Elliot v. Kirkpatrick

Decision Date13 November 2020
Docket Number17 Civ. 7529 (KPF)
PartiesLAWRENCE ELLIOT, Petitioner, v. MICHAEL KIRKPATRICK, Respondent.
CourtU.S. District Court — Southern District of New York


Pending before the Court is the June 19, 2019 Report and Recommendation from United States Magistrate Judge Kevin Nathaniel Fox (the "Report" (Dkt. #46), attached), addressing Petitioner Lawrence Elliot's petition for a writ of habeas corpus (the "Petition"). Judge Fox recommends that the Petition be dismissed in its entirety.

The Court has examined the Report, Petitioner's August 2, 2019 objections to the report (Dkt. #50),1 and Respondent's September 3, 2019 submission in response to the objections (Dkt. #51), as well as the parties' submissions before Judge Fox and the underlying record of the stateproceedings. 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 recitation of the facts in the Report (see Report 1-2), as well as from entries in the public docket.

On November 12, 2010, Petitioner was taken into custody in connection with an ongoing investigation into a sexual assault and robbery that had occurred the previous day. (Dkt. #2 at 7-8). According to testimony provided by New York City Police Department ("NYPD") detectives, while in an interview room at the police station, Petitioner was asked by a detective for his identification, and responded that he had identification in a "pouch" on his person. (Id. at 8-9). Upon taking the pouch from Petitioner and emptying its contents onto a table, the detective found the victim's credit and debit cards. (Id. at 9). The pouch and its contents were later vouchered by another NYPD detective. (Id. at 10). The following day, the victim identified Petitioner as her attacker in a lineup, and Petitioner was placed under arrest. (Id. at 9).

On December 3, 2010, a New York County grand jury charged Petitioner with three counts each of predatory sexual assault and first-degree criminalsexual act; two counts each of first-degree sexual abuse and fourth-degree criminal possession of stolen property; and one count each of first-degree robbery, first-degree burglary, second-degree kidnapping, and second-degree strangulation. (Dkt. #10 at 2-3). On May 14, 2013, Justice Melissa C. Jackson of the New York County Supreme Court held an evidentiary hearing on Petitioner's motion to suppress the credit and debit cards recovered from his pouch. (See Dkt. #11-4 at 1-107). Three NYPD detectives testified at the hearing, while the defense presented no evidence. (See generally id.). Justice Jackson subsequently denied Petitioner's suppression motion in a ruling from the bench, concluding that the search of the pouch was a valid search incident to arrest. (Id. at 97-104). Alternatively, Justice Jackson found that the victim's cards were "an inevitable discovery" in the course of a proper pedigree inquiry, because the cards had been reported stolen and the police knew that Petitioner had used and possessed them from video surveillance footage of him at an ATM taken prior to his arrest. (Id. at 104).

At a pretrial hearing on June 12, 2013, the Assistant District Attorney informed the court that she had discussed a potential plea with defense counsel, and understood that Petitioner was not amenable to the prosecution's offer. (Dkt. #11-4 at 111). In response, the court sought to confirm that Petitioner understood the "maximum" sentence that would accompany a conviction after trial. (Id.). The court noted in this regard that Petitioner would face "significant consequences should he be convicted at trial," and determinedthat Petitioner was facing an aggregate prison sentence of 125 years to life if convicted of all charges in the indictment. (Id. at 111-12).

On June 18, 2013, after a series of pretrial decisions unfavorable to Petitioner and the completion of jury selection (see generally Dkt. #11-4, 11-5, 11-6), defense counsel informed the court that Petitioner wished to withdraw his previously entered plea of not guilty and enter into a plea agreement negotiated with the prosecution (see Dkt. #11-6 at 70). Following a plea colloquy, Petitioner proceeded to plead guilty to one count of predatory sexual assault under New York Penal Law § 130.95(3) and waived his right to appeal. (Report 1; see also Dkt. #11-6 at 70-75).

