Cooper v. Lapra
| Decision Date | 17 June 2020 |
| Docket Number | 18 Civ. 9405 (KPF) |
| Parties | KAZZIM COOPER, Petitioner, v. MICHAEL LAPRA, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Pending before the Court is the May 7, 2020 Report and Recommendation from United States Magistrate Ona T. Wang (the "Report" (Dkt. #29), attached), addressing Petitioner Kazzim Cooper's petition for writ of habeas corpus. Judge Wang recommends that Cooper's petition be denied without prejudice to refile once he has exhausted his claims in state court. Additionally, Judge Wang recommends that a certificate of appealability not be issued because Cooper has not made a substantial showing of the denial of a constitutional right.
The Court has examined the Report and notes that no party has objected within the fourteen-day period from its service, as provided by 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court finds no error in the Report and adopts it in its entirety.
The relevant facts underlying this action are set forth in the Report, and the Court assumes familiarity with them. A brief overview is set forth herein, drawing from the detailed recitation of the facts in the Report (see Report 1-4), as well as from entries in the public docket.
On October 10, 2014, Cooper was convicted before the New York Supreme Court, New York County, of assault in the first degree, N.Y. Penal Law § 120.10(1), and assault in the second degree, N.Y. Penal Law § 120.05(1). (Dkt. #1, 10; Report 3). The sentencing court ordered a psychiatric evaluation of Cooper and, on March 4, 2015, the court found Cooper incompetent to be sentenced. (Report 3). Cooper was committed to the New York Commissioner of Mental Health. (Id.). On August 14, 2015, Cooper was found to be competent to be sentenced, and was sentenced to concurrent sentences of six years' imprisonment plus five years' post-release supervision on the first-degree assault count, and six years' imprisonment plus three years' post-release supervision on the second-degree assault count. (Id.).
On October 24, 2017, Cooper commenced an action in the United States District Court for the Southern District of New York under 42 U.S.C. § 1983, claiming that his state custody was unconstitutional under the Thirteenth and Fourteenth Amendments to the Constitution. (Report 3 (citing Cooper v. Keyser, No. 17 Civ. 8209 (VSB) (S.D.N.Y. Apr. 18, 2018))). The court dismissed Cooper's complaint after finding that he "[did] not demonstrate that [he] has exhausted his available state remedies in accordance with 28 U.S.C. § 2254(b) and (c)." (Id.). On July 26, 2018, Cooper, who was represented by counsel, filed a direct appeal of his conviction to the Supreme Court of State of New York Appellate Division, First Department. (Dkt. #18-1; Report 4). The appeal is currently pending. (Dkt. #25-1; Report 4).
On October 15, 2018, Cooper filed the instant petition for habeas corpus, seeking to challenge his conviction and six-year sentence. (Report 1-2). Specifically, Cooper argues that his conviction is invalid because (i) he was incompetent to stand trial at the time that the court determined his guilt; and (ii) trial court could not "retrospectively" determine his competency during trial. (Dkt. #1; Report 2 (citing People v. Pena, 675 N.Y.S.2d 330 (1st Dep't 1998))). Thus, Cooper asserts that his commitment, sentencing, and incarceration violated the Thirteenth and Fourteenth Amendments and the double jeopardy clause of the Fifth Amendment. (Report 2).
On October 17, 2018, this matter was referred to Magistrate Judge Wang, who ordered Respondent Michael Lapra to file an answer to the petition and provide relevant transcripts and briefs. (Dkt. #4). On December 12, 2018, Lapra filed a letter seeking, inter alia, a limitation on the scope of his Answer and a dismissal without prejudice due to Cooper's failure to exhaust his state court remedies under 28 U.S.C. § 2254(a). (Dkt. #10; Report 2). Judge Wang directed Lapra to provide periodic status updates on Cooper's pending direct appeal. (Dkt. #24; see Dkt. #25-28). On February 18, 2020, the First Department issued a slip opinion assigning new counsel to Cooper and granting him until at least mid-June 2020 to perfect his appeal. (Dkt. #27).
