Agosto v. Miller

Filing 51

DECISION AND ORDER adopting Magistrate Judge Jeremiah J. McCarthy's Report and Recommendation 36 . Petitioner's application for a writ of habeas corpus under 28 U.S.C. § 2254 is denied. The Clerk of Court shall take all steps necessa ry to close the case. A copy of the Decision and Order along with with docket entry have been mailed to Rafael Agosto, 95A3133, GREAT MEADOW CORRECTIONAL FACILITY, Box 51, Comstock, NY 12821-0051. SO ORDERED. Signed by Hon. Richard J. Arcara on 4/26/2018. (LAS)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

RAFAEL AGOSTO,
Petitioner,
DECISION AND ORDER
16-CV-568-A

v.
CHRISTOPHER MILLER, Superintendent,
Great Meadow Correctional Facility,
Respondent.

This pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 filed by
petitioner Rafael Agosto was referred to Magistrate Judge Jeremiah J. McCarthy
pursuant to 28 U.S.C. § 636(b)(1)(B) for proposed findings of fact and
recommendations for its disposition. Petitioner Agosto collaterally attacks his criminal
conviction and imprisonment for Promoting Prison Contraband in the First Degree in
violation of New York Penal Law § 205.25(2). For the reasons that follow, the Court
adopts a Report and Recommendation (Dkt. No. 36) of the Magistrate Judge, and the
petition for a writ of habeas corpus is denied.
Petitioner Agosto’s prison-contraband conviction was entered in Chemung
County Supreme Court based upon conduct of the petitioner while he was imprisoned
at the Elmira Correctional Facility for murder, assault, and weapons-possession
convictions. Petitioner argues that the Chemung County Supreme Court lacked
jurisdiction because he was wrongfully convicted of the earlier crimes, and was
therefore unconstitutionally imprisoned at the Elmira Correctional Facility in Chemung
County. He also claims that he had been transferred to the Elmira Correctional Facility

from another jail outside that county contrary to law governing his jail placement at the
time he was caught with the contraband.
Petitioner Agosto raises additional arguments that a state-court habeas corpus
proceeding under Article 70 of the New York Civil Practice Law and Rules that he filed
in Chemung County, and that denied a collateral attack on the earlier murder, assault,
and weapons-possession convictions, was entered without subject matter jurisdiction
because it was filed in the wrong venue. Finally, petitioner Agosto argues that this
Court lacks subject matter jurisdiction over his § 2254 petition.
On January 16, 2018, Magistrate Judge McCarthy filed a Report and
Recommendation (Dkt. No. 36) recommending that the habeas corpus petition be
denied. Petitioner Agosto filed timely objections (Dkt. No. 40), as well as numerous
other submissions to support his objections and to preserve arguments he has made in
this and other proceedings.
Pursuant to 28 U.S.C. §636(b)(1), the Court makes a de novo determination of
those portions of the Report and Recommendation to which objections have been
made. The Court has given the pro se objections of petitioner Agosto the strongest
interpretation in his favor that the objections suggest. See e.g., Soto v. Walker, 44 F.3d
169, 173 (2d Cir. 1995).
Upon de novo review, and after considering the parties’ arguments, the Court
hereby adopts Magistrate Judge McCarthy’s proposed findings and recommendations,
and the application for a writ of habeas corpus under 28 U.S.C. § 2254 is denied.

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Petitioner Agosto has only advanced arguments that misconstrue applicable law1. He
has made no substantial showing of a denial of a constitutional right, and no certificate
of appealability shall issue. The Court certifies, pursuant to 28 U.S.C. § 1915(a), that
an appeal from this order would not be taken in good faith. Coppedge v. United States,
369 U.S. 438 (1962).
IT IS SO ORDERED.

____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: April 18, 2018

1

For example, petitioner confuses venue requirements applicable to his Article 70
special proceeding, which he waived if he commenced the proceeding in Chemung County
while detained elsewhere in New York, see e.g., People v. Stewart, 83 A.D.2d 713 (3d Dep’t
1981), with the requirements of subject matter jurisdiction, which can never be waived. See
e.g., Editorial Photocolor Archives v. Granger Collection, 61 N.Y.2d 517, 523 (1984).
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