Opinion
09 Civ. 2571 (RMB) (GWG).
March 29, 2010
ORDER
I. Background
On or about March 20, 2009, Javier Ortiz ("Petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition") against Superintendent Robert E. Ercole ("Respondent") of the Green Haven Correctional Facility in Green Haven, New York, challenging his conviction on March 1, 2005 following a jury trial in New York State Supreme Court, New York County, of murder in the second degree in violation of New York Penal Law § 125.25(1), and attempted murder in the second degree in violation of New York Penal Law §§ 110.00 125.21. (Pet. at 1.) Petitioner seeks, among other things, "an order reversing [Petitioner's] convictions and directing [Petitioner's] release from incarceration and/or a remand for retrial." (Pet. at 2.)
Petitioner alleges, among other things, that: (1) the trial court "denied Petitioner's due process right to a fair trial and . . . right to the assistance of conflict[-]free counsel . . . when defense counsel sought and obtained . . . an early adjournment [during jury deliberations] until the next day in order for [counsel] to attend a [real estate] closing in another county"; (2) Petitioner's right to an impartial jury was violated when the trial court denied Petitioner's motion for a mistrial after "a woman who identified herself as a juror called the court clerk to report that she was uncomfortable proceeding with the trial . . . and [an] inquiry failed to reveal the identity of the caller"; and (3) Petitioner's right to an impartial jury was also violated when "the prosecutor's affirmative misrepresentation that [a] child witness would not be called" at trial prejudiced Petitioner's ability properly to question prospective jurors during voir dire. (Pet. at 2.)
On or about July 13, 2009, Respondent filed an opposition ("Opposition") to the Petition, in which it argues, among other things, that the Petition should be denied because: (1) "the state court's decision that [P]etitioner received conflict-free representation was not contrary to or an unreasonable application of United States Supreme Court precedent"; (2) "Petitioner has failed to rebut, by clear and convincing evidence, the court's factual finding that the jury was impartial"; and (3) Petitioner's prosecutorial misconduct claim is procedurally barred because "Petitioner did not object to [the child-witness's] testimony nor . . . request mistrial." (Decl. in Opp'n, dated Jul. 13, 2009, at 5-6, 12.)
On December 14, 2009, United States Magistrate Judge Gabriel W. Gorenstein, to whom the matter had been referred, issued a thorough report and recommendation ("Report"), recommending that the Petition be denied because, among other reasons: (1) the Petitioner cannot show counsel's request to adjourn early "had any effect at all on the outcome of the jury deliberations" or that "the adjournment prejudiced [Petitioner]"; (2) Petitioner "has not shown that the state court's conclusion [reached after polling the jury] that the jury was impartial constituted an unreasonable determination of [the] factual question" regarding a phone call allegedly made concerning the trial; and (3) Petitioner "did not preserve his claim that the prosecutor prejudiced [D]efendant's voir dire of prospective jurors." (Report at 13-15, 17.)
The Report advised that, "[p]ursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days from service of this Report and Recommendation to serve and file any objections." (Report at 17.) On February 1, 2010, Petitioner filed objections ("Objections") to the Report, arguing substantially the same points made in the Petition.
For the reasons stated below, the Report is adopted in its entirety and the Petition is denied.
II. Standard of Review
See Thomas v. Arn 474 U.S. 140149de novo 28 U.S.C. § 635see also Donahue v. Global Home Loans Fin., Inc.2007 WL 83181628 U.S.C. § 636see also72Grassia v. Scully89 F.2d 1619
III. Analysis
(1) Adjournment During Jury Deliberations
de novo See Pizarro v. Bartlett 776 F. Supp. 815817see also Nelson v. Smith618 F. Supp. 11861189 see Mickens v. Taylor535 U.S. 162166see also United States v. Zackson6 F.3d 911921
As to any portion of the Report to which no objections have been made, the Court concludes that the Report is not clearly erroneous. See Pizarro, 776 F. Supp. at 817. Any Objections not specifically addressed in this Order have been considered de novo and rejected.
(2) Alleged Telephone Call From a Juror
(3) Alleged Prosecutorial Misconduct
see Fama v. Comm'r of Corr. Servs.235 F.3d 804813United States v. Torres 128 F.3d 3844see A.S. Goldmen, Inc. v. Phillips 2006 U.S. Dist. LEXIS 45342 see Velasquez v. Leonardo 1989 U.S. Dist. LEXIS 4354
IV. Certificate of Appealability
A certificate of appealability may not be issued unless "the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Petitioner has not made such a showing and a certificate of appealability is neither warranted nor appropriate in this case. See Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000). Any appeal from this Order will not be taken in good faith. See 28 U.S.C. § 1915(a)(3).
V. Conclusion and Order
For the reasons stated herein, the Report is adopted in its entirety and the Petition is denied. The Clerk of the Court is respectfully requested to close this case.