Ferguson v. Griffin

Filing 67

ORDER ADOPTING REPORT AND RECOMMENDATION for 52 Report and Recommendation. Accordingly, having considered the matter de novo, I find no error in the Magistrate Judge's finding that Petitioner did not receive substandard advice from his couns el. Thus, for the reasons stated above, Petitioner's objections are overruled. I have reviewed the portions of the R&R as to which no objection has been raised, and find no error, clear or otherwise. Accordingly, the R&R is adopted as the decis ion 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 3/6/2018) (mml)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------x
ANDRE FERGUSON,
Petitioner,
-against-

ORDER ADOPTING REPORT
AND RECOMMENDATION

T. GRIFFIN, Superintendent,
Eastern Correctional Facility,
13-CV-4528 (CS)(JCM)
Respondent.
---------------------------------------------------x
Appearances:
Jeffrey G. Pittell
Maher & Pittell, LLP
Bayside, New York
Counsel for Petitioner
John J. Sergi
Lisa M. Denig
Assistant District Attorneys
Westchester County District Attorney’s Office
White Plains, New York
Counsel for Respondent
Seibel, J.
Before the Court are Respondent’s objections, (Doc. 61 (“R’s Objs.”)), and Petitioner’s
objections, (Doc. 62 (“P’s Objs.”), to the Report and Recommendation of United States
Magistrate Judge Judith C. McCarthy, (Doc. 52 (the “R&R”)), recommending that Petitioner’s
application for a writ of habeas corpus be denied.
The Court assumes the parties’ familiarity with the state court proceedings, the
proceedings before the Magistrate Judge, and the standards governing petitions under 28 U.S.C.
§ 2254.

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)), aff’d sub nom. Hochstadt v. N.Y. State
Dep’t of Educ., 547 F. App’x 9 (2d Cir. 2013). “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. Auto., 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); 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. of the Tri-Valley Cent. Sch. Dist., 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 objects to Magistrate Judge McCarthy’s finding, (R&R at 25-26), that the
state trial court unreasonably determined that the documents Petitioner submitted in support of
2

his motion to vacate judgment under New York Criminal Procedure Law (“CPL”) § 440.10 were
insufficient to warrant a hearing under CPL § 440.30(4)(d). (R’s Objs. at 10-11.)1 Absent that
determination, Magistrate Judge McCarthy would have given deference to the state-court
decision. Because she did not defer, she held a hearing and considered de novo whether
Petitioner was deprived of effective assistance of counsel. But because she determined that he
had not been so deprived, I need not reach the issue raised by Respondent.2
Petitioner, under the heading “Specific Objections to the R&R,” says he objects to all of
the Magistrate Judge’s findings of fact, her legal conclusion that he was not deprived of effective
assistance of counsel, and her recommendation that a Certificate of Appealability not issue. (P’s

1

Under CPL § 440.30(4)(d), a state trial court may deny a CPL § 440.10 motion without a
hearing if “an allegation of fact essential to support the motion . . . is made solely by the
defendant and is unsupported by any other affidavit or evidence.”
2

I am unconvinced, however, by Respondent’s argument concerning Petitioner’s mother’s
affidavit, in which she said that during the course of the prosecution, Petitioner told her that his
lawyer had informed him of a two-year plea offer but that Petitioner was not going to accept it
because he held out hope that the victim would admit that she willingly had sex with him. (Doc.
13-14 at ¶¶ 4-5.) The affidavit could suggest that Petitioner was under the impression that the
victim’s consent was a defense to statutory rape (rape in the third degree), and thus could support
his claim that his lawyers never disabused him of that impression. (On the other hand, it could
suggest that Petitioner understood consent to be a defense to forcible rape (rape in the first
degree), which would not support his claim. But the issue is not whether the affidavit makes
Petitioner’s case, but rather whether it constitutes “other . . . evidence.”) Respondent argues that
Petitioner’s mother’s affidavit “was not cognizable support, nor even competent evidence, as it
was a mere hearsay assertion of what petitioner had told her as to his own state of mind [and n]o
more support . . . than would have occurred had petitioner merely repeated his averments into a
tape recorder.” (R’s Objs. at 10.) But this argument overlooks that a statement of a declarant’s
then-existing state of mind is an exception to the hearsay rule, see Fed. R. Evid. 803(3); People v.
Ricco, 437 N.E.2d 1097, 1102 (1982), and that Petitioner’s state of mind at the time of that plea
offer was relevant. Even if the affidavit is no better than a tape-recorded statement, a taperecorded statement by Petitioner from the time of the two-year offer would qualify as “other
evidence” as to his state of mind at the time. In light of all the evidence, the affidavit is not
convincing, but that does not prevent it from constituting some “other affidavit or evidence” for
purposes of § 440.30(4)(d).
3

