Opinion
99 Civ. 10757 (LTS) (RLE).
May 17, 2002.
MEMORANDUM OPINION AND ORDER ADOPTING, IN PART, REPORT AND RECOMMENDATION
On June 1, 2001, Magistrate Judge Ronald L. Ellis issued a Report and Recommendation ("Report") recommending that the petition for a writ of habeas corpus filed by Damon Gatling ("Petitioner") pursuant to 28 U.S.C. § 2254 be denied. The Petition is directed to the sentences imposed by the state court upon the underlying convictions; Petitioner asserts that the sentences violate his rights under the Eighth Amendment to the United States Constitution. On June 10, 2001, Plaintiff submitted a timely objection to the Report and Recommendation, arguing that Judge Ellis' conclusions that Petitioner waived his right to seek review of his sentences, and that his Eighth Amendment claim lacks merit, are erroneous.
In reviewing the Report and Recommendation, the Court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C.A. § 636(b)(1)(C) (West 1993 Supp. 2002). The statute provides that "[w]ithin ten days . . . any party may serve and file written objections to such proposed findings and recommendations. . . ." Id. "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted). See also Pizarro v. Bartlet, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (Court may accept report if it is "not facially erroneous"). The Court is required to make a de novo determination as to the aspects of the Report to which objections are made. See id.; United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). When a party makes only conclusory or general objections, or simply reiterates his original arguments, however, the Court reviews the Report and Recommendation only for clear error. See Camardo v. General Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (court need not consider objections which are frivolous, conclusory or general and constitute a rehashing of the same arguments and positions taken in original pleadings); Chabrier v. Leonardo, No. 90 Civ. 0173 (PKL), 1991 WL 44838 at *1 (S.D.N.Y. March 26, 1991) (restatement of allegations before the Court and assertion that valid constitutional claim exists insufficient exists insufficient to form specific objections); Schoolfield v. Dep't of Corr., No. 91 Civ. 1691 (JL), 1994 WL 119740, at *2 (S.D.N.Y. Apr. 6, 1994) (objections stating the magistrate judge's decisions are wrong and unjust, and restating relief sought and facts upon which complaint grounded, are conclusory and do not form specific basis for not adopting report and recommendation). Objections to a Magistrate Judge's report and recommendation "are to be specific and are to address only those portions of the proposed findings to which the party objects." Camardo, 806 F. Supp. at 381-82. Parties filing objections to recommendations are required to "`pinpoint' specific portions of the report and recommendations to which [they] objec[t] . . . ." Id. at 382.
Waiver
The Report concludes that, "[b]ecause [Petitioner] waived all of his nonjurisdictional challenges to the prior proceeding when he pleaded guilty to first and second degree robbery, he cannot now assert that the sentences imposed as a result of the plea bargain were excessive." Report at 6. Petitioner contends that he did not waive his right to appeal the sentences. The Court has reviewed this issue de novo. As noted in Judge Ellis' Report, the right to appeal may be waived as part of plea agreement and such "a waiver is enforceable when the sentence imposed `conforms to the parameters of a plea agreement entered into knowingly and voluntarily.'" United States v. DeJesus, 219 F.3d 117, 121 (2d Cir.), cert. denied, 121 S.Ct. 502 (2000) (quoting United States v. Yemitan, 70 F.3d 746, 747 (2d Cir. 1995)). Here, because the Court lacks the transcript of the state court plea allocution session and there appears to have been no written plea agreement, it is unclear whether Petitioner waived his right to appeal his sentences as part of his plea agreement. It further appears that the presiding judge at Petitioner's sentencing in the Supreme Court of the State of New York informed Petitioner that he had the right to appeal. See Brief for Defendant Appellant at 4, Ex. A to Jones Del. Under these circumstances, the Court cannot find that Petitioner waived his right to appeal and that aspect of the Report is not adopted.
Eighth Amendment
Judge Ellis also recommended that Petitioner's Eighth Amendment claim be denied on the merits. Petitioner's objection to this element of the Report merely reiterates many of the assertions raised in his earlier submissions, including the habeas corpus petition, dated April 1999, and Petitioner's memorandum of law dated April 14, 2000. Petitioner's arguments are addressed directly in the Report; the objection adds nothing new in this regard. Plaintiffs assertion that the crime committed was justified based on Petitioner's family situation and that the sentences imposed by the state court were therefore excessive is not a cognizable basis for federal habeas corpus relief. Indeed, when a sentence is within the range prescribed by state law, there is generally no constitutional issue to be addressed. White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Petitioner's objection on the Eighth Amendment grounds does not, whether reviewed for clear error or de novo, provide any basis for deviation from Judge Ellis' conclusions as to the merits of Petitioner's claim.
