Phillips v. Uhler

Filing 30

MEMORANDUM OPINION AND ORDER. The R&R is adopted as the opinion of the Court for the reasons stated herein. Accordingly, the petition for a writ of habeas corpus is DENIED. The Clerk is instructed to enter judgment accordingly and close this case. As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Love v. McCray, 413 F.3d 192, 195 (2d. Cir. 2005). The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith; therefore, in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge Vincent L. Briccetti on 4/11/18) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JASON PHILLIPS,
:
Petitioner,
:
:
v.
:
:
SUPERINTENDENT DONALD UHLER,
:
Respondent.
:
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MEMORANDUM OPINION
AND ORDER
16 CV 4996 (VB)

Briccetti, J.:
Pending before the Court is Magistrate Judge Lisa Margaret Smith’s Report and
Recommendation (“R&R”), dated February 5, 2018 (Doc. #28), on Jason Phillips’s petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
After a jury trial, petitioner was convicted in Supreme Court, Westchester County, of two
counts of attempted robbery in the second degree, in violation of Penal Law § 160.10(2)(b) and
Penal Law § 160.10(1), respectively, and one count of menacing in the second degree, in
violation of Penal Law § 120.14(1). 1 He was sentenced on May 24, 2011, to six years
imprisonment on each of the attempted robbery counts and one year imprisonment on the
menacing count, to run concurrently. The Appellate Division, Second Department, affirmed the
conviction. People v. Phillips, 123 A.D.3d 1146 (2d Dep’t 2014). The Court of Appeals denied
leave to appeal. People v. Phillips, 25 N.Y.3d 952 (2015).
Petitioner contends his conviction and sentence were unlawful because (i) the prosecution
failed to prove attempted robbery, i.e., the verdict was not supported by legally sufficient
evidence; and (ii) the prosecution failed to prove that the victim identified petitioner beyond a
reasonable doubt.
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Petitioner was acquitted at trial of charges relating to the alleged robbery of a second

victim.
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Judge Smith recommended denying the petition. Specifically, Judge Smith found
objectively reasonable the Appellate Division’s determination that the evidence was legally
sufficient to establish petitioner’s guilt; to wit, that petitioner’s “intent to rob the victim could be
inferred from his conduct and the surrounding circumstances.” People v. Phillips, 123 A.D.3d at
1146. Moreover, Judge Smith found that petitioner had failed to establish cause or prejudice to
overcome the Appellate Division’s determination that his challenge to the legal sufficiency of the
identification evidence was unpreserved for appellate review.
The Court agrees with Judge Smith’s recommendation. Accordingly, the R&R is adopted
as the opinion of the Court, and the petition is DENIED.
DISCUSSION
I.

Standard of Review
A district court reviewing a magistrate judge’s 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). Parties may raise objections to the report and
recommendation, but the objections must be “specific[,] written,” and submitted within fourteen
days after being served with a copy of the recommended disposition, Fed. R. Civ. P. 72(b)(2); 28
U.S.C. § 636(b)(1), or within seventeen days if the parties are served by mail. See Fed. R. Civ.
P. 6(d).
When a party submits a timely objection to a report and recommendation, the district
court reviews the parts of the report and recommendation to which the party objected under a de
novo standard of review. 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3). The
district court may adopt those portions of the recommended ruling to which no timely objections
have been made, provided no clear error is apparent from the face of the record. See Wilds v.

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United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003). The clearly erroneous
standard also applies when a party makes only conclusory or general objections, or simply
reiterates his original arguments. See Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y.
2008).
Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), when a state court
denies a federal claim on the merits, a habeas petitioner is entitled to relief on that claim only if
he can show the state court either (i) made a decision contrary to, or unreasonably applied,
clearly established federal law as determined by the Supreme Court, or (ii) unreasonably
determined the facts in light of the evidence presented in the state court proceeding. 28 U.S.C. §
2254(d)(1), (2). When a state court denies a federal claim on a procedural ground that is “firmly
established and regularly followed” in that state, a federal court may not even review the claim
unless the petitioner shows either cause and prejudice for the failure to comply with state
procedural rules, or that he is actually innocent. Clark v. Perez, 510 F.3d 382, 391–93 (2d Cir.
2008).
II.

Objection
Petitioner timely objected to the R&R. (Doc. #29). Specifically, petitioner asserts that

the evidence of attempted robbery was legally insufficient. This objection largely restates
petitioner’s original arguments. Accordingly, the appropriate standard of review for the R&R is
clear error.
In challenging Judge Smith’s finding that the Appellate Division’s determination
regarding the sufficiency of the evidence was objectively reasonable, petitioner reiterates his
argument that the crime was nothing more than a menacing offense. Petitioner argues, as he did
in his initial petition, that, after paying for his $10 taxi fare with a $100 bill, he was given

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incorrect change, whereupon he attempted to retrieve what was rightly due to him. In rejecting
this claim, Judge Smith carefully reviewed the evidence presented at trial, including evidence
that after petitioner and his accomplice told the taxi driver to pull over in a dark deserted
location, the accomplice placed what appeared to be a real submachine gun to the right side of
the driver’s head while the driver was making change. In that light, Judge Smith’s finding that
the Appellate Division’s determination was objectively reasonable was certainly not clearly
erroneous. Indeed, upon review of the record, the Court finds no error, clear or otherwise, in
Judge Smith’s thorough and well-reasoned R&R.
Petitioner did not object to Judge Smith’s finding that he failed to establish cause or
prejudice to overcome the Appellate Division’s determination that his challenge to the legal
sufficiency of the identification evidence was unpreserved for appellate review. Upon review of
the record, the Court likewise finds no error, clear or otherwise, in Judge Smith’s thorough and
well-reasoned R&R.
CONCLUSION
The R&R is adopted as the opinion of the Court for the reasons stated herein.
Accordingly, the petition for a writ of habeas corpus is DENIED.
The Clerk is instructed to enter judgment accordingly and close this case.
As petitioner has not made a substantial showing of the denial of a constitutional right, a
certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Love v. McCray, 413 F.3d
192, 195 (2d. Cir. 2005).

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The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would
not be taken in good faith; therefore, in forma pauperis status is denied for the purpose of an
appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
Dated: April 11, 2018
White Plains, NY
SO ORDERED:

____________________________
Vincent L. Briccetti
United States District Judge

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