Sanabria v. Martuscello

Filing 19

OPINION AND ORDER: For these reasons, the Court adopts Judge McCarthy's R&R in its entirety. The Petition is therefore DENIED and, because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, no certificate of appealability will be issued. See 28 U.S.C. § 2253(c). The Clerk of the Court is respectfully directed to enter judgment for Respondent and close this case. The Clerk of the C ourt is further directed to mail a copy of this Opinion to Petitioner at his address on the docket and show proof of service on the docket. SO ORDERED. (Signed by Judge Nelson Stephen Roman on 4/2/2019) (kv) Transmission to Docket Assistant Clerk for processing. Transmission to Orders and Judgments Clerk for processing.

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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ELECTRO\ICALLY FILED
DOC#:

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DATEFILED:

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ERIC SANABRIA,
Petitioner,

15-cv-1705 (NSR)

-againstOPINION & ORDER
DANIEL F. MARTUSCELLO, JR.,
Respondent.

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NELSON S. ROMAN, United States District Judge:
Eric Sanabria ("Petitioner"), proceeding prose, had filed a petition for a writ of habeas
corpus under 28 U.S.C. § 2254 before this Court. ("Petition," ECF No. 2.) Following a jury trial
in 2011, Petitioner was convicted on two counts of criminal possession of stolen property in the
fourth degree. Petitioner was sentenced to concurrent terms of imprisonment of two to four
years on each count, to run consecutive to an eight-year sentence connected to an unrelated
conviction. Currently pending before the Court is a Report and Recommendation ("R&R")
issued by Magistrate Judge Judith C. McCarthy, pursuant to 28 U.S.C. § 636(b) and Federal
Rules of Civil Procedure Rule 72(b), recommending that the Petition be denied and that no
certificate of appealability be issued. (ECF No. 18.) For the following reasons, the Court adopts
the R&R, and the Petition is DENIED.

BACKGROUND
The Court presumes familiarity with the factual and procedural background of this case,
the underlying criminal proceeding, and Petitioner's collateral state challenges.
Following Petitioner's convictions and the exhaustion of his state court appeals, he timely
filed a Petition for a writ of habeas corpus on February 22, 2015. (ECF No. 2.) Through his
Petition, Petitioner alleged that he was deprived of his due process rights to effective assistance

of counsel and that the government did not present legally sufficient evidence to convict him of
two counts of criminal possession of stolen property in the fourth degree. He also alleged that he
was deprived of a fair trial due to prosecutorial misconduct and that his sentencing was improper.
Respondent filed on opposition to the Petition on June 15, 2015, (ECF No. 12), and Petitioner
did not submit a reply.
On February 8, 2019, Judge McCarthy issued a R&R pursuant to 28 U.S.C. § 636(b) and
Federal Rule of Civil Procedure 72(b), recommending that the petition be denied. (ECF No. 18.)
Petitioner’s objections were due by February 22, 2019, but none were filed.
STANDARDS OF REVIEW
A magistrate judge may “hear a pretrial matter [that is] dispositive of a claim or defense”
if so designated by a district court. Fed. R. Civ. P. 72(b)(1); accord 28 U.S.C. § 636(b)(1)(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)(1); accord 28 U.S.C. § 636(b)(1).
Where a magistrate judge issues a report and recommendation,
[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 report 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). However, “[t]o accept the report and
recommendation of a magistrate, to which no timely objection has 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) (quoting Nelson v. Smith, 618 F.
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Supp. 1186, 1189 (S.D.N.Y. 1985) (internal quotation marks omitted); accord Feehan v. Feehan,
No. 09-CV-7016(DAB), 2011 WL 497776, at *1 (S.D.N.Y. Feb. 10, 2011); see also Fed. R. Civ.
P. Rule 72 advisory 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.”).
DISCUSSION
Here, the R&R was issued on February 9, 2019 and the deadline for filing objections was
February 22, 2019. Because Petitioner failed to file any objections, the Court reviews Judge
McCarthy’s R&R for clear error and finds none. As Judge McCarthy noted, Petitioner’s trial
counsel’s decision to forego an opening statement, call witnesses, or engage in cross examination
were strategic and fell short of the ineffective assistance of counsel standard outlined in
Strickland v. Washington, 466 U.S. 668, 685 – 87 (1984). The Court also agrees that Petitioner’s
legal insufficiency of the evidence, prosecutorial misconduct, and improper sentence claims are
procedurally barred from federal review because a state court determined that the claims were
unpreserved for appellate review, which is an independent and adequate state ground.

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CONCLUSION

For these reasons, the Court adopts Judge McCarthy's R&R in its entirety. The Petition
is therefore DENIED and, because reasonable jurists would not find it debatable that Petitioner
has failed to demonstrate by a substantial showing that he was denied a constitutional right, no
certificate of appealability will be issued. See 28 U.S.C. § 2253(c). The Clerk of the Court is
respectfully directed to enter judgment for Respondent and close this case. The Clerk of the
Court is further directed to mail a copy of this Opinion to Petitioner at his address on the docket
and show proof of service on the docket.

Dated: April l, 2019
White Plains, New York

SO ORDERED:

/Nelson S. Roman
~ited~S'm-"District Judge""

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