Judge Ellis' Report, which is set forth in full below, is adopted to the extent it recommends denial of the petition on the merits. The petition for writ of habeas corpus is, accordingly, denied.
SO ORDERED.
To the HONORABLE LAURA TAYLOR SWAIN, U.S.D.J.:
I. INTRODUCTION
Pro se petitioner Damon Gatling ("Gatling") seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging his sentences in the New York Supreme Court, New York County, for first and second degree burglary. Gatling is serving two concurrent sentences of twelve and a half to twenty-five years and seven and a half to fifteen years at Coxsackie Correctional Facility. See Pet. at 1.Gatling's only claim is that his sentences should be vacated because they are harsh and excessive. See Pet. at 2. Respondent argues that (1) the petition is time-barred under the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") of 1996; (2) Gatling's guilty plea waives all non-jurisdictional defects; and (3) Gatling's sentencing claim is not cognizable for federal review and is meritless. See Resp. Mem. at 4-6. For the reasons which follow, I recommend that Gatling's petition be DENIED.
"Resp. Mem." refers to respondent's Memorandum of Law in Opposition to Petitioner's Application for a Writ of Habeas Corpus, dated March 29, 2000.
II. BACKGROUND
Between December 3, 1995, and January 3, 1996, Gatling and Stephen Buggs ("Buggs") committed seven robberies in subway trains and taxicabs. See Resp. Brief at 1. Gatling and Buggs were charged with twenty-three counts for these incidents, including six counts of Robbery in the First Degree, eight counts of Robbery in the Second Degree, one count of Grand Larceny in the Fourth Degree, two counts of Attempted Robbery in the First Degree, one count of Attempted Robbery in the Second Degree, one count of Attempted Murder in the Second Degree, one count of Attempted Assault in the First Degree, one count of Criminal Possession of a Weapon in the Second Degree, one count of Criminal Possession of a Weapon in the Third Degree, and one count of Reckless Endangerment in the First Degree. See Resp. Brief at 2. On September 30, 1996, Gatling pleaded guilty to one count each of First and Second Degree Robbery. See Pet. at 1. As part of his plea agreement, Gatling agreed not to appeal his conviction. See App. Brief at 3. In exchange for his plea, Gatling was promised two concurrent terms of from twelve and a half to twenty-five years and from seven and a half to fifteen years. See Resp. Brief at 3-4. On October 16, 1996, Gatling was sentenced in accordance with his plea. See Pet. at 4; Resp. Brief at 5.
"Resp. Brief" refers to the Brief for Respondent, filed with the New York State Supreme Court, Appellate Division, First Department, on January 8, 1998.
"App. Brief" refers to the Brief for Defendant-Appellant, filed with the New York State Supreme Court, Appellate Division, First Department, on October 20, 1997.
Gatling appealed his sentences to the Appellate Division, First Department, on October 20, 1997. See Pet. at 2. The judgment was affirmed on March 26, 1998. Id . The Court of Appeals denied Gatling leave to appeal on April 8, 1998. Id . On April 15, 1999, Gatling filed a motion for reargument with the Appellate Division, based on facts that were allegedly overlooked on appeal. The motion was denied on June 15, 1999. Id . Gatling then filed the instant petition when he deposited it in the Coxsackie Facility mailbox on August 31, 1999. See Houston v. Lack , 487 U.S. 266 (1988) ( pro se petitioner's notice of appeal is deemed to be filed upon delivery to prison authorities); Noble v. Kelly , 246 F.3d 93, 97 (2d Cir. 2001) (referring to the nile established in Houston as the "prison mailbox" rule and applying it to a pro se prisoner's petition for habeas corpus). See also , Soltero , 2000 WL 1781657, at * 1.
III. DISCUSSION
A. Time Bar
The AEDPA requires that petitioners in custody pursuant to a state court judgment file their habeas corpus petitions within one year of the judgment becoming final "by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244 (d)(1)(A). A petitioner's conviction becomes final ninety days after the entry of the judgment of conviction, when the "time to seek direct review in the United States Supreme Court by writ of certiorari [has] expired." Acosta v. Artuz , 221 F.3d 117, 120 (2d Cir. 2000) ( citing Ross v. Artuz , 150 F.3d 97, 98 (2d Cir. 1998)); Smith v. McGinnis , 208 F.3d 13, 15 n. 1 (2d Cir.) ( per curiam), cert. denied , 121 S.Ct. 104 (2000); Ojeda v. Artuz , 1997 WL 283398, *2 n. 3 (S.D.N.Y. May 29, 1997). See also Banks v. Senkowski , 2000 WL 1300443, at * 1 (S.D.N.Y. Sept. 13, 2000) (stating that the Southern District of New York has followed the Second Circuit's interpretation of § 2244(d)(1)(A) in spite of respondent's argument that the Second Circuit's statements were `only dicta.').
