GLENN T. SUDDABY, Chief District Judge.
Currently before the Court, in this habeas corpus action filed by Isidoro Marra ("Petitioner") pursuant to 28 U.S.C. § 2254, is a Report-Recommendation by United States Magistrate Judge David E. Peebles recommending that the Petition be denied and dismissed but that a certificate of appealability be issued with regard to Petitioner's ineffective-assistance-ofcounsel claim, because he has made a "substantial showing of the denial of a constitutional right" with respect to that claim pursuant to 28 U.S.C. § 2253(c)(2). (Dkt. No. 19.) Both Petitioner and Respondent have filed Objections to the Report-Recommendation (as well as responses to the opposing Objections). (Dkt. Nos. 22, 23, 25.) For the reasons set forth below, Magistrate Judge Peebles' Report-Recommendation is accepted and adopted in its entirety; the Petition is denied and dismissed; and a certificate of appealability shall be issued with respect to Petitioner's ineffective-assistance-of-counsel claim.
Because this Decision and Order is intended primarily for the review of the parties (who have demonstrated through their briefs an accurate understanding of the factual background of Petitioner's 2011 conviction for rape in the first degree pursuant to New York Penal Law § 130.35[2]), for the sake of brevity, the Court will not recite the factual background of Petitioner's conviction but will simply refer the parties to the relevant portions of Magistrate Judge Peebles' Report-Recommendation, which accurately recite that factual background. (Dkt. No. 19, at Parts I and II.A.)
Generally, in his habeas corpus petition, Petitioner asserts the following three claims: (1) his defense counsel at trial, George Aney, provided him with ineffective assistance of counsel by (a) pursuing a defense theory based on a relying on a misunderstanding of what constitutes "being physically helpless" under New York Penal Law § 130.35(2) (rather that pursuing other available and more-suitable defenses), (b) failing, without any legitimately defensible strategic reason, to call a key witness (Ronald Mauro) to testify at trial, (c) denigrating, during his summation, a witness (Patty Putnam) whose testimony was the only trial testimony favorable to Petitioner, and (d) committing other avoidable errors that prejudiced the outcome of the case, including failing to counter the prosecution's proffer of improper photographic evidence, and failing to object when during summation the prosecutor made improper statements regarding Petitioner's alleged use of a condom at the time of the alleged crime; (2) Assistant Herkimer County District Attorney Jeffrey S. Carpenter committed prosecutorial misconduct during the trial by (a) submitting into evidence, and commenting on during his summation, irrelevant and highly prejudicial photographs of the victim, and (b) purposefully avoiding asking any witness whether there was any evidence that Petitioner was wearing a condom at the time of the alleged crime and choosing instead to raise the issue for the first time during his summation; and (3) the trial court denied Petitioner a fair trial by erroneously admitting into evidence irrelevant and highly prejudicial photographs of the victim. (Dkt. No. 1; Dkt. No. 1, Attach. 1.)
Generally, in his Report-Recommendation, Magistrate Judge Peebles made the following four findings of fact and/or conclusions of law: (1) that, with respect to Petitioner's claim that the prosecutor committed misconduct during the trial, the claim is both unexhausted (in that Petitioner failed to fairly present it to the Court of Appeals for review) and procedurally defaulted, and Petitioner cannot demonstrate cause for the default and prejudice or that failure to consider the claim will result in a miscarriage of justice; (2) that, with respect to Petitioner's claim that the trial court denied Petitioner a fair trial, the photographs referenced by Petitioner were properly admitted into evidence and relevant not only to the issue of the victim's helplessness, but also to the prosecution's theory that, by undressing the victim and having sexual intercourse with her while she was sleeping, defendant caused bruising and red marks to the victim's body that is inconsistent with consensual intercourse; (3) that, with respect to Petitioner's claim that his trial counsel was ineffective, at most Petitioner has established that trial counsel's misunderstanding that merely being asleep does not constitute "being physically helpless" under New York Penal Law § 130.35(2) amounts to constitutionally deficient representation,
Generally, in his Objections, Petitioner asserts the following two arguments: (1) by narrowly focusing on trial counsel's misunderstanding of New York Penal Law §130.35, Magistrate Judge Peebles failed to consider the cumulative effects of all of trial counsel's errors; and (2) most significantly, Magistrate Judge Peebles erred in finding that Petitioner failed to establish prejudice under Strickland, because the issue was not whether there was sufficient evidence adduced at trial from which the jury could have found that the victim was physically helpless but whether there was a reasonable probability that, by forgoing a hapless "merely sleeping" defense and focusing instead on the element of vaginal penetration, the outcome of the trial would have been different (i.e., at most Petitioner would have been convicted of a lesserincluded offense). (Dkt. No. 22.)
Generally, in his response to Petitioner's Objections, Respondent argues that the Court should reject Petitioner's argument that Magistrate Judge Peebles failed to consider the "cumulative effects" of trial counsel's errors when the Magistrate Judge thoroughly reviewed Petitioner's claims and found that trial counsel committed only one error, correctly determining that there was no merit to any of the other alleged errors. (Dkt. No. 23, at 9 [attaching page "8" of Respondent's Objections and Response].)
