Sepulveda v. Lee

• Decision Date: 28 September 2015
• Docket Number: 11-CV-487 (CS) (JCM)
• Parties: CHRISTOPHER SEPULVEDA, Petitioner, v. WILLIAM A. LEE, Superintendent, Green Haven Correctional Facility, Respondent.
• Court: U.S. District Court — Southern District of New York

CHRISTOPHER SEPULVEDA, Petitioner, v. WILLIAM A. LEE, Superintendent, Green Haven Correctional Facility, Respondent.

11-CV-487 (CS) (JCM)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

September 28, 2015

ORDER ADOPTING REPORT AND RECOMMENDATION

Seibel, J.

Before the Court are Petitioner Christopher Sepulveda's Objections, filed September 14, 2014, (Doc. 63), to the Report and Recommendation ("R&R") of United States Magistrate Judge Judith C. McCarthy, dated August 25, 2015, (Doc. 62), recommending denial of Petitioner's Petition pursuant to 28 U.S.C. § 2254, (Doc. 1). Familiarity with prior proceedings, the R&R, the issues presented and the applicable legal standards is presumed.

I. Standard of Review

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). Parties may raise objections to the magistrate judge's report and recommendation, but they must be "specific," "written," and submitted "[w]ithin 14 days after being served with a copy of the recommended disposition." Fed. R. Civ. P. 72(b)(2); accord 28 U.S.C. § 636(b)(1). A district court must conduct a de novo review of those portions of the report or specified proposed findings or recommendations to which timely objections are made. 28 U.S.C. § 636(b)(1); see Fed. R. Civ. P. 72(b)(3) ("The district judge may accept, reject, ormodify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions."). The district court may adopt those portions of a report and recommendation to which no timely objections have been made, provided no clear error is apparent from the face of the record. Lewis v. Zon, 573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008); Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); Fed. R. Civ. P. 72 advisory committee's note (b). In addition, "[t]o the extent . . . 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." DiPilato v. 7-Eleven, 662 F. Supp. 2d 333, 339 (S.D.N.Y. 2009) (internal quotation marks omitted); accord McAllan v. Von Essen, 517 F.Supp.2d 672, 679 (S.D.N.Y.2007) ("If, however, the party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error.") (internal quotation marks omitted); 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.") (internal quotation marks omitted).

The objections of parties appearing pro se are "generally accorded leniency" and should be construed "to raise the strongest arguments that they suggest." DiPilato, 662 F. Supp. 2d at 340 (internal quotation marks omitted). "Nonetheless, even a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior argument." Id. (internal quotations marks omitted).

II. Discussion

Petitioner has raised three objections to the R&R. First, he alleges that the Magistrate Judge erroneously concluded that the evidence was sufficient to support his conviction for depraved indifference murder. But by Petitioner's own account (both to the jury and in this Court), he put his hand over his face and shot twice in the victim's direction. A jury could surely conclude that conduct showed that Petitioner "simply [didn't] care whether grievous harm result[ed] or not." People v. Suarez, 6 N.Y.3d 202, 214 (2005). That another view of the evidence might have supported a finding of intentional murder does not render the evidence of depraved indifference insufficient. See Johnson v. Bellnier, 508 F. App'x 23, 26 (2d Cir. 2013) (summary order). Further, Magistrate Judge McCarthy did not conclude that Petitioner must have been guilty of depraved indifference murder simply because the jury could not agree on intentional murder. After marshaling the trial evidence showing that there was sufficient evidence for a reasonable juror to conclude that Petitioner acted with depraved indifference, she merely mentioned in passing the failure to agree on intentional murder - a fact that could be said to bolster but was by no means necessary to her conclusion, and certainly did not suggest that she believed any unintentional killing would amount to depraved indifference murder.

Petitioner next argues that the Magistrate Judge erred in denying his claim for ineffective assistance of counsel based on his lawyer's failure to move to dismiss the felony-murder count as jurisdictionally defective for failure to specify that robbery was the predicate felony at issue. He cites People v. Gladman, 41 N.Y.2d 123, 125 (1976), and People v. Iannone, 45 N.Y.2d 589, 600-601 (1978), for the proposition that a felony-murder indictment must specify the predicate felony, but no such proposition is supported by those cases. Indeed, if anything, Iannone suggests the opposite, as does People v. Kelly, 566 N.Y.S.2d 326, 327 (App. Div. 2d Dep't 1991) (...