The one-year limitation, however, can be tolled during the time "which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244 (d)(2). For the purposes of § 2244(d)(2), a post-conviction motion is considered pending from the time it is filed to the time it is denied. See Geraci v. Senkowski , 23 F. Supp.2d 246, 252 (E.D.N.Y. 1998), cert. denied , 121 S.Ct. 581 (2000). See also Bennett v. Artuz , 199 F.3d 116, 120 (2d Cir. 1999) ( citing Taylor v. Lee , 186 F.3d 557, 561 (4th Cir. 1999) (holding that "the entire period of state post-conviction proceedings, from initial filing to final disposition by the highest state court [. . .] is tolled from the limitations period")), cert. granted , 529 U.S. 1065, aff'd , 531 U.S. 4 (2000). Additionally, the state collateral attack toll of § 2244(d)(2) does not start the one-year statute of limitations to run anew because that would allow a petitioner to avoid the statute of limitations by bringing belated state collateral attacks. See Smith v. McGinnis , 208 F.3d at 17. The toll "merely excludes the time a collateral attack is under submission from the calculation of the one-year statute of limitations." Freeman v. Garvin , 2000 WL 631397, *6 (S.D.N.Y. May 16, 2000) ( quoting Torres v. Miller , 1999 WL 714349 at *4 (S.D.N.Y. Aug. 27, 1999)).
On April 8, 1998, the Court of Appeals denied Gatling permission to appeal his conviction, which became final ninety days later, on July 7, 1998. Applying the one-year limitation, Gatling had until July 7, 1999, to file his petition for writ of habeas corpus. However, Gatling's post-conviction motion to reargue tolled the one-year limitation from the time it was filed, on April 15, 1999, to the time it was denied, on June 15, 1999, or 61 days. The one-year deadline was thereby extended to September 6, 1999. Gatling's petition for writ of habeas corpus, filed August 31, 1999, is therefore timely.
B. Exhaustion
A petitioner must exhaust all claims in state court before a federal court will consider them in a habeas corpus petition. 28 U.S.C. § 2254 (b)(1)(A). All federal claims must have been brought to the "highest court of the pertinent state." O'Sullivan v. Boerekel 526 U.S. 838, 845-48, aff'd , 234 F.3d 1272 (1999). See also Pesina v. Johnson , 913 F.2d 53, 54 (2d Cir. 1990); Woods v. Greiner , 2001 WL 482048, *3 (S.D.N.Y. May 8, 2001). Gatling, having brought his claim to the highest state court, has exhausted his state claims, and respondent does not allege that Gatling has failed to exhaust his claims.
C. Waiver
Respondent alleges that Gatling has waived all non-jurisdictional challenges. See Resp. Mem. at 5. Unless the court approves of a reservation of issues for appeal, the guilty plea waives all challenges to the prior proceedings except for jurisdictional challenges or those arising from the propriety of the sentence imposed by the court. See Hooper v. United States , 112 F.3d 83, 87 (2d Cir. 1997); Hayle v. United States , 815 F.2d 879, 881 (2d Cir. 1987). Additionally, when a habeas petitioner has pleaded guilty, "he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea." Ramirez v. Headley , 1998 WL 788782 (S.D.N.Y., Nov. 10, 1998) ( quoting Tollett v. Henderson , 411 U.S. 258, 267 (1973)). The only option available is to "attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the [acceptable] standards." Tollett v. Henderson , 411 U.S. at 267.
Moreover, if the right to appeal a sentence has been waived as part of the plea agreement, the merits of a sentence may not be appealed if the sentence imposed "conforms to the parameters of a plea agreement entered into knowingly and voluntarily." United States v. De Jesus , 219 F.3d 117, 121 (2d Cir.), cert. denied , 121 S.Ct. 502 (2000) ( quoting United States v. Yemitan , 70 F.3d 746, 747 (2d Cir. 1995)); United States v. Salcido-Contreras 990 F.2d 51, 53 (2d Cir. 1993); United States v. Rosa , 123 F.3d 94, 98 (2d Cir. 1997). See also Berdecia v. Lacy 2000 WL 1072306, *6-7 (S.D.N.Y. Aug. 2, 2000) (petitioner's claim was barred from habeas review because he knowingly and voluntarily waived his right to appeal); Morales v. Keane , 1995 WL 235222, *12 (E.D.N Y Apr. 13, 1995) (denying petitioner's claim that his sentences were excessive because he agreed to them as part of a plea bargain); Torres v. Strack , 1998 WL 59452, *10 (N.D.N.Y. Feb. 10, 1998).