Generally, in his Objections, Respondent asserts the following two arguments: (1) Magistrate Judge Peebles erred by finding that trial counsel's representation of Petitioner was constitutionally deficient (in that it was based on a misunderstanding of what constitutes "being physically helpless" under New York Penal Law § 130.35[2]), because in fact, while "physical[] helpless[ness]" may include sleep (e.g., if a victim were in a deep sleep as a result of barbiturate consumption), it need not always include sleep, and is a question of fact for a jury;
Generally, in his response to Respondent's Objections, Petitioner argues that there is no merit to Respondent's Objection (that Petitioner's trial counsel set forth a legitimate argument regarding whether the victim was "physically helpless" under New York Penal Law § 130.35[2]) for the following three reasons: (1) the New York Appellate Division, Third Department, has twice ruled that proof of sleep alone is sufficient to meet the burden of proving physical helplessness;
When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be "specific," the objection must, with particularity, "identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection." N.D.N.Y. L.R. 72.1(c).
When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.
After conducting the appropriate review, the 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).
Because Magistrate Judge Peebles has accurately recited the legal standard governing review of Petitioner's habeas corpus petition pursuant to 28 U.S.C. § 2254(d), the standard is incorporated by reference in this Decision and Order, which (again) is intended primarily for the review of the parties. (Dkt. No. 19, at Part III.A.)
After carefully reviewing all of the papers in this action, including Magistrate Judge Peebles' thorough Report-Recommendation, the Court agrees with each of the recommendations made by Magistrate Judge Peebles. Magistrate Judge Peebles employed the proper legal standards, accurately recited the facts, and correctly applied the law to those facts. (Dkt. No. 19, at Parts II and III.) As a result, the Court accepts and adopts Magistrate Judge Peebles' Report-Recommendation in its entirety for the reasons stated therein, as well as the reasons stated by the parties in their responses to one another's Objection, which are summarized above in Parts I.C.2. and I.C.4. of this Decision and Order. (Dkt. No. 19, at Parts II and III; Dkt. No. 23, at 9 [attaching page "8" of Respondent's Objections and Response]; Dkt. No. 25.) To those reasons, the Court adds the following three points.
First, regarding Petitioner's Objections, the Court finds that, when the Report-Recommendation is read in its totality, it is clear that Magistrate Judge Peebles was of the correct opinion that, had Petitioner's trial counsel focused at trial on the element of vaginal penetration rather than the element of "physical[] helpless[ness]," the outcome of the trial would have been the same. (See, e.g., Dkt. No. 19, at 3 [citing the trial transcript in which the victim testified that Petitioner penetrated her vagina with his penis], 47 [noting that "there was independent witness testimony . . . from the victim herself . . . that [the victim] was asleep during the time petitioner had sexual intercourse with her"] [emphasis added].) Moreover, Magistrate Judge Peebles clearly understood, considered, and rejected the other alleged errors of Petitioner's trial counsel. (Id. at 36, 47-48, n.9.)
Second, regarding Respondent's Objections, the Court finds that the case cited by Respondent indeed says that the definition of physical helplessness "may include a sleeping victim," and that whether a victim was physically helpless at the time of the sexual conduct is a question of fact for the jury. See, supra, note 2 of this Decision and Order. However, the case in no way suggests that the definition of physical helplessness does not include a sleeping victim, or that a jury may somehow find a victim not physically helpless despite finding that the victim was asleep at the time of the sexual conduct. Indeed, in the case, the Third Department ruled that evidence that a victim was asleep on a couch was legally sufficient to permit the jury to conclude that the victim was physically helpless at the time of the sexual abuse. New York v. Manning, 81 A.D.3d 1181, 1181 (N.Y. App. Div., 3d Dept. 2011).
Moreover, the practice commentary cited by Respondent indeed observes that the definition of "physically helpless" would apply to a person "who is in a deep sleep as a result of barbiturates." See, supra, note 2 of this Decision and Order. However, as a matter of simple logic, the fact that the definition of "physically helpless" would apply to a person in a deep sleep as a result of barbiturates does not mean that the definition would not also apply to a person in a lighter sleep that was not the result of barbiturates. This is because the definition could apply to persons who are merely asleep-whether the sleep was adduced by drugs or not. Indeed, the definition does apply to such persons, according to numerous cases.
Third, and finally, while the Court agrees with Petitioner that the Court should subject Magistrate Judge Peebles' finding regarding "physical[] helpless[ness]" under New York Penal Law § 130.35(2) to merely clear-error review (because Respondent previously asserted his Objection regarding the issue of "physical[] helpless[ness]" on page 22 of his response to Petitioner's petition), the Court finds that Magistrate Judge Peebles' finding would, and does, survive even a de novo review.
