Harris v. Yelich

Filing 37

DECISION AND ORDER adopting Report and Recommendations in its entirety re 19 Report and Recommendations.; denying 20 Motion for Hearing; denying Harriss petition for a writ of habeas corpus and dismissing the petition. Because petitioner ha s failed to make a substantial showing of a denial of a constitutional right, the Court declines to issue a certificate of appealability. See 28 U.S.C. § 2253. (Clerk to close case.) Copy of Decision and Order sent by first class mail to Petitioner. Signed by Hon. Michael A. Telesca on 1/17/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

JOHN W. HARRIS,
16-cv-00264
Petitioner,

DECISION AND
ORDER

-vsSUPERINTENDENT B. YELICH,
Respondent.

I.

Introduction
Pro se petitioner John W. Harris (“petitioner” or Harris)

filed a petition, dated April 1, 2016, seeking a writ of habeas
corpus pursuant to 28 U.S.C. § 2254 on the grounds that his
constitutional right to a speedy trial was denied and the integrity
of

the

state

Petitioner

is

court

grand

incarcerated

jury
as

proceedings

the

result

of

were
a

impaired.

judgment

of

conviction entered against him in Erie County for two counts of
criminal possession of a weapon in the second degree under New York
Penal Law §§ 265.03(3) and 265.02(1).
On September 7, 2016, United States Magistrate Judge

Hugh B.

Scott issued a Report and Recommendation (Docket No. 19), with
which familiarity by the parties is assumed, recommending that
Harris’s petition for writ of habeas corpus be denied.

The matter

is presently before this Court for determination of petitioner’s
Objections to the Report and Recommendation pursuant to 28 U.S.C.

§ 636(b)(1).

For the following reasons, the Court adopts the

Report and Recommendation in its entirety and denies the petition.
II.

Discussion
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Federal Rule of Civil

Procedure 72, this Court must make a de novo determination of those
portions

of

the

Report

and

Recommendation

(“R&R”)

to

which

objections have been made. However, “in a case where a party makes
only conclusory or general objections, or simply reiterates his
original arguments, the Court reviews the Report and Recommendation
only for clear error.” Butto v. Collecto, Inc., 290 F.R.D. 372, 379
(E.D.N.Y. 2013) (internal quotation marks omitted).

A court may

accept, reject, or modify, in whole or in part, the findings or
recommendations made by a magistrate judge. See Fed.R.Civ.P. 72(b).
In his timely habeas petition, Harris first contends that his
right to a speedy trial was violated when the prosecutor presented
his criminal charges to a grand jury before releasing to the trial
court or himself the DNA test results performed on the firearm
recovered by the arresting officer (Docket No. 1).

This claim is

based on the alleged violation of a court order wherein petitioner
agreed to waive his right to a speedy trial under Section 190.80 of
the New York Criminal Procedure Law pending DNA testing of the
weapon and notification of the results to the trial court.

The

second ground raised in Harris’s petition is that the integrity of
the grand jury proceeding was impaired when: (1) a police officer

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witness

provided

false

testimony

to

grand

jurors;

(2)

the

prosecutor failed to correct the officer’s testimony; and (3) the
prosecutor failed to present evidence to the grand jury that
excluded Harris as a contributor to the DNA sample recovered from
the firearm.
Respondent opposes the petition, arguing that Harris defaulted
on his claim that the prosecutor failed to notify the trial court
of the DNA test results by failing to bring this claim before a
state appellate court.

As to Harris’s second claim, respondent

argues that the errors in the grand jury testimony did not rise to
the level of a constitutional violation and Harris defaulted on the
DNA claim by again failing to raise it before a state appellate
court.
II.

Petitioner’s Objections to the Report and Recommendation
In the R&R, Judge Scott notes that a federal court may not

grant habeas corpus relief with respect to a claim that was
adjudicated on the merits in state court unless it: (1) “resulted
in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States;” or (2) “resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).