At Petitioner's sentencing on July 10, 2013, he made a pro se motion to withdraw his guilty plea, arguing that it had been coerced. (Dkt. #11-6 at 88-92). Justice Jackson denied Petitioner's motion and sentenced him to a term of incarceration of 13 years to life, in accordance with the terms of his plea agreement. (Report 1; Dkt. #11-6 at 93-94).3

Thereafter, Petitioner, with the assistance of counsel, appealed his conviction to the Appellate Division, First Department. (See Dkt. #11-3 at 3-48). Petitioner raised two arguments on appeal. First, Petitioner argued that his plea should be vacated as involuntary because the trial court hadthreatened to give him the maximum sentence of 125 years to life if he were convicted at trial, and coerced him into pleading guilty by offering to endorse the significantly lower sentence proposed by the prosecution for his pretrial plea. (Id. at 25-30). Second, he argued that the trial court erred in denying his pretrial motion to suppress credit cards recovered as the result of a warrantless search where: (i) there was no exigency justifying a search incident to arrest; (ii) the prosecutor did not proffer an established inventory search procedure; (iii) the inevitable discovery doctrine did not apply to evidence recovered during an illegal search; and (iv) the evidence was not in "plain view" from a lawful vantage point when seized. (Id. at 31-45).

On March 31, 2016, the Appellate Division affirmed Petitioner's conviction on appeal. (Report 1 (citing People v. Elliot, 27 N.Y.S.3d 386, 386 (1st Dep't 2016))). The court held that Petitioner had failed to preserve his involuntary plea claim, and alternatively that the argument was meritless. (Id. at 1-2). The Court further held that Petitioner's waiver of his right to appeal foreclosed review of his suppression claim, and alternatively that his suppression claim was meritless. (Id. at 2). Petitioner sought leave to appeal the Appellate Division's decision, but the New York Court of Appeals denied his application. (Id. at 2 (citing People v. Elliot, 27 N.Y.3d 1131 (2016))).

On September 25, 2017, Petitioner filed the instant Petition for habeas corpus pursuant to 28 U.S.C. § 2254, raising the same two claims that he asserted on direct appeal. (Dkt. #2). On October 6, 2017, the Court granted Petitioner's request to proceed in forma pauperis (Dkt. #3), and referred thematter to Magistrate Judge Fox for a report and recommendation (Dkt. #5). On December 22, 2017, Respondent submitted an answer (Dkt. #11), and an opposition brief (Dkt. #10). Petitioner submitted a reply on June 7, 2019. (Dkt. #45).4

On August 19, 2019, Judge Fox issued the Report and recommended that the Court dismiss the Petition in its entirety. (Report 6). Petitioner's objections to the Report were filed on August 9, 2019. (Dkt. #50). Respondent submitted an opposition to the objections on September 3, 2019 (Dkt. #51), to which Petitioner filed a reply on September 19, 2019 (Dkt. #52).

A. Applicable Law

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 thefindings 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)).

Where a party submits timely objections to a report and recommendation, as Petitioner has done here, the Court is obligated to review the contested issues de novo. See Fed. R. Civ. P. 72(b)(3); Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998). 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); see also Phillips v. Reed Grp., Ltd., 955 F. Supp. 2d 201, 211 (S.D.N.Y. 2013) ("Objections that are merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original papers will not suffice to invoke de novo review." (citation, quotation marks, and alteration omitted)). And although 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) (citation omitted), "even a pro se party's objections ... must be specific and clearly aimed at particular findings in the magistrate's proposal[,]" DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 340 (S.D.N.Y. 2009) (citation omitted). Finally, "it is sufficientthat the court arrive at its own independent conclusion regarding those portions of the report to which objections are made"; the court "need not conduct a de novo hearing on the matter." In re Hulley Enters. Ltd., 400 F. Supp. 3d 62, 69 (S.D.N.Y. 2019) (quoting Nelson v. Smith, 618 F....

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