Silvestre v. Capra
| Decision Date | 27 July 2018 |
| Docket Number | 15 Civ. 9425 (KPF) (DCF) |
| Parties | ROGER SILVESTRE, Plaintiff, v. MICHAEL CAPRA, Superintendent, Sing Sing Correctional Facility, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Pending before the Court is the June 25, 2018 Report and Recommendation from United States Magistrate Judge Debra C. Freeman (the "Report") recommending that Petitioner Roger Silvestre's petition for habeas corpus relief under 28 U.S.C. § 2254 (the "Petition") be dismissed in its entirely. For the reasons set forth below, the Court finds no error in the Report and adopts it in its entirety.
This summary draws its facts from the detailed recitation in the Report, to which neither party objects. (See Report 1-13). Petitioner stood trial in 2009 on charges of second-degree murder, first-degree manslaughter, second-degree attempted murder, first-degree assault, and second-degree criminal possession of a firearm. (Id. at 2). Petitioner was convicted of the manslaughter charge only. (Id.). On January 26, 2010, Petitioner was sentenced to the maximum term of 25 years, to be followed by five years of post-release supervision. (Id. at 18). At Petitioner's sentencing, there was some discussion about the accuracy of his criminal history, but the sentencing court concluded that even if Petitioner's prior offense had been reduced to a misdemeanor from a felony, it nevertheless had the authority to sentence Petitioner to up to 25 years. (Id. at 16). Petitioner appealed his conviction to the Appellate Division, which appeal was denied on June 19, 2014. See People v. Silvestre, 988 N.Y.S.2d 167 (1st Dep't 2014). On November 24, 2014, the Court of Appeals denied leave to appeal. See People v. Silvestre, 24 N.Y.3d 1046 (2014).
The Petition in this case raises five grounds for relief: (i) that Petitioner's conviction was based on legally insufficient evidence and violated due process; (ii) that Petitioner was denied a fair trial; (iii) that the trial court erred in allowing the prosecutor to dismiss a misdemeanor charge over a defense objection; (iv) that Petitioner's sentence was excessive; and (v) that Petitioner is actually or legally innocent. (Report 23). The Report found each of these bases to be insufficient. (Id. at 32-72).
In reviewing a Magistrate Judge's report and recommendation, a district court "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). Where, as here, no timely objections have been filed, "a district court need only satisfy itself that there is no clear error on the face of the record." King v. Greiner, No. 02 Civ. 5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y. July 8,2009) (internal quotation marks and citation omitted), aff'd, 453 F. App'x 88 (2d Cir. 2011) (summary order). "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)).
Judge Freeman's Report was issued on June 25, 2018, and objections were due on July 9, 2018. Neither party has objected to the Report. Because the parties have not filed objections, the parties have waived their right to object and to obtain appellate review. Even so, the Court has reviewed the Report and finds that its reasoning is sound and it is 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 Freeman'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 of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith; therefore, in forma pauperisstatus is denied for purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated: July 27, 2018
New York, New York
/s/_________
KATHERINE POLK FAILLA
Copies of this Order and the Report Were Sent by First Class Mail to:
-against-
MICHAEL CAPRA, Superintendent, Sing Sing Correctional Facility, Respondent.
Pro se petitioner Roger Silvestre ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, following his conviction in state court, upon a jury verdict, of Manslaughter in the First Degree, in violation of New York State Penal Law § 125.20(1). Petitioner is incarcerated at the Sing Sing Correctional Facility ("Sing Sing"), in Ossining, New York (see Pet., at 1), where he is serving a sentence of 25 years' imprisonment, to be followed by five years of supervised release (id. ¶ 3).
In this habeas proceeding, Petitioner raises a number of challenges to his conviction and sentence, largely focused on the alleged lack of reliability of the testimony given at trial by the only eyewitness to the crime. (Pet. ¶ 13.) Respondent, the Superintendent of Sing Sing, argues that the Petition should be dismissed on the various grounds that Petitioner's claims are unexhausted, procedurally barred, not cognizable, and/or without merit. For the reasons set forth below, I recommend that the Petition be dismissed in its entirety.
Petitioner and his brother, Elvis Silvestre ("Elvis"), stood trial together in 2009, on charges relating to the death of Francis Johnson ("Johnson") and the wounding of Randolph Harrell ("Harrell") in the early morning hours of July 1, 2006. Both defendants faced charges, as to Johnson, of second-degree murder and first-degree manslaughter (as a lesser included offense to the murder charge); as to Harrell, of second-degree attempted murder and first-degree assault; and, as to both victims, of second-degree criminal possession of a firearm.1 The jury acquitted Elvis of all charges, and convicted Petitioner only of the manslaughter count.
Based on the trial transcript,2 the events underlying Petitioner's manslaughter conviction may be summarized as follows:
1. Johnson's Death
On June 30, 2006, Jennie Jones ("Jones") was living in a sixth-floor apartment at 784 Fox Street, in the Bronx, New York with Johnson, whom she considered to be her husband, even though they were not legally married. (See Trial Tr., at 74-75, 77, 79, 85.) Jones had three children, two of whom were newborn twins fathered by Johnson.3 (See id., at 75, 78.) Jones testified at trial that one of the twins had just come home from the hospital, and that Harrell4 (who described himself at trial as having been a "real good friend" of Johnson's (id., at 448)) had stopped by at about 10:00 or 11:00 that night with bottles of wine, to celebrate both the fact that the first twin had come home, and the fact that Johnson, who had been pursuing a rap career, was anticipating the release of an album. (See id., at 77-78.)
Jones further testified that, at about 1:00 a.m. (i.e., early in the morning of July 1, 2006), after Harrell had left the apartment, she heard loud talking outside, and, when she looked out the apartment window, which faced the street, she saw Harrell arguing and "tussling" with Petitioner. (See id., at 79 (), 86-87.) Jones also testified that she knew Petitioner, as well as his brother, Elvis, as she had gone to school with them. (Id., at 76-77.) Eventually, Harrell came back upstairs to the apartment, and Jones dozed off. (Id., at 81-82.) She testified that, when she woke up at around 3:00 a.m. that morning, she heard gunshots. (Id., at 82, 92-93.) Neither Harrell nor Johnson were still in the apartment at that time, and when she called Johnson's name, she received no response. (Id., at 82.) Finally, she heard someone in the hall calling for Johnson (using his rapper name, "Gangsta"). (Id.) She opened the door and saw Harrell sitting on the stairs,bloody, and she went back into the apartment to call "911." (Id., at 82-83.) Through her window, she then saw Harrell being taken to an ambulance, on a stretcher. (Id., at 83.) Eventually, she learned that someone else had been shot in the building, and she realized it was Johnson. (Id., at 83-84.)
At about 4:30 a.m. on July 1, 2006, Johnson was discovered by police in the lobby of the building, and he died there, shortly after the police arrived. (Id., at 100, 103-06.) He had apparent cut and gunshot wounds, and there was a pool of blood by his body. (Id., at 151-52.)
2. Harrell's Testimony at Trial
Harrell was the only eyewitness to the events that led to Johnson's death and his own injuries, and he implicated both Petitioner and Elvis as the perpetrators of the crimes. According to Harrell's trial testimony, both he and Johnson were stabbed by Petitioner and shot by Elvis. Harrell, however, was not a cooperative witness. He was compelled by the court to appear at trial as a material witness, was taken into custody forcibly to be brought to court for the trial, and gave testimony that was inconsistent and, in many ways, seemed unreliable.
Early in the trial proceedings, the court was notified that the...
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