Scott v. Graham
| Decision Date | 22 October 2018 |
| Docket Number | 16 Civ. 2372 (KPF) (JLC) |
| Parties | ANDRE SCOTT, Petitioner, v. HAROLD D. GRAHAM, SUPERINTENDENT OF AUBURN C.F., Respondent. |
| Court | U.S. District Court — Southern District of New York |
Pending before the Court is the June 29, 2017 Report and Recommendation of United States Magistrate Judge James L. Cott (the "Report" (Dkt. #39)), recommending that Petitioner Andre Scott's petition for habeas corpus relief under 28 U.S.C. § 2254 (the "Petition" (Dkt. #1)) be denied in its entirety. The Court has reviewed both the Report and Petitioner's July 10, 2017 Objection to that Report (the "Objection" (Dkt. #40)), and finds that the Report should be adopted in full. Accordingly, the Petition is denied.
This summary draws its facts from the detailed recitation in Judge Cott's Report. (Report 1-13). On December 1, 2009, Petitioner was indicted by a grand jury for rape, sexual abuse, and assault arising from two alleged altercations with his girlfriend earlier that year. (Id. at 6). In the first, alleged to have occurred on August 22, 2009, Petitioner raped his girlfriend after pushing her down onto a bed and choking her. (Id. at 3). In the second, alleged to have occurred on October 29, 2009, Petitioner repeatedly punched, kicked, and hit his girlfriend because she had not called him "all day" and "was ignoring his calls." (Id. at 4). On April 14, 2011, after being convicted by a jury of all charges, Petitioner was sentenced to 20 years of incarceration followed by 10 years of post-release supervision. (Id. at 7-8).
Petitioner appealed to the Appellate Division, which affirmed the convictions on March 31, 2015. See People v. Scott, 126 A.D.3d 645 (1st Dep't 2015). On June 15, 2015, the Court of Appeals denied leave to appeal. See People v. Scott, 24 N.Y.3d 1171 (2015).
The Petition in this case raises five grounds for relief that echo Petitioner's arguments to the First Department: (i) the prosecution suppressed exculpatory footage during Petitioner's trial, thereby violating his due process rights; (ii) the trial court violated Petitioner's right to present a defense by excluding from evidence a controlled call from the victim to Petitioner; (iii) the verdict was against the weight of the evidence; (iv) the aggravated harassment statute under which Petitioner was convicted had been held to be unconstitutional; and (v) Petitioner's sentence should be reduced because it involved a substantial trial penalty and was not consonant with mitigating facts. (Report 11-12). The Report found each of these bases to be insufficient. (Id. at 20-58). Specifically, Judge Cott found Petitioner's second and fourth claims to be procedurally barred, thereby agreeing with the First Department's determination that Petitioner had failed to comply with New York'scontemporaneous objection rule. (Id. at 20-36). He then found that Petitioner's first claim and a portion of his fifth claim, while both exhausted, were not meritorious. (Id. at 37-47). Finally, Judge Cott found that Petitioner's third claim, as well as certain of his sentencing challenges, were not cognizable on habeas review. (Id. at 47-58).
On July 17, 2017, Petitioner timely filed his Objection to the Report. (Dkt. #40). While the Objection is not a model of clarity, the Court construes Petitioner's argument as follows: Because Petitioner and the victim engaged in a consensual sexual relationship prior to, and after, the August 22, 2009 incident, the sexual encounter on that date was consensual as well.
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 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 Greene v. WCI Holdings Corp., 956 F. Supp. 509, 513 (S.D.N.Y. 1997) (quoting Fed. R. Civ. P. 72(b)); see also Thomas v. Am, 474 U.S. 140, 149 (1985). A magistrate judge's decision is clearly erroneous only if the district court is "left with the definite and firm conviction that a mistake hasbeen committed." Easley v. Cromartie, 532 U.S. 234, 235, 242 (2001) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
To the extent that a petitioner makes specific objections to a magistrate judge's findings, the reviewing court must undertake a de novo review of the objections. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). 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) (internal quotation marks and citation omitted). 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).
