Reyes v. Harold

• Docket Number: 17 Civ. 2881 (KPF) (DF)
• Decision Date: 22 March 2022
• Citation: Reyes v. Harold, 17 Civ. 2881 (KPF) (DF) (S.D. N.Y. Mar 22, 2022)
• Parties: TEOFILO REYES, Petitioner, v. GRAHAM D. HAROLD, Respondent.
• Court: U.S. District Court — Southern District of New York

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TEOFILO REYES, Petitioner, v. GRAHAM D. HAROLD, Respondent.

No. 17 Civ. 2881 (KPF) (DF)

United States District Court, S.D. New York

March 22, 2022

Mr Teofilo Reyes Respondent's counsel

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

KATHERINE POLK FAILLA, DISTRICT JUDGE

Pro se petitioner Teofilo Reyes brought a petition pursuant to 28 U.S.C. § 2254 (the “Petition” (Dkt. #2)) seeking to vacate several New York State criminal convictions on the grounds of ineffective assistance by his trial and appellate counsel. Now pending before this Court is the February 4, 2022 Report and Recommendation issued by United States Magistrate Debra Freeman (the “Report” (Dkt. #25), copy attached), which recommends that the Petition be dismissed in its entirety. 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 full.

By way of background, Petitioner filed the Petition on April 13, 2017 (Dkt. #1), and on May 3, 2017, then-Chief Judge Colleen McMahon directed Petitioner to complete a declaration concerning the timeliness of the Petition (Dkt. #4). After Petitioner submitted his declaration (Dkt. #5), the case was assigned to the undersigned and Respondent was ordered to answer (Dkt. #8).

Respondent filed his response on December 15, 2017 (Dkt. #15-20), and Petitioner filed his reply on January 18, 2018 (Dkt. #21). This Court referred the matter to Judge Freeman for a report and recommendation on June 5, 2017 (Dkt. #5), and Judge Freeman issued the Report on February 4, 2022 (Dkt. #25). The Report itself is 59 pages long, and includes detailed summaries of both the underlying offense conduct and Petitioner's prosecution, including his many post-conviction applications for relief. (Report 2-38). The deadline for the parties to file objections to the report was February 18, 2022. (See Id. at 58-59). To date, no objections have been filed.

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 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)).

As neither party has submitted objections to the Report, review for clear error is appropriate. See Phillips v. Reed Grp., Ltd., 955 F.Supp.2d 201, 211 (S.D.N.Y. 2013). The Court has reviewed the Report and finds that its reasoning is sound and that it is grounded in fact and in law. More specifically, the Court agrees with Judge Freeman's careful analysis of the legal issues raised by Petitioner, and with her ultimate conclusions that Petitioner received the effective assistance of counsel both at the trial level and at the appellate level. (Report 48-58). Having reviewed the record, the Court finds no clear error and adopts the Report in its entirety.

CONCLUSION

The Court agrees completely with Judge Freeman's well-reasoned Report and hereby adopts its reasoning by reference. Accordingly, it is ordered that the Petition be dismissed in its entirety.

The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. The Clerk of Court is further directed to mail a copy of this Opinion and Order to Petitioner at his address of record.

SO ORDERED.

REPORT AND RECOMMENDATION

TO THE HONORABLE KATHERINE POLK FAILLA, U.S.D.J.

Proceeding pro se, petitioner Teofilo Reyes (“Petitioner”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, following his conviction by a jury of three counts of burglary in the second degree (Penal Law § 140.25[2]), two counts of possession of burglar's tools (Penal Law § 140.35), and one count of criminal possession of stolen property in the fifth degree (Penal Law § 165.40). (See Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, dated April 13, 2017 (“Petition” or “Pet.”) (Dkt. 2).) For these crimes Petitioner was sentenced, as a persistent violent felon, to an aggregate prison term of 16 years to life. Petitioner is currently incarcerated at the Downstate Correctional Facility (“Downstate”) in Fishkill, New York. In his Petition, Petitioner asserts the following claims: (1) that trial counsel was ineffective for failing (a) to investigate and prepare a defense, (b) to inform the court that petitioner had “fired” him, (c) to raise with the court an issue of subject matter jurisdiction, (d) to object to evidence introduced at a suppression hearing, and (e) to challenge introduction of petitioner's prior convictions; and (2) that appellate counsel was ineffective for failing to raise, on direct appeal, a claim regarding the trial court's response to a juror's question. (Pet., at 6-11.)

