King v. Coveny

MARCUS KING, Plaintiff, v. RAYMOND J. COVENY, Defendant.

No. 18 Civ. 2851 (KPF) (OTW)

United States District Court, S.D. New York

October 3, 2022

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

KATHERINE POLK FAILLA, District Judge.

Pending before the Court is the July 1, 2022 Report and Recommendation from United States Magistrate Judge Ona T Wang (the “Report” (Dkt. #28), attached), addressing Marcus King's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the “Petition” (Dkt. #1)). Judge Wang recommends that the Petition be dismissed in its entirety.

The Court has examined the Report and notes that no party has objected within the fourteen-day period from its service, as provided by 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court finds no error in the Report and adopts it in its entirety.

BACKGROUND

The relevant facts underlying this action are set forth in the Report, and the Court assumes familiarity with them. A brief overview is set forth herein, drawing from the recitation of the facts in the Report (see Report 3-6), as well as from entries in the public docket.

On January 11, 2012, Petitioner was convicted in the New York State Supreme Court, Bronx County, of two counts of criminal possession of a weapon in the second degree, N.Y. Penal Law §§ 265.03(1)(b), 265.03(3), and one count of assault in the second degree, N.Y. Penal Law § 120.05(2). (Report 6; Dkt. #17, Ex. 1). Petitioner's convictions stemmed from events that occurred on August 30, 2008. That night, two women called a cab to take them from a house party. (Report 3). Petitioner, who was also at the party, told the women that he was going to take their cab. (Id.). An argument ensued and ended with King shooting one of the women in the back. (Id.). Petitioner was arrested on April 29, 2009. (Id. at 4).

Petitioner was convicted after a jury trial. (Report 6). At trial, the prosecution admitted a redacted arrest photograph of Petitioner taken on August 1, 2008, over Petitioner's objection that the photograph was unduly prejudicial. (Id. at 5). The photograph was admitted for the sole purpose of showing the length of Petitioner's hair on that date, which matched witness descriptions of his hair on the night of the crimes. (Id.). Additionally, and again over Petitioner's objection, the trial court allowed law enforcement witnesses to testify about their multi-month efforts to locate Petitioner following the crimes. (Id.). The trial court denied the prosecution's request for a consciousness-of-guilt charge based on this testimony. (Id.).

The trial court sentenced Petitioner to fifteen years in prison and five years of supervised release. (Report 6). The court noted that the prosecution had previously offered Petitioner a plea deal of two to four years' imprisonment but found that fact irrelevant to its sentencing determination. (Id.).

Petitioner thereafter appealed to the Appellate Division, First Department. As relevant here, Petitioner claimed that the introduction of the redacted photograph and law enforcement testimony violated his due process and fair trial rights, and separately argued that his sentence was excessive and/or vindictive. (See Report 13). His arguments were rejected, and his conviction and sentence affirmed, in a unanimous decision issued on July 6, 2017. People v. King, 152 N.Y.S.3d 854 (1st Dep't 2017). Two months later, on October 18, 2017, the New York Court of Appeals denied Petitioner's request for leave to appeal to that court. People v. King, 30 N.Y.3d 981 (2017).

On March 29, 2018, King filed the instant petition for habeas corpus, seeking to challenge his conviction and fifteen-year sentence. (Dkt. #1). Specifically, King argues that his conviction is invalid because (i) the use of a “highly prejudicial previous arrest photograph” at trial deprived him of due process and a fair trial; (ii) trial testimony regarding law enforcement's efforts to locate him following the crime deprived him of due process and a fair trial; and (iii) his fifteen-year sentence is impermissibly excessive or vindictive in light of the plea offer for a lesser sentence. (Id.). Thus, King asserts that his conviction and sentence violate the Sixth, Eighth and Fourteenth Amendments to the U.S. Constitution. (Report 2, 14).

On June 4, 2018, this matter was referred to Magistrate Judge Wang, who granted Respondent Raymond J. Coveny additional time to answer the Petition. (Dkt. #9, 11). Respondent filed a brief in opposition to the Petition and supporting papers on July 26, 2018. (Dkt. #17-18). Petitioner filed a reply brief on August 30, 2018. (Dkt. #20).

On July 1, 2022, Judge Wang issued the Report and recommended that the Court deny the Petition in full. (See generally Report). Judge Wang first rejected Petitioner's evidentiary claims regarding the photograph and law enforcement testimony. She explained that proper application of a presumptively constitutional state evidentiary rule cannot violate the federal constitution and credited the Appellate Division's conclusions that the evidentiary rulings did not violate state law. (Id. at 9-14). Judge Wang then rejected Petitioner's excessive sentence claim after determining that Petitioner was not entitled to a presumption of vindictiveness because the trial court offered a neutral explanation for his sentence. (Id. at 14-15). Finally, Judge Wang recommended that a certificate of appealability not be issued because King had not “made a substantial showing of the denial of a constitutional right.” (Report 16 (citing 28 U.S.C. § 2253(c)(2))).

Judge Wang advised the parties that they had fourteen days from the issuance of the Report to file written objections and, further, that “failure to file timely objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review.” (Report 16 (emphases in original)). Neither party objected to the Report. (See Dkt. #30 (Respondent's statement of nonobjection to Report)).

DISCUSSION

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 also 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 Ramirez v. United States, 898 F.Supp.2d 659, 663 (S.D.N.Y. 2012) (citation omitted). A magistrate judge's decision is clearly erroneous only if the district court is “‘left with the definite and firm conviction that a mistake has been committed.'” Easley v. Cromartie, 532 U.S. 234, 242 (2001) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). “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 Wang's Report issued on July 1, 2022, and objections were due on July 15, 2022. As neither party has submitted objections to the Report, review for clear error is appropriate. See Phillips v. Reed Grp., Ltd., 955 F.Supp.2d 201, 211 (S.D.N.Y. 2013). The Court has reviewed the Report and finds that its reasoning is sound and that it is grounded in fact and in law. More specifically, the Court agrees with Judge Wang's analysis of the legal issues raised by Petitioner, and with her ultimate conclusions that the trial court's evidentiary rulings were valid under state and federal law and that Petitioner's sentence was not constitutionally excessive. (Report 13-15). Having reviewed the record, the Court finds no clear error and adopts the Report in its entirety.

CONCLUSION

The Court agrees completely with Judge Wang's well-reasoned Report and hereby adopts its reasoning by reference. Accordingly, it is ORDERED that the Petition be dismissed in its entirety.

As Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005). The Court also certifies pursuant to 18 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purposes of an appeal. See Coppedge v. United States, 369 U.S. 438, 44445 (1962).

The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. The Clerk of Court is further directed to mail a copy of this Order to Petitioner at his address of record.

SO ORDERED.

REPORT AND RECOMMENDATION

ONA T. WANG, United States Magistrate Judge.

To the Honorable KATHERINE POLK FAILLA, United States District Judge:

I. Introduction

Petitioner Marcus King brings this habeas corpus proceeding in accordance with 28 U.S.C. § 2254, seeking to challenge his conviction and sentence.^[1] Petitioner's first trial ended in a mistrial; at his second trial, he was convicted of two counts of criminal possession of a weapon in the second degree, and one count of assault in the second degree and sentenced to 15 years' incarceration with 5 years of post-release supervision. (ECF 18-23, Tr. 32:4-10).

Petitioner asserts three claims:

1) that he was deprived of due process and a fair trial when the trial court allowed use of a “highly prejudicial previous arrest photograph” to show Petitioner's

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