Mack v. Lavalley
| Decision Date | 31 May 2016 |
| Docket Number | 1:13-cv-8194-GHW |
| Parties | ANTHONY MACK, Petitioner, v. SUPT. LAVALLEY, Respondent. |
| Court | U.S. District Court — Southern District of New York |
MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATION
On February 22, 2008, Petitioner Anthony Mack was convicted of Attempted Robbery in the Second Degree, in violation of New York Penal Law §§ 110.00 and 160.10(2)(b). The evidence at trial showed that Mr. Mack had attempted to rob a taxi driver after a lengthy cab ride. Mr. Mack's counsel argued that he had only attempted to evade paying the cab fare—not to take money from the driver—but the jury disagreed. Justice Renee A. White subsequently sentenced Mr. Mack as a persistent violent felony offender to a term of fourteen years to life in state prison. The Appellate Division affirmed his conviction and sentence on February 9, 2012. 938 N.Y.S.2d 72 (N.Y. App. Div., 1st Dept., 2012). Mr. Mack then sought leave to appeal to the New York Court of Appeals; that court denied leave on May 21, 2012. People v. Mack, 19 N.Y.3d 865, 947 N.Y.S.2d 413 (2012).
Mr. Mack filed this timely petition for a writ of habeas corpus under 28 U.S.C. § 2254. He raises three grounds for relief: first, that failure to instruct the jury that theft of services did not constitute attempted robbery denied him a fair trial; second, that he should have been permitted to introduce his own exculpatory statement made at the time of his arrest; and third, that he was improperly sentenced as a persistent violent felony offender in violation of the principles set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000).
On March 5, 2014, the Honorable Lewis A. Kaplan, United States District Judge, referred the petition to Magistrate Judge Henry B. Pitman. On April 17, 2014, this case was reassigned to me, and on November 24, 2015, Judge Pitman issued a Report and Recommendation ("R & R") recommending that I deny the petition. Mr. Mack filed objections to Judge Pitman's R&R. After reviewing the briefing, the R&R, the objections, and the underlying record, I adopt Judge Pitman's R&R and deny the petition for a writ of habeas corpus.
District courts may "accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge" 28 U.S.C. § 636(b)(1). A district court must "determine de novo any part of the magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3). "To the extent, however, that the party makes only conclusory or general arguments, or simply reiterates the original arguments, the Court will review the Report strictly for clear error." IndyMac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07-cv-6865-LTS-GWG, 2008 WL 4810043, *1 (S.D.N.Y. Nov. 3, 2008) (citation omitted); see also Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008) () (citation omitted).
Objections of parties appearing pro se are "generally accorded leniency" and construed to "raise the strongest arguments that they suggest." Milano v. Astrue, No. 05-cv-6527-KMW-DCF, 2008 WL 4410131, at *2 (S.D.N.Y. Sept. 26, 2008) (citation omitted). However, even pro se objections to an R & R "must be specific and clearly aimed at particular findings in the magistrate'sproposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument." Pinkney v. Progressive Home Health Servs., No. 06-cv-5023-LTS-JCF, 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008) (citation omitted).
Mr. Mack filed objections to the R & R on February 5, 2016, and supplemented those objections with an additional document styled as an "Objections Insert" postmarked February 22, 2016. Dkt. 34, 35. Although the Court had twice extended Mr. Mack's time to file his objections, all objections were due no later than February 10, 2016. Dkt. 30, 33. Thus, the Objections Insert, which was mailed twelve days after the already-extended deadline for objections, was untimely. Nonetheless, the Court has reviewed and considered both of Mr. Mack's submissions objecting to the R & R.
Mr. Mack raises objections to the R & R that track the three grounds that are the basis of his habeas petition: (1) the trial court's failure to deliver the jury instruction to which he argues he was entitled, (2) the exclusion of a post-arrest exculpatory statement he made, and (3) the sentencing enhancement applied to him as a persistent violent felony offender. As Mr. Mack himself acknowledges, the arguments in his objections with respect to his first point reiterate those presented in his original petition. Dkt. 34 ("Objections") at 24. This Court has reviewed Mr. Mack's petition, the objections regarding this first point, and the underlying record, and has reviewed the R & R for clear error and found none. With respect to the second and third points, however, Mr. Mack has raised specific objections separate from his original arguments.
Id. In response, Mr. Mack asserts in his objections that he did raise potential arguments in response to the procedural bar, that the procedural bar is not an adequate and independent state law ground, and that failure to review the claim would be a miscarriage of justice. Objections at 24. Although it is clear that Mr. Mack carefully read the R & R, he does not offer any explanation as to how his constitutional challenge to the trial court's ruling on this point was preserved. And, after reviewing the trial transcript, it is plain that defense counsel did not raise any constitutional challenges at the time the trial court ruled on this issue. Tr. 371-72.
Judge Pitman noted that the Appellate Division had held that Mr. Mack's "constitutional challenges to the court's ruling are unpreserved," People v. Mack, 938 N.Y.S.2d 72, 73 (N.Y. App. Div., 1st Dept., 2012), and then Judge Pitman correctly held that "New York's contemporaneous objection rule has routinely been upheld as an adequate and independent state procedural bar sufficient to preclude federal review." R & R at 28 (collecting cases); see also Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011) ( ) (citations omitted).
Because the contemporaneous objection rule is an independent and adequate state law ground, a court evaluating a habeas petition based on such a claim evaluates only whether the state court ruling at issue "serve[d] no perceivable state interest" or represented an "unyielding application of the general rule" regarding objections. Downs, 657 at 106 (citations omitted). This is not the rare case that falls into that "limited category." Id. at 104. To the contrary, here the Appellate Division'sholding that Mr. Mack's claim was unpreserved furthers the state's interest in requiring that the trial court have the opportunity to address the specific legal error raised on appeal. Therefore, the Court finds Mr. Mack's assertion that his second claim is not barred by an adequate and independent state ground to be without merit.
Finally, in Mr. Mack's objection to the R & R's conclusion that his sentencing did not violate clearly established law as set forth in Apprendi v. New Jersey, 530 U.S. 466 (2000), he concedes that the existence of his prior convictions was not a question that needed to go to the jury. Instead, he maintains that "the nature of the crime[s] and petitioners [sic] character and conduct" should have been put before the jury. Objections at 38-39. The Court understands that Mr. Mack contends that the trial court found additional facts, beyond his convictions, that contributed to his being sentenced as a persistent violent felony offender.
The Apprendi court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490-91. "If the jury's verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied." Cunningham v. California, 549 U.S. 270, 290 (2007).
Mr. Mack raises an Apprendi challenge to his sentencing; he appears to be under the impression that, in order to sentence him as a persistent violent felony offender, the trial judge had to engage in additional fact finding aside from the fact of his prior convictions, in violation of Apprendi. In this argument, Mr. Mack may be conflating two separate New York statutes, one of which did, in the past, raise questions about the constitutionality of persistent offender sentencing enhancements.
The State of New York has two...
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