Habeas petitioners have “the

burden to show by clear and convincing evidence that the state

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court’s decision was defective in some way.” Smith v. Sullivan, 1
F.Supp.2d 206, 211 (W.D.N.Y. 1998).
Based on Judge Scott’s review of the record, however, he
concluded that Harris failed to preserve his contentions concerning
the notification of DNA results

or the prosecutor’s failure to

present the negative results to the grand jury because Harris
failed to raise these claims in his post-conviction motions and/or
on direct appeal. With respect to petitioner’s claim that a police
officer witness falsely testified before the grand jury that he
recognized

Harris

possession

of

a

in

connection

firearm,

when

with
the

a

prior

prior

conviction

conviction

for

actually

involved a stabbing, Judge Scott found that Harris failed to
demonstrate that any federal constitutional prejudice resulted from
the

inaccurate

testimony

concerning

the

nature

of

his

prior

conviction, which was presented as an element of his present
charges.
In his Objections to the R&R, petitioner asserts that: (1) the
indictment was obtained illegally when the prosecutor (a) violated
the trial court’s order requiring notification of the DNA results
prior to the grand jury presentation, (b) failed to present the
negative DNA results to the grand jury, and (c) failed to correct
the police officer’s grand jury testimony concerning the nature of
his prior conviction; and (2) his right to a speedy trial was

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violated because

his

waiver

of

this

right

was

predicated on

allowing time for the DNA testing to performed.
Petitioner’s objections concerning the grand jury proceedings
merely reassert the arguments in his petition and do not raise
specific objections to the findings in the R&R.
objections have been reviewed

As such, these

for clear error only.

After

careful review, the Court finds no such error and adopts Judge
Scott’s well-reasoned R&R in its entirety with respect to these
contentions.

This Court agrees with Judge Scott’s findings that

the alleged deficiencies in the state grand jury proceedings are
not cognizable in petitioner’s federal habeas corpus proceeding.
“Claims of alleged deficiencies in state grand jury proceedings are
not cognizable on federal habeas corpus review.” Hirsh v. McArdle,
74 F. Supp. 3d 525, 533 (N.D.N.Y. 2015), citing Lopez v. Riley, 865
F.2d 30, 32-33 (2d Cir.1989).

“Any grand jury deficiencies are

rendered harmless by a petit jury conviction assessing petitioner's
guilt under a heightened standard of proof.” Occhione v. Capra, 113
F. Supp. 3d 611, 631 (E.D.N.Y. 2015), certificate of appealability
denied (2015), citing Lopez, 865 F.2d 30, 32.
Petitioner’s remaining objection contests the R&R’s finding
that he failed to first exhaust all state court remedies by raising
a constitutional claim at each level of the state court system.
However, petitioner does not dispute Judge Scott’s findings that he
did not perfect his appeal to raise contentions about the misuse of

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the DNA results or “raise the fundamental issue of presentation to
the Grand Jury before the DNA results were available on appeal.”
Report and Recommendation, p. 8.

The state court record reveals

that, on August 19, 2015, the Appellate Division, Fourth Department
dismissed Harris’s direct appeal of the Erie County Court judgment
for failure to timely perfect the appeal.

Moreover, Judge Scott’s

finding that Harris did not raise the issue that the grand jury was
not informed of the DNA results in his post-conviction motions is
supported by this Court’s review of the record.

Consequently, the

Court confirms the findings of the R&R that Harris’s contentions
were not preserved for habeas review.

Finally, the Court agrees

that because the petition is being dismissed, an evidentiary
hearing under Rule 8(a) of the Rules Governing § 2254 Cases is not
warranted, and, therefore, that request is denied.
III. Conclusion
For the reasons stated above, the Court adopts Honorable Hugh
B. Scott’s Report and Recommendation in its entirety. Harris’s
petition for a writ of habeas corpus is denied, and the petition is
dismissed.

Because petitioner has failed to make a substantial

showing of a denial of a constitutional right, the Court declines
to issue a certificate of appealability. See 28 U.S.C. § 2253.
SO ORDERED.
s/ Michael A. Telesca
_______________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:

January 17, 2016
Rochester, New York.

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