McPherson v. Greiner

Full title: BRAD McPHERSON, Petitioner, against CHARLES GREINER, Green Haven…

Court: United States District Court, S.D. New York

Date published: Dec 2, 2003

02 Civ. 2726 (DLC) (AJP) (S.D.N.Y. Dec. 2, 2003)

Opinion

02 Civ. 2726 (DLC) (AJP)

December 2, 2003

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

In McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 (S.D.N.Y. Oct. 22, 2003) (Peck, M. J.) (hereinafter "McPherson I"), familiarity with which is assumed, I recommended denial of McPherson's habeas claims challenging his conviction, while reserving decision on McPherson's habeas claims challenging his persistent felony offender sentence underApprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). (See Dkt. No. 1: Pet. ¶ 12(D); Dkt. No. 5: Am. Pet. ¶ 12(E).)

I addressed Apprendi's application to New York's persistent felony offender statute, as set forth in Penal Law § 70.10 and C.P.L. § 400.20, in Besser v. Walsh, 02 Civ. 6775, 2003 WL 22801952 (S.D.N.Y. Nov. 26, 2003) (Peck, M.J.) ("Besser IT"). Based on my Besser'n opinion, a copy of which is attached, I recommend that the Court grant McPherson'sApprendi habeas claim and direct that the State re-sentence him in accordance with that decision.¹

1 I therefore need not reach McPherson's Apprendi based challenge to the failure of the indictment to charge the enhanced sentencing factors for persistent felony offender sentencing.
I also note that subsequent to my Besser II opinion, in People v. Lee, N.Y.L.J., Nov. 28, 2003, at 15 (Sup.Ct. N.Y. Co. Nov. 28, 2003), Justice Fried determined that as a state trial judge he was bound to follow the New York Court of Appeals' Rosen decision, "even though there may be lower federal court decisions to the contrary."

FILEVG OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Denise L. Cote, 500 Pearl Street, Room 1040, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Cote. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2dCir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234. 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).