Moore v. Scully
| Decision Date | 27 February 1997 |
| Docket Number | No. 89 Civ. 0546 (DNE).,89 Civ. 0546 (DNE). |
| Citation | 956 F.Supp. 1139 |
| Parties | Stanley MOORE, Petitioner, v. Charles SCULLY, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Stanley Moore, Pine City, NY, pro se.
Presently before this Court is the habeas corpus petition of Stanley Moore ("petitioner" or "Moore"), pursuant to Title 28, United States Code, Section 2254, seeking to vacate a judgment of conviction imposed on him by the Supreme Court of the State of New York, Bronx County, on February 24, 1983, for burglary in the first degree (New York Penal Law § 140.30[3]). and two counts of robbery in the first degree (New York Penal Law § 160.15[3]). Petitioner's conviction arose out of an incident that occurred on May 25, 1982. Petitioner was charged with driving a getaway car after his two co-defendants had burglarized a dwelling and robbed its occupants. The Appellate Division, First Department, affirmed petitioner's conviction without opinion, People v. Moore, 133 A.D.2d 551, 519 N.Y.S.2d 159 (N.Y.App.Div.1987), and the New York Court of Appeals denied petitioner's leave to appeal. People v. Moore, 70 N.Y.2d 1009, 526 N.Y.S.2d 944, 521 N.E.2d 1087 (N.Y.1988).
On January 24, 1989, petitioner filed the instant habeas corpus petition. On September, 1, 1989, Moore requested that his petition be held in abeyance so that he could challenge the constitutionality of his sentence in the New York State courts. On January 18, 1990, this Court adopted a recommendation of United States Magistrate Judge Nina Gershon ("Magistrate Judge Gershon"), and placed this case on the suspense docket.
Petitioner then moved in the Supreme Court, Bronx County, to vacate the judgment and set aside his sentence, pursuant to New York Criminal Procedure Law sections 440.10 and 440.20. (Report and Recommendation of United States Magistrate Judge Nina Gershon, Moore v. Scully, 89 Civ. 0546 ("May 1994 Report") at 2 (May 4, 1994).) Petitioner's motion was denied on April 4, 1990. Id. On April 23, 1990, petitioner sought leave to appeal the denial of his motion to the Appellate Division, First Department, pursuant to New York Criminal Procedure Law section 460.15. Id. It is undisputed that petitioner's application was denied. Id. at 2 & n. 1.
On February 11, 1991, petitioner moved for a writ of error coram nobis in the Appellate Division, First Department, and on February 21 and May 6, 1991, filed "addendums" to his application. Id. at 2. The Appellate Division, First Department, denied petitioner's application for a writ of error coram nobis on May 30, 1991. Id. Petitioner filed a second petition for a writ of error coram nobis in the Appellate Division, First Department, on March 5, 1992. The court denied this second application on June 25, 1992. Id.
On May 8, 1992, petitioner moved in the Supreme Court of the State of New York, Bronx County, for disclosure of his presentence report, pursuant to section 390.50 and 390.60 of the New York Criminal Procedure Law. Id. at 2-3. Petitioner argued that he was sentenced on the basis of misinformation in the presentence report, and that his presentence report was confused with his brother's. Id. at 3. The motion for disclosure was granted on June 24, 1992. Id.
On November 12, 1992, petitioner reactivated the instant case by filing an amended petition. In this petition, Moore seeks this Court's review of his state conviction on five grounds: (1) the element of intent, necessary to prove guilt, cannot be inferred and was not established beyond a reasonable doubt; (2) the trial judge made several prejudicial errors in his charge to the jury; (3) there was prosecutorial misconduct at trial and on summation; (4) petitioner was denied effective assistance of both trial and appellate counsel; and (5) the maximum sentence imposed violated due process. Id.
On May 4, 1994, Magistrate Judge Gershon recommended that Moore's petition be dismissed without prejudice "for petitioner's failure to exhaust state remedies as to all of his claims," under Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). (May 1994 Report at 11-12.) Petitioner objected to Magistrate Judge Gershon's recommendation on grounds that "[e]ach of the alleged unexhausted claims referred to by Magistrate Gershon, under the circumstances, were adequately put before the state's highest court upon which relief could obtain," and that this Court thus should find "that the petitioner did exhaust his state remedies and rule thereon." (Objection to Magistrate Report and Recommendation, Moore v. Scully, 89 Civ. 0546, at 1-3 (May 13, 1994).)
In an order dated June 21, 1994, this Court referred Moore's petition back to Magistrate Judge Gershon for consideration of petitioner's claim on the merits. (Order, Moore v. Scully, 89 Civ. 0546 (June 21, 1994).) On November 22, 1995, Magistrate Judge Gershon issued a second Report and Recommendation regarding petitioner's claims. (Report and Recommendation of United States Magistrate Judge Nina Gershon, Moore v. Scully, 89 Civ. 0546 ("November 1995 Report") (Nov. 22 1995).) In the November 1995 Report, Magistrate Judge Gershon addressed the merits of each of petitioner's claims. Based on the relevant legal standards, Magistrate Judge Gershon rejected each of petitioner's claims, and found that his petition for a writ of habeas corpus should be denied. Id. at 24. On December 8, 1995, petitioner filed objections to the November 1995 Report. (Objection to Magistrate Report and Recommendation, Moore v. Scully, 89 Civ. 0546 (Dec. 4, 1995).)