Objs. at 6.) Labeling these general and conclusory objections “specific” does not make them so.
Rather, they are wholesale objections for which no basis is specified, and accordingly they do not
suffice to invoke de novo review. See Mario, 313 F.3d at 766 (“bare statement, devoid of any
reference to specific findings or recommendations to which [Plaintiff] objected and why, and
unsupported by legal authority,” was not adequate objection under Rule 72); Owusu v. N.Y. State
Ins., 655 F. Supp. 2d 308, 313 (S.D.N.Y. 2009) (“[O]bjections that are merely perfunctory
responses argued in an attempt to engage the district court in a rehashing of the same arguments
set forth in the original papers will not suffice to invoke de novo review [because s]uch
objections would reduce the magistrate’s work to something akin to a meaningless dress
rehearsal.”) (alterations, citations and internal quotation marks omitted). “To accept the report
and recommendation of a magistrate judge to which such general or perfunctory objections are
made, . . . the district judge need only be satisfied that there is no clear error apparent on the face
of the record.” Heckmann v. Town of Hempstead, No. 10-CV-5455, 2013 WL 1345250, at *1
(E.D.N.Y. Mar. 27, 2013) (collecting cases). I am so satisfied. Further, even if I were reviewing
these objections de novo, I would uphold the Magistrate Judge’s conclusions because they are
well reasoned and Petitioner has supplied no argument as to why they are not.
The remainder of Petitioner’s objections are addressed to his argument that: 1) a defense
lawyer is obligated to inform the client of any plea offer, advise the client as to the merits of any
potential defense, and apprise the client of his potential sentencing exposure; 2) counsel in
Petitioner’s case failed in those obligations; 3) that failure caused him prejudice; and 4) the
remedy is to require that the two-year plea offer to be re-extended. (P’s Objs. at 6-15.) The
Court has no quarrel with Petitioner’s recitation of a defense lawyer’s obligations. But the
4

Petition in this case makes clear that counsel met the first and third requirements – Petitioner
avers that “[c[ounsel communicated the offers to Ferguson and told him how much time he was
facing,” (Doc. 2 at 5) – and that the only issue is whether counsel explained to Petitioner that the
underage victim’s consent was not a viable defense to rape in the third degree, (id. at 3-5).
Petitioner’s argument in his objections that counsel failed in that obligation is based
entirely on Petitioner’s version of the facts, which the Magistrate Judge rejected after an
evidentiary hearing at which four of his lawyers testified. Petitioner presents no reason to
question the Magistrate Judge’s decision to credit the testimony of the lawyers that together
showed that one or more of them explained the elements of rape in the third degree, advised that
consent was not a defense, informed Petitioner that his confession to having had sex with the
fifteen-year-old victim was damaging and would result in his conviction if not suppressed, and
recommended that he accept the two-year plea offer. (R&R at 11-13.) Petitioner has not asked
this Court to hear fresh testimony, see Carrion v. Smith, 549 F.3d 583, 588 (2d Cir. 2008)
(district judge cannot reject magistrate judge’s credibility findings without re-hearing live
testimony), or made any other argument as to why it ought to reject the Magistrate Judge’s
factual findings. His entire argument assumes the truth of his version and ignores the contrary
testimony and factual findings of record. Accordingly, having considered the matter de novo, I
find no error in the Magistrate Judge’s finding that Petitioner did not receive substandard advice
from his counsel.
Thus, for the reasons stated above, Petitioner’s objections are overruled. I have reviewed
the portions of the R&R as to which no objection has been raised, and find no error, clear or
otherwise. Accordingly, the R&R is adopted as the decision of the Court. As the Petition makes
5

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: March 6, 2018
White Plains, New York

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

6