Scott v. Graham, No. 1:2016cv02372 - Document 42 (S.D.N.Y. 2018)

Court Description: OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION 39 Report and Recommendations. For the foregoing reasons, the Court adopts Magistrate Judge Cott's thoughtful and comprehensive Report in full. Accordingly, it is hereby ordered that P etitioner's petition for a writ of habeas corpus is DENIED. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. The Court further certifies, pursuant to 28 U.S.C. § 1915(a) (3), that any appeal from this Opinion and Order would not be taken in good faith; therefore, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge Katherine Polk Failla on 10/22/2018) Copies Mailed By Chambers. (rro) Transmission to Orders and Judgments Clerk for processing.

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Scott v. Graham Doc. 42 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------------------------- X : ANDRE SCOTT, : : Petitioner, : : v. : : HAROLD D. GRAHAM, SUPERINTENDENT : : OF AUBURN C.F., : Respondent. : : ------------------------------------------------------- X USDC SDNY DOCUMENT ELECTRONICALLY FILED DOC #: _________________ 22, 2018 DATE FILED: October ______________ 16 Civ. 2372 (KPF) (JLC) OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION KATHERINE POLK FAILLA, District Judge: Pending before the Court is the June 29, 2017 Report and Recommendation of United States Magistrate Judge James L. Cott (the “Report” (Dkt. #39)), recommending that Petitioner Andre Scott’s petition for habeas corpus relief under 28 U.S.C. § 2254 (the “Petition” (Dkt. #1)) be denied in its entirety. The Court has reviewed both the Report and Petitioner’s July 10, 2017 Objection to that Report (the “Objection” (Dkt. #40)), and finds that the Report should be adopted in full. Accordingly, the Petition is denied. BACKGROUND This summary draws its facts from the detailed recitation in Judge Cott’s Report. (Report 1-13). On December 1, 2009, Petitioner was indicted by a grand jury for rape, sexual abuse, and assault arising from two alleged altercations with his girlfriend earlier that year. (Id. at 6). In the first, alleged to have occurred on August 22, 2009, Petitioner raped his girlfriend after pushing her down onto a bed and choking her. (Id. at 3). In the second, Dockets.Justia.com alleged to have occurred on October 29, 2009, Petitioner repeatedly punched, kicked, and hit his girlfriend because she had not called him “all day” and “was ignoring his calls.” (Id. at 4). On April 14, 2011, after being convicted by a jury of all charges, Petitioner was sentenced to 20 years of incarceration followed by 10 years of post-release supervision. (Id. at 7-8). Petitioner appealed to the Appellate Division, which affirmed the convictions on March 31, 2015. See People v. Scott, 126 A.D.3d 645 (1st Dep’t 2015). On June 15, 2015, the Court of Appeals denied leave to appeal. See People v. Scott, 24 N.Y.3d 1171 (2015). The Petition in this case raises five grounds for relief that echo Petitioner’s arguments to the First Department: (i) the prosecution suppressed exculpatory footage during Petitioner’s trial, thereby violating his due process rights; (ii) the trial court violated Petitioner’s right to present a defense by excluding from evidence a controlled call from the victim to Petitioner; (iii) the verdict was against the weight of the evidence; (iv) the aggravated harassment statute under which Petitioner was convicted had been held to be unconstitutional; and (v) Petitioner’s sentence should be reduced because it involved a substantial trial penalty and was not consonant with mitigating facts. (Report 11-12). The Report found each of these bases to be insufficient. (Id. at 20-58). Specifically, Judge Cott found Petitioner’s second and fourth claims to be procedurally barred, thereby agreeing with the First Department’s determination that Petitioner had failed to comply with New York’s 2 contemporaneous objection rule. (Id. at 20-36). He then found that Petitioner’s first claim and a portion of his fifth claim, while both exhausted, were not meritorious. (Id. at 37-47). Finally, Judge Cott found that Petitioner’s third claim, as well as certain of his sentencing challenges, were not cognizable on habeas review. (Id. at 47-58). On July 17, 2017, Petitioner timely filed his Objection to the Report. (Dkt. #40). While the Objection is not a model of clarity, the Court construes Petitioner’s argument as follows: Because Petitioner and the victim engaged in a consensual sexual relationship prior to, and after, the August 22, 2009 incident, the sexual encounter on that date was consensual as well. DISCUSSION A court may accept, reject, or modify, in whole or in part, the findings or recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). A court may accept those portions of a report to which no “specific, written objection is made,” as long as the factual and legal bases supporting the findings are not clearly erroneous. See Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1997) (quoting Fed. R. Civ. P. 72(b)); see also Thomas v. Am, 474 U.S. 140, 149 (1985). A magistrate judge’s decision is clearly erroneous only if the district court is “left with the definite and firm conviction that a mistake has 3 been committed.” Easley v. Cromartie, 532 U.S. 234, 235, 242 (2001) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). To the extent that a petitioner makes specific objections to a magistrate judge’s findings, the reviewing court must undertake a de novo review of the objections. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Pro se filings are read liberally and interpreted “to raise the strongest arguments that they suggest.” Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (internal quotation marks and citation omitted). However, where objections are “conclusory or general,” or where the petitioner “simply reiterates his original arguments,” the report should be reviewed only for clear error. Walker v. Vaughan, 216 F. Supp. 2d 290, 292 (S.D.N.Y. 2002) (internal quotation marks and citation omitted). Because Petitioner’s Objection is both conclusory and general, this Court has reviewed the Report for clear error. The Court finds that the Report’s reasoning — which is set forth in commendable detail over nearly 28 of the Report’s 59 pages — is sound and grounded in fact and law. Accordingly, the Court finds no clear error and adopts the Report in its entirety. CONCLUSION For the foregoing reasons, the Court adopts Magistrate Judge Cott’s thoughtful and comprehensive Report in full. Accordingly, it is hereby ordered that Petitioner’s petition for a writ of habeas corpus is DENIED. The Clerk of 4 Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. The Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Opinion and Order would not be taken in good faith; therefore, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. Dated: October 22, 2018 New York, New York __________________________________ KATHERINE POLK FAILLA United States District Judge Copies of this Order and the Report Were Sent by First Class Mail to: Andre Scott 11-A-1841 Auburn Correctional Facility P.O. Box 618 Auburn, NY 13024 5

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