Magistrate judges are empowered by statute to preside over pretrial matters on appointment by a district judge. 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72. Where, as here, a Magistrate Judge is "assigned without consent of the parties to hear a pretrial matter dispositive of a claim or defense of a party or a prisoner petition challenging the conditions of confinement ... [t]he magistrate judge shall enter into the record a recommendation for disposition of the matter, including proposed findings of fact where appropriate." Fed.R.Civ.P. 72(b).
Under Federal Rule of Civil Procedure ("Rule") 72(b), and Title 28, United States Code, Section 636(b)(1)(A), a district court evaluating a magistrate judge's recommendation is permitted to adopt those portions of the recommendation to which no specific objection is made, as long as those sections are not clearly erroneous. Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 471-72, 88 L.Ed.2d 435 (1985); see also Ehinger v. Miller, 942 F.Supp. 925, 927 (S.D.N.Y.1996); Washington v. Lenihan, 87 Civ. 4770, 1996 WL 345950 (S.D.N.Y. June 21, 1996). Where a party makes a "specific written objection" within "[ten] days after being served with a copy of the [magistrate judge's] recommended disposition," Fed.R.Civ.P. 72(b), however, the district court is required to make a de novo determination regarding those parts of the report. United States v. Raddatz, 447 U.S. 667, 676, 100 S.Ct. 2406, 2412-13, 65 L.Ed.2d 424 (1980).
The term "de novo determination" has Id. at 690, 100 S.Ct. at 2419, 65 L.Ed.2d 424 (Stewart, J., dissenting); see also Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (11th Cir.1988). Therefore, de novo review "means reconsideration afresh by the district judge in this sense: no presumption of validity applies to the magistrate's findings or recommendations." 7 Pt. 2 James Wm. Moore, Moore's Federal Practice, ¶ 72.04[10.-2], at 72-96 (1995). If the district court disagrees with the magistrate judge's proposals, or any part of them, the judge is free to substitute his own view for that of the magistrate judge without any threshold finding whatsoever. Id. However, while the district court is not required to conduct a new hearing regarding a party's objections to the magistrate judge's recommendations, it is required to review the record of the proceedings before the magistrate judge Id. at ¶ 72.04[10.-2], at 72-98.
In addition, "the district judge retains the power to engage in sua sponte review of any portion of the magistrate's report and recommendation, regardless of the absence of objections." 7 Pt. 2 Moore's Federal Practice, ¶ 72.04[10.-1], at 72-95. Such sua sponte review "may be under a de novo standard, or any lesser standard of review." Id. In making its review, "[t]he district judge may accept, reject or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b).
Because plaintiff timely filed objections to the Report, this Court is required to undertake a de novo review of the motions underlying Magistrate Judge Gershon's Report. Fed.R.Civ.P. 72(b). This Court first will review the facts underlying Magistrate Judge Gershon's November 1995 Report before reviewing the findings and recommendations contained in her November 1995 Report.
Petitioner and his brother Terry Moore ("Moore") were tried jointly for the May 25, 1982, robbery of Joseph Bellantone and his sister Grace Bellantone in Joseph Bellantone's apartment, located in a three-family house. (November 1995 Report at 2.) Joseph Bellantone and his sister Rose Manzella, who lived downstairs but was present during the robbery, identified Terry Moore as one of two men who entered the Bellantone home and committed the robbery. Id. Roberto Gonzalez and Peggy Lee, neighbors of the Bellantones, testified that they saw defendant Stanley Moore driving the "getaway" car for the two robbers. Linda Ray, an employee of Williams Garage, testified that Stanley Moore leased a cab from the Garage which fit the description of the car seen by Gonzalez and Lee. Id.
Joseph Bellantone...
To continue reading
Request your trial
-
Edwards v. Fischer
...right." McShall v. Henderson, 526 F.Supp. 158, 161 (S.D.N.Y.1981)(quoting N.Y.Crim. Proc. Law § 310.30); see also Moore v. Scully, 956 F.Supp. 1139, 1147 (S.D.N.Y.1997)(a court is afforded "a broad range of discretion" when responding to a jury request). Indeed, "[o]nce the judge has made a......
-
Thomas v. McKee, Civil No. 2:11-CV-15123
...would be insufficient, in and of itself, to support a finding of ineffective assistance of trial counsel. See Moore v. Scully, 956 F. Supp. 1139, 1150-51 (S.D.N.Y. 1997). Although counsel's conduct before the jury may have been combative, he was following a technique often employed by defen......
-
Whaul v. Griffin
...are premised on the idea that Boyce misidentified Whaul—were reasonably presented as plausible alternatives. Cf. Moore v. Scully, 956 F. Supp. 1139, 1151-52 (S.D.N.Y. 1997) (finding that counsel acted reasonably by positing alternative arguments in an attempt to best represent her client).2......
-
Gordon v. Bradt
...but rather represents counsel's attempt to raise every alternative argument on her client's behalf." Moore v. Scully, 956 F. Supp. 1139, 1151-52 (S.D.N.Y. 1997) (Edelstein, J.). And while Gordon may have preferred that his appellate counsel argue his innocence, "[d]ecisions concerning which......