendant failed to timely move for leave to appeal from the
order denying his postjudgment motion pursuant to [C.P .L. §] 440. IO to vacate the judgment, his
appeal from the order is dismissed."). "For exhaustion purposes, a federal habeas court need not
require that a federal claim be presented to a state court if it is clear that the state court would
hold the claim procedurally barred." Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997) (internal
quotation marks omitted). "In such a case, a petitioner no longer has remedies available in the
courts of the State within the meaning of28 U.S.C. § 2254(b)." Grey v. Hoke, 933 F.2d 117, 120
(2d Cir. 1991). Consequently, certain courts have held that "such procedurally barred claims are
deemed exhausted." Santos v Rock, No. 10-CV-2896, 2011 WL 3449595, at *7 (S.D.N.Y. Aug.
5, 2011) (internal quotation marks omitted), adopted by 2011 WL 4000896 (S.D.N.Y. Sept. 7,
2011).
"[T]he application of this rule in cases where the petitioner failed to appeal the denial of
his C.P.L. § 440.10 motion has not been entirely consistent." Id. at *7. In Pesina v. Johnson, the
Second Circuit held that the expiration of the statute of limitations for applications for leave to

13

appeal imposed by C.P.L. § 460.10(4)(a) did not constitute exhaustion of the claim in the state
courts:
While that statutory limit may ultimately be held by state courts to preclude
them from reaching the merits of [a petitioner's] ineffective assistance claim, [the
petitioner] must still present that claim to the highest state court. We have no
authority to declare as a matter of state Jaw that an appeal from the denial of his
original [§] 440.10 motion is unavailable.
913 F.2d 53, 54 (2d Cir. 1990) (per curiam).
The Second Circuit has not disavowed this aspect of Pesina, and as the R&R indicates,
this Court has had occasion to revisit the Pesina rule, and has declined to stray from its ruling,
despite the admitted uncertainty of its continued viability. See Quintana v. McCoy, No. 03-CV5754, 2006 WL 300470, at *5 (S.D.N.Y. Feb. 6, 2006) ("While Pesina may well be on shaky
ground, it cannot be nullified by this Court.''); Shomo v. Maher, No. 04-CV-4149, 2005 WL
743156, at *7 (S.D.N. Y. March 31, 2005) (stating the "demise [of Pesina] cannot be declared by
this Court"). As Respondent ultimately agrees that "Judge McCarthy correctly recommended
that the instant [P]etition for writ of habeas corpus be denied in its entirety," the Court adopts the
R&R in full. (Resp't's Objs. 1 (italics omitted).)
III. Conclusion
The Court, having conducted a thorough review of the remainder of the R&R, finds no
error, clear or otherwise. The Court therefore adopts Judge McCarthy's R&R. Petitioner's writ
of habeas corpus is accordingly dismissed with prejudice.
As Petitioner has not made a substantial showing of the denial of a constitutional right, a
Certificate of Appealability shall not be issued, see 28 U.S.C. § 2253(c)(2); Lucidore v. N.Y.

State Div. of Parole, 209 F.3d 107, 111-12 (2d Cir. 2000), and the Court further certifies,
pursuant to 28 U.S.C. § I 915(a)(3), that an appeal from this judgment on the merits would not be

14

taken in good faith, see Coppedge v. United States, 369 U.S. 438, 445 (1962) ("We consider a
defendant's good faith ... demonstrated when he seeks appellate review of any issue not
frivolous."); Burda Media Inc. v. Blumenberg, 731 F. Supp. 2d 321, 322-23 (S.D.N.Y. 2010)
(citing Coppedge and noting that an appeal may not be taken in forma pauperis ifthe trial court
certifies in writing that it is not taken in good faith).
The Clerk of the Court is respectfully directed to enter judgment in favor of Respondent,
send a copy of this Order to Petitioner at the address listed on the docket, close the case.
SO ORDERED.
DATED:

September~, 2017
White Plains, New York

15