Rivera v. Kaplan
| Docket Number | 17-CV-2257 (RA) (SN) |
| Decision Date | 19 August 2022 |
| Parties | LILLIAN RIVERA, Petitioner, v. SABRINA KAPLAN, Respondent. |
| Court | U.S. District Court — Southern District of New York |
ORDER ADOPTING REPORT AND RECOMMENDATION
In this petition for a writ of habeas corpus (the “Petition”) filed pursuant to 28 U.S.C. § 2254, Lillian Rivera challenges her conviction, following a jury trial, for conspiracy in the second degree, criminal possession of a controlled substance in the first and third degrees, and criminal sale of a controlled substance in the third degree. Each of these charges stemmed from a large-scale cocaine dealing operation led by Rivera. Following her trial, she directly appealed to the New York Supreme Court's Appellate Division, which upheld her conviction; she then moved to vacate her conviction pursuant to New York Criminal Procedure Law § 440.10, also without success.[1] Rivera subsequently filed the instant Petition, which this Court referred to Magistrate Judge Sarah Netburn for a Report and Recommendation (the “Report”). Judge Netburn has recommended dismissing each of Rivera's claims, and Rivera has filed objections. The Court assumes the parties' familiarity with the facts, as outlined in detail in the Report. For the reasons that follow, the Court adopts the Report in its entirety and dismisses the Petition.
A district court reviewing a magistrate judge's report and recommendation “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)(C). In doing so, it may “adopt those portions of the recommendation to which ‘specific, written objection' is made, as long as those sections are not clearly erroneous.” Greene v. WCI Holdings Corp., 956 F.Supp. 509, 513 (S.D.N.Y. 1997) (quoting Fed.R.Civ.P. 72(b)). “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.” Stenson v. Heath, No. 11-CV-5680 (RJS), 2015 WL 3826596, at *2 (S.D.N.Y. 2015).[2] A court must, by contrast, undertake a de novo review of those portions of a report to which specific objections have been made. See § 636(b)(1)(C); Greene, 956 F.Supp. at 513. “Objections of pro se litigants are generally accorded leniency and construed to raise the strongest arguments that they suggest.” Quinn v. Stewart, No. 10-CV-8692 (PAE) (JCF), 2012 WL 1080145, at *4 (S.D.N.Y. Apr. 2, 2012).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides that when a state court has previously adjudicated the merits of a petitioner's habeas claim, a federal district court may grant relief only where the state court's decision was “contrary to or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § (d)(2). See Harrington v. Richter, 562 U.S. 86, 103 (2011) (). A state court decision is “contrary” to clearly established federal law “if the state court arrives at a conclusion opposite to that reached by th[e] Court on a question of law or if the state court decides a case differently than th[e] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court decision constitutes an unreasonable application of clearly established federal law “if the state court identifies the correct governing legal principle from th[e] Court's decisions but unreasonably applies that principle to the facts of the [petitioner's] case.” Id. Federal habeas courts must also “presume the correctness of state courts' factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.'” Schriro v Landrigan, 550 U.S. 465, 473-74 (2007) (quoting § 2254(e)(1)).
Moreover a federal habeas court “will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment,” Coleman v. Thompson, 501 U.S. 722, 729 (1991), “unless the [petitioner] can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice,” id. at 750. Procedural default precludes habeas review when “the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar.” Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005).
Finally, a federal court may not grant habeas relief unless a petitioner has exhausted her claims. Exhaustion requires an individual to “fairly present” her claims to the state courts, that is, to “present[] the essential factual and legal premises of [her] federal constitutional claim to the highest state court capable of reviewing it.” Jackson v. Conway, 763 F.3d 115, 133 (2d Cir. 2014). Although she need not “cite chapter and verse of the Constitution,” she must express her claim “in terms that are likely to alert the state courts to the claim's federal nature.” Id.
Rivera's Petition alleges the following: the state trial court violated her Fourth Amendment rights by denying, without a hearing, her motion to suppress evidence obtained from her arrest, a search of her apartment, and a wiretap; the state trial court violated her right to a fair trial by admitting certain exhibits and testimony and by denying her motions to sever her trial from that of her co-defendant; the state trial court violated her Confrontation Clause rights by admitting certain hearsay evidence; the prosecution failed to timely disclose allegedly exculpatory information in violation of Brady v. Maryland; her trial counsel was constitutionally ineffective by failing to object to the admission of certain evidence and by failing to adopt her pro se severance motion; and the state trial court's sentence was constitutionally excessive. In a 52-page Report, Judge Netburn reviewed Rivera's claims and found that each one either was unexhausted, was procedurally barred, failed on the merits, or suffered from multiple of these defects.
Rivera filed a Notice of Objections in which she appears to object to virtually the entirety of the Report. Namely, she challenges: (1) the determination that her Fourth Amendment claim is both procedurally defaulted and incognizable on habeas review; (2) the determination that her Title III claim challenging the admission of wiretap evidence is both unexhausted and fails on the merits, as well as the legal standard that the Report employed in reviewing that claim (3) the determination that she has procedurally defaulted her severance claim, has not shown cause or prejudice excusing that default, and that the severance claim fails on the merits; (4) the determination that her Brady claim is unexhausted and fails on the merits; (5) the determination that her Confrontation Clause claim is procedurally barred and fails on the merits; (6) the determination that her juror-replacement claim is procedurally barred and fails on the merits; (7) the determination that her unsworn-witness claim is procedurally barred and fails on the merits; (8) the determination that her ineffective assistance of counsel claim is procedurally barred and fails on the merits; and (9) the determination that her Eighth Amendment claim fails on the merits. The Court has reviewed each of Rivera's objections to the Report and concludes that none of them have merit.
As an initial matter, the Court notes that several of Rivera's objections constitute perfunctory or conclusory responses to the Report's findings, or repeat the arguments made in her initial Petition. Those objections will be reviewed only for clear error. See Alfaro v. Capra, No. 13-CV-5867 (RA) (GWG), 2016 WL 6778798, at *2 (S.D.N.Y. Nov. 14, 2016) (“Because Petitioner merely reiterates his original arguments raised before the magistrate judge, the Court reviews the Report for clear error.”); Barratt v. Joie, No. 96-CV-0324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002) (); Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y. 2008) (“Reviewing courts should review a report and recommendation for clear error where objections 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 petition.”); Pinkney v. Progressive Home Health Servs., No. 06-CV-5023, 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008) ().[3] Fourth Amendment Claim[4]
Rivera first objects to the Report's determination that her Fourth Amendment claim, which challenges the denial of her suppression motion without a hearing, is incognizable on habeas review pursuant to Stone v. Powell, 428 U.S 465 (1976), as well as the Report's decision not to instead analyze this claim as a cognizable due process claim. See Objections at 2. “As a general rule, Fourth Amendment claims are not reviewable by the...
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