On May 7, 2020, Judge Wang issued the Report and recommended that the Court dismiss the petition without prejudice. (See generally Report). Judge Wang found that the claims raised in the petition also formed the basis of his claims in the pending direct appeal in the FirstDepartment. (Dkt. #18-1). In light of this, Judge Wang concluded that Cooper had not exhausted his state remedies as to the claims he asserted, and his petition was not ripe for review. (Report 4, 5 (citing Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011))). Judge Wang further recommended that a certificate of appealability not be issued because Cooper had not "made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
Objections to the Report were due on or before May 21, 2020. (Id.). Neither party objected to the Report.
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 also 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 Ramirez v. United States, 898 F. Supp. 2d 659, 663 (S.D.N.Y. 2012) (citation omitted). 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 been committed.'" Easley v. Cromartie, 532 U.S. 234, 242 (2001) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). "A party's failure to object to a report and recommendation, after receiving clear notice of the consequences of such a failure, operates as a waiver of the party's right both to object to the report and recommendation and to obtain appellate review." Grady v. Conway,No. 11 Civ. 7277 (KPF) (FM), 2015 WL 5008463, at *3 (S.D.N.Y. Aug. 24, 2015) (citing Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992)).
Because Cooper has not filed an objection to the Report, he has waived his right to object and to obtain appellate review. Even so, the Court has reviewed the Report and finds that its reasoning is sound and it is grounded in fact and law. Having reviewed the record, the Court finds no clear error and adopts the Report in its entirety.
The Court has thus reviewed the Report for clear error and finds none. The Court agrees completely with Judge Wang's well-reasoned Report and hereby adopts its reasoning by reference. Accordingly, it is hereby ordered that the petition is DISMISSED without prejudice to refile once Cooper has exhausted his claims in state court.
The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case.
SO ORDERED.
Dated: June 17, 2020
New York, New York
/s/_________
KATHERINE POLK FAILLA
A copy of this Order was mailed by Chambers to:
Kazzim Cooper
New York, NY 1002618-CV-9405 (KPF) (OTW)
REPORT & RECOMMENDATION
I. Introduction
Petitioner Kazzim Cooper brings this habeas corpus proceeding in accordance with 28 U.S.C. § 2254, seeking to challenge his conviction and sentence for first- and second-degree assault.1 After a bench trial in New York County Supreme Court, Justice Robert Stoltz foundPetitioner guilty on October 10, 2014 on both counts. (ECF 18 at 696).2 On December 17, 2014, based on statements made by defense counsel and Petitioner, Justice Stoltz ordered a competency examination, over Petitioner's objection, pursuant to New York Penal Law § 730. (ECF 18 at 699-704). At a hearing on March 4, 2015, Petitioner was found unfit, and he was remanded to the Department of Mental Health. (ECF 18 at 707). On August 14, 2015, after finding Petitioner fit to be sentenced, Justice Stoltz sentenced Petitioner to six years in prison followed by five years' post-release supervision on the first-degree assault, and six years in prison followed by three years' post-release supervision on the second-degree assault, to be served concurrently. (ECF 18 at 714-717).
Petitioner now challenges his conviction in light of his incompetency finding. Specifically, Petitioner cites People v. Pena, 675 N.Y.S.2d 330 (N.Y. App. Div. 1st Dept. 1998) and other cases for the proposition that the trial court could not "retrospectively" determine his competency during trial, and thus his commitment, later sentencing and incarceration violated the Thirteenth and Fourteenth Amendments and the double jeopardy clause of the Fifth Amendment. (See ECF 1 and its attachments, passim).
Respondents argue that the petition must be dismissed for Petitioner's failure to exhaust state remedies as required by 28 U.S.C. § 2254(a). Because Petitioner has failed to exhaust his State court remedies challenging his conviction, I recommend that the petition be dismissed without prejudice.
II. Background
On October 10, 2014, Petitioner was convicted following a non-jury bench trial of one count of first-degree assault pursuant to N.Y. Penal Law § 120.10(1) and one count of second-degree assault pursuant to N.Y. Penal Law § 120.05(1). (ECF 1 at 10; ECF 10 at 1). Petitioner alleges the court, on December 17, 2014, sua sponte "set aside" Petitioner's verdict pursuant to New York Criminal Procedure Law § 330.30 (1), but the record does not reflect this. (ECF 1 at 10; ECF 1-4 at 1). Instead, during that hearing the...
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