Foddrell v. LaValley

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 21 Report and Recommendations. All objections are overruled. I have reviewed the portions of the Petition as to which no objection has been raised, and find no error, clear or otherwise. Thus, the R &R is adopted as the decision of the Court. As the Petition makes no substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2). The Clerk of Court is respectfully directed to close the case. SO ORDERED. (Signed by Judge Cathy Seibel on 9/20/16) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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DYEGO FODDRELL,
Petitioner,
-against-

ORDER ADOPTING REPORT
AND RECOMMENDATION

THOMAS LAVALLEY, Superintendent,
Clinton Correctional Facility,
12-CV-6562 (CS)(LMS)
Respondent.
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Seibel, J.
Before the Court are Respondent’s objections, (Doc. 22), and Petitioner’s objections,
(Doc. 24), to the Report and Recommendation of United States Magistrate Judge Lisa Margaret
Smith, (“R&R”), (Doc. 21), recommending that Petitioner’s application for a writ of habeas
corpus be denied. Familiarity with the underlying proceedings, the Petition, the parties’
arguments and the R&R is presumed.
A District Court reviewing a report and recommendation “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)(C). The district court “may adopt those portions of the report 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) (quoting Fed. R. Civ. P.
72(b)) (citing Thomas v. Arn, 474 U.S. 140, 149 (1985)). “A party that objects to a report and
recommendation must point out the specific portions of the report and recommendation to which
they [sic] object.” J.P.T. Automotive, Inc. v. Toyota Motor Sales, U.S.A., Inc., 659 F. Supp. 2d
350, 352 (E.D.N.Y. 2009). If a party fails to object to a particular portion of a report and

recommendation, further review thereof is generally precluded. See Mario v. P & C Food Mkts.,
Inc., 313 F.3d 758, 766 (2d Cir. 2002). The court must review de novo any portion of the report
to which a specific objection is made. See 28 U.S.C. § 636(b)(1)(C); United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). When a party makes only conclusory or general
objections, or simply reiterates the original arguments made below, a court will review the report
only for clear error. Alaimo v. Bd. of Educ., 650 F. Supp. 2d 289, 291 (S.D.N.Y. 2009).
“Furthermore, [even] on de novo review, the Court generally does not consider arguments or
evidence which could have been, but were not, presented to the Magistrate Judge.” United
States v. Vega, 386 F. Supp. 2d 161, 163 (W.D.N.Y. 2005).
Respondent takes issue with Magistrate Judge Smith’s conclusion that all claims in the
Petition were exhausted, arguing that while Petitioner’s letter request to the New York Court of
Appeals, (Doc. 12 Ex. 8), sought leave to appeal all issues decided by the Appellate Division, the
letter’s reference to the jury charge in particular served to limit the request to that one issue.
(Doc. 22.) I agree with Judge Smith that all claims were fairly presented to New York’s highest
court. See Morgan v. Bennet, 204 F.3d 360, 371 (2d Cir. 2002) (second letter discussing
specific issues not construed to narrow earlier request that all issues be reviewed).
Petitioner challenges Judge Smith’s conclusion that it was neither contrary to nor an
unreasonable application of federal law for the Appellate Division to rule that Petitioner’s
statements to Detective Glover were admissible. (Doc. 24, at 4-7.) He first argues that Judge
Smith erroneously found that he had been left alone in an interview room between 10:19 am and
2:00 pm, when he was moved to a new interview room. (Id. at 4.) The state trial judge so found,
(Doc. 12 Ex. 4, at 10), but Petitioner claims he was removed to a holding cell and then returned
to an interview room that appeared identical to the one in which he had been previously, (Doc.
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24, at 4.) He does not argue that he presented testimony to that effect in the Huntley hearing
before the state judge, and so it is hard to determine what error he believes the state court made.
See 28 U.S.C. § 2254 (e)(1) (factual findings of state court entitled to presumption of correctness
absent clear and convincing evidence to the contrary). In any event, even if Petitioner’s version
of his whereabouts during that period is correct, it would make no difference to the analysis.
Under either version, Petitioner was not questioned for three hours and forty minutes, and the
interview with Detective Glover took place in a separate room from where Petitioner had spent
that interval. Nothing about Petitioner’s version of the events renders unreasonable or contrary
to federal law the conclusion that the detectives did not employ a deliberate two-step
interrogation process. While Petitioner points out that there was no break in his custody between
10:19 am and 2:00 pm, that will often be the case where the claim is that a prior unwarned
statement taints a later warned statement – indeed, if the first statement is made when the suspect
is not in custody, no warnings are required – and does not undermine the conclusion that federal
law was not offended by the denial of the suppression of the statements to Detective Glover.
Nor is that conclusion undermined by Detective Glover’s reference, at the beginning of
the interrogation, to his desire for clarification of Petitioner’s earlier statements. Petitioner
argues that by referring to Petitioner’s earlier statements and saying that the detectives were
having trouble understanding how the victim sustained certain injuries, Detective Glover
“inex[tr]icably linked” the earlier statements to the final statements. (Doc. 24, at 6; see id. Ex.
C.) That link does not undermine the basic facts that underlay the conclusion that no deliberate
two-step process had been employed: the content, setting and questioner were still different; new
warnings were admininstered; and more than three-and-a-half hours had elapsed. While an
overlap in subject matter is one of the factors to be considered in determining whether a
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deliberate two-step process was employed, Missouri v. Seibert, 542 U.S. 600, 615 (2004), and
while in that case “[t]he impression that the further questioning was a mere continuation of the
earlier questions and responses was fostered by references back to the confession already given”
a mere fifteen to twenty minutes earlier, id. at 616, overlap in content is but one of the applicable
factors, and Petitioner points to no authority for the proposition that a reference to the earlier
statement compels the conclusion that a deliberate two-step process has been used. The
remaining factors supported the state court’s conclusion that the statements to Detective Glover
were sufficiently attenuated from the earlier interrogations, and the detective’s mention of the
earlier statements is simply not enough to suggest that the state court’s analysis was contrary to
or an unreasonable application of federal law.
Thus, for the reasons stated above, all objections are overruled. I have reviewed the
portions of the Petition as to which no objection has been raised, and find no error, clear or
otherwise. Thus, the R&R is adopted as the decision of the Court. As the Petition makes no
substantial showing of a denial of a constitutional right, a certificate of appealability will not
issue. 28 U.S.C. § 2253(c)(2). The Clerk of Court is respectfully directed to close the case.
SO ORDERED.
Dated: September 20, 2016
White Plains, New York

__________________________
CATHY SEIBEL, U.S.D.J.

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