Because Petitioner's Objection is both conclusory and general, this Court has reviewed the Report for clear error. The Court finds that the Report's reasoning — which is set forth in commendable detail over nearly 28 of the Report's 59 pages — is sound and grounded in fact and law. Accordingly, the Court finds no clear error and adopts the Report in its entirety.
For the foregoing reasons, the Court adopts Magistrate Judge Cott's thoughtful and comprehensive Report in full. Accordingly, it is hereby ordered that Petitioner's petition for a writ of habeas corpus is DENIED. The Clerk ofCourt is directed to terminate all pending motions, adjourn all remaining dates, and close this case.
The Court further certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Opinion and Order would not be taken in good faith; therefore, in forma pauperis status is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: October 22, 2018
New York, New York
/s/_________
KATHERINE POLK FAILLA
Copies of this Order and the Report Were Sent by First Class Mail to:
-v-
HAROLD D. GRAHAM, Respondent.
Pro se petitioner Andre Scott seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his conviction of one count of rape in the first degree, one count of assault in the second degree, two counts of assault in the third degree, and two counts of aggravated harassment in the second degree. As a second felony offender, Scott was sentenced to an aggregate term of 20 years of incarceration and 10 years of post-release supervision. For the reasons discussed below, I recommend that the petition be denied.
The following facts are drawn from the record of Scott's proceedings in state court.1 In light of Scott's conviction, the Court summarizes the facts in the lightmost favorable to the verdict. See, e.g., Garbutt v. Conway, 668 F.3d 79, 80 (2d Cir. 2012).
During the summer of 2009, Andre Scott and L.R. began a consensual sexual relationship. TR. at 20, 22.2 On October 30, 2009, the police arrived at L.R.'s apartment in response to a call made by her mother. Id. at 250, 285. That day, L.R. reported to the police that Scott had attacked her in the early morning hours of October 30, and also reported that Scott had raped her on August 22. Id. at 80-81, 86. Scott was arrested and a grand jury indicted him for rape, sexual abuse, and assault related to the August incident, and for assault and aggravated harassment related to the October incident. Id. at 335-36; SR. at 25-29.
On January 11, 2011, Scott proceeded to a bench trial before then-New York State Supreme Court Justice, the Honorable Analisa Torres. TR. at 1. Scott was subsequently convicted of one count of rape in the first degree, one count of assault in the second degree, two counts of assault in the third degree, and two counts of aggravated harassment in the second degree, and is currently serving an aggregate sentence of 20 years incarceration and 10 years post-release supervision. Id. at 742; TS. at 909-10.
The prosecution's case, which included testimony from five witnesses, established the following.3 L.R. was 19 years old when she met Scott in early July 2009. TR. at 10. The two began a consensual sexual relationship, seeing each other every day. Id. at 20, 22. L.R. testified that, on the morning of August 22 and after accusing her of receiving a call from a male friend, Scott slapped her and she fell to the bed. Id. at 30-31. According to L.R., after Scott struck her, her cheek felt swollen, her lip was bleeding, and her front tooth was chipped. Id. at 35-36. L.R. also testified that, later the same morning and after apologizing to her, Scott "pushed" her down onto the bed, choked her with "a lot of pressure," unbuttoned her pants, and put his penis inside her vagina. Id. at 37, 40, 42. L.R. testified that she was "saying stop" and "kicking him." Id. at 41. According to L.R., on that morning, she had not wanted to have sex with Scott and had not consented to his putting his penis in her vagina. Id. at 44. L.R. testified that she was dizzy and eventually "passed out." Id. at 41, 44. She said the last thing she remembered feeling or thinking before she passed out was, "I was going to be dead or raped." Id. at 44.
L.R. testified that the following week, she went with Scott to a dentist to seek treatment for her chipped...
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