In opposition, respondent Graham D. Harold (“Respondent”)^[1] argues that Petitioner received the effective assistance of both trial and appellate counsel. (See Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, dated Dec. 15, 2017 (“Resp. Mem.”) (Dkt. 15).)

For the reasons discussed below, I recommend that the Petition be dismissed in its entirety.

BACKGROUND

A. Factual Background

The facts summarized herein are taken from the evidence at Petitioner's trial, which was conducted on October 31, 2011.^[2]

1. The Khandewal Burglary

In the afternoon of April 6, 2010, Dennis O'Sullivan (“O'Sullivan”), associate director of investigations at Columbia University, was driving around the area near Columbia. (Trial Tr., at 326, 328-29.) As he was driving, O'Sullivan saw a man, later identified as Petitioner, on the corner of 122nd Street and Morningside Drive, talking on a cell phone and looking back behind him. (Id., at 329-30.) O'Sullivan watched as Petitioner hailed a taxi, walked a “short distance” away, and returned carrying a “large object” that appeared to be a large TV, “covered with a multi-colored blanket.” (Id., at 330.) Petitioner “threw a backpack into the back seat” and then struggled to place the “large object” into the taxi as well, eventually succeeding and riding off in the taxi. (Id., at 331.)

O'Sullivan followed the taxi to West 135th Street, where Petitioner got out. (Id., at 332.) Another man approached Petitioner and the two had a conversation. (Id.) This second person “helped [Petitioner] take the TV out of the rear seat of the [taxi], ” and they carried the TV into a building at 535 West 135th Street. (Id., at 332-33.) O'Sullivan was able to clearly observe Petitioner's face, and he described Petitioner as a “male Hispanic I would say in the forties. I would say maybe about 5'6” to 5'7”. Medium build. Very short haircut. Clean shaven.” (Id., at 332-33.) O'Sullivan waited outside of the building to see if Petitioner would come back out, and, when he did not, O'Sullivan drove to the 26th Precinct. (Id., at 333-34.) When O'Sullivan arrived at the Precinct, he spoke with New York Police Department (“NYPD”) Detective Rojas (“Rojas”) and gave Rojas a description of the man that he had seen. (Id., at 334.)

At around 7:00 p.m. that evening, Amit Khandewal (“Khandewal”) returned to his apartment at 110 Morningside Drive after work to find several of his belongings missing, including his television, multi-colored rug, bike, DVD player, and a suitcase with electronics in it. (Id., at 294, 297-98.) Khandewal called the police, who came to investigate. (Id., at 298.) While there, the police took pictures, and Office Favis Winston (“Winston”) was able to obtain latent fingerprints from DVD boxes found in the apartment. (Id., at 283-85, 299.)

The next day, on April 7, 2010, O'Sullivan, together with James Verdicchio (“Verdicchio”), then-director of investigations at Columbia University, reviewed security camera footage taken from 110 Morningside Drive on April 6 2010. (Id., at 258-61, 335.) O'Sullivan and Verdicchio observed Petitioner enter the building behind another person and then leave several minutes later, carrying “the large object underneath this multi-colored blanket.” (Id., at 335-36.) O'Sullivan recognized Petitioner as the same person he had seen the day before at 122nd Street and Amsterdam Avenue. (Id., at 336-37.) O'Sullivan and Verdicchio then saw Petitioner return to the building later in the day, this time with a key to the front door. (Id., at 337.) After a period of time, Petitioner left with a bicycle. (Id., at 337.) Verdicchio isolated portions of the security footage that showed Petitioner entering and leaving the building. (Id., at 263, 338.) On April 8, 2010, O'Sullivan gave Rojas the footage along with still images from the video depicting Petitioner. (Id., at 371-72.) Rojas used the still images to...