Gatling does not assert that his guilty plea was involuntary or coerced, or make a claim of ineffective assistance of counsel in order to attack the voluntary or intelligent character of the guilty plea. Because Gatling waived all of his non-jurisdictional challenges to the prior proceeding when he pleaded guilty to first and second degree robbery, he cannot now assert that the sentences imposed as a result of the plea bargain were excessive.
D. Eighth Amendment Claim
Even if the petitioner's claim were not precluded by the guilty plea, it would not be successful on its merits. The Eighth Amendment condemns only punishment that shocks the collective conscience of society, United States v. Gonzalez , 922 F.2d 1044, 1053 (2d Cir. 1991); Ramirez v. United States , 2000 WL 1028573, *2 (S.D.N.Y. July 26, 2000), and prohibits the imposition of a sentence that is "grossly disproportionate to the severity of the crime." Rummel v. Estelle , 445 U.S. 263, 271 (1980). Accordingly, "federal courts should be reluctan[t] to review legislatively mandated terms of imprisonment, and successful challenges to the proportionality of particular sentences should be exceedingly rare." United States v. Santos , 64 F.3d 41, 45 (2d Cir. 1995) ( quoting Hutto v. Davis , 454 U.S. 370, 374 (1982)), vacated on other grounds , 516 U.S. 1156 (1996). Sentences that fall within the statutory range "will not be set aside on appeal absent extraordinary circumstances." United States v. Di Tommaso , 817 F.2d 201, 217 (2d Cir. 1987).
Ordinarily, a state court sentencing decision does not present a constitutional issue for review if it falls within the range prescribed by state statute. Herrera v. Artuz 2001 WL 392553, *3 (S.D.N.Y. Apr. 17, 2001) ( citing White v. Keane , 969 F.2d 1381, 1383 (2d Cir. 1992)); Mitchell v. Herbert , 1998 WL 186766, at *7 (S.D.N.Y. April 20, 1998)). Mayoral v. Dufrain , 1998 WL 744011 (S.D.N.Y., Oct. 26, 1998); Thomas v. Senkowski , 968 F. Supp. 953 (S.D.N.Y. 1997); Alvarez v. Scully 833 F. Supp. 1000, 1009 (S.D.N.Y. 1993). To win relief, a petitioner must show the trial court's sentencing decision was "wholly devoid of discretion or amounted to an arbitrary or capricious abuse of discretion, or that an error of law resulted in the improper exercise of the sentencer's discretion and thereby deprived the petitioner of his liberty." Jones v. Hollins , 884 F. Supp. 758, 761-62 (W.D.N.Y.), aff'd , 89 F.3d 826 (2d Cir. 1995)). See also , Alvarez v. Scully , 1993 WL 15455, * 8 (S.D.N.Y. Jan. 11, 1993) ( citing Hicks v. Oklahoma , 447 U.S. 343, 346 (1980)).
Gatling presents no reasonable argument that his sentences were disproportionate to the severity of the crimes that he committed. The sentences fell within the statutory range at the time they were imposed. He does not offer any arguments suggesting that the decision of the sentencing court was an arbitrary and capricious abuse of discretion so grossly erroneous as to deprive him of his liberty. He has not presented any extraordinary circumstances that merit setting the sentence aside. At the time Gatling was convicted and sentenced in 1996, the statutory sentence for burglary in the first degree was between six and twenty-five years. The statutory sentence for burglary in the second degree was between four and a half and fifteen years. N.Y. Penal Law § 70.02 (amended 1996). Gatling was convicted of burglary in the first and second degrees. He was sentenced to two concurrent sentences of twelve and a half to twenty-five years and seven and a half to fifteen years. These sentences were within the statutory range and consequently, Gatling does not have a Constitutional issue for federal habeas corpus review.
IV. CONCLUSION
For the reasons stated above, I recommend that the petition be DENIED. Gatling's sentences were not harsh and excessive, thus he does not have a cognizable claim for this court to consider.
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties shall have ten (10) days after being served with a copy of the recommended disposition to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies delivered to the chambers of the Honorable Laura Taylor Swain, 40 Centre Street, Room 426, and to the chambers of the undersigned, 500 Pearl Street, Room 1970. Failure to file timely objections shall constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn , 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services , 892 F.2d 15, 16 (2d Cir. 1989) ( per curiam ); 28 U.S.C. § 636 (b)(1) (West Supp. 1995); Fed.R.Civ.P. 72, 6(a), 6(e).
Respectfully Submitted,
The Honorable Ronald L. Ellis United States Magistrate Judge