Opinion

Broxton v. Lee

Court
District Court, E.D. New York
Filed
Jul 22, 2021
Cited by
0 cases
Authority
More cited than 26.6%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

--------------------------------------------------------------x

KARIEM BROXTON, :

:

Petitioner, :

:

-against- : MEMORANDUM AND ORDER

: ADOPTING REPORT

WILLIAM LEE, : AND RECOMMENDATIONS

: 09-cv-05373 (DLI) (LB)

Respondent. :

--------------------------------------------------------------x

DORA L. IRIZARRY, United States District Judge:

On March 12, 2020, the Honorable Lois Bloom, United States Magistrate Judge, issued a

Report and Recommendations (“R&R”) recommending that this Court deny Kariem Broxton’s

(“Petitioner”) pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. See, R&R,

Dkt. Entry No. 45. The parties did not object to the R&R and, upon review and due consideration

of the R&R, the Court adopted it in its entirety by Electronic Order issued March 31, 2021.

Between April 1, 2020 and April 17, 2020, Petitioner filed requests to submit objections to the

R&R, citing late receipt of the R&R and delays related to the COVID-19 pandemic. See, Dkt.

Nos. 47-49. On May 12, 2020, Petitioner filed his objections to the R&R. Pet.’s Objs. to the R&R

(“Pet. Objs.”), Dkt. Entry No. 50. In light of Petitioner’s pro se status and delays in mailings

caused by the COVID-19 pandemic, the Court granted Petitioner’s requests to file objections and

deemed his submissions timely. Electronic Order dated October 22, 2020. Respondent opposed

Petitioner’s objections. Resp.’s Opp’n to Pet.’s Objs. to the R&R (“Resp. Opp’n”), Dkt. Entry No.

53. For the reasons set forth below, Petitioner’s objections are overruled, and the R&R is adopted

in its entirety.

STANDARD OF REVIEW

When a party objects to an R&R, a district judge must make a de novo determination as to

those portions of the R&R to which a party objects. See, Fed. R. Civ. P. 72(b)(3); United States

v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Pursuant to the standard often articulated by the

district courts of this Circuit, “[i]f a party . . . simply relitigates his original arguments, the Court

reviews the Report and Recommendation only for clear error.” Antrobus v. N.Y. City Dep’t of

Sanitation, 2016 WL 5390120, at * 1 (E.D.N.Y. Sept. 26, 2016) (internal citations and quotation

marks omitted); See also, Rolle v. Educ. Bus Transp., Inc., 2014 WL 4662267, at *1 (E.D.N.Y.

Sept. 17, 2014) (“[A] rehashing of the same arguments set forth in the original papers . . . would

reduce the magistrate’s work to something akin to a meaningless dress rehearsal.”) (internal

citations and quotation marks omitted).

On the other hand, the Court of Appeals for the Second Circuit has suggested that a clear

error review may not be appropriate “where arguably ‘the only way for [a party] to raise . . .

arguments [is] to reiterate them.’” Moss v. Colvin, 845 F.3d 516, 519 n.2 (2d Cir. 2017) (quoting

Watson v. Geithner, 2013 WL 5441748, at *2 (S.D.N.Y. Sept. 27, 2013)). Nonetheless, a court

will not “ordinarily . . . consider arguments, case law and/or evidentiary material which could have

been, but [were] not, presented to the magistrate judge in the first instance.” Santiago v. City of

N.Y., 2016 WL 5395837, at *1 (E.D.N.Y. Sept. 27, 2016) (internal citation and quotation marks

omitted).

After its review, the district court may then “accept, reject, or modify the recommended

disposition; receive further evidence; or return the matter to the magistrate judge with

instructions.” Fed. R. Civ. P. 72(b)(3); See also, 28 U.S.C. § 636(b)(1).

In reviewing Petitioner’s objections, the Court is mindful that, “[a] document filed pro se

is to be liberally construed and a pro se [pleading], however inartfully pleaded, must be held to

less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S.

89, 94 (2007) (internal quotation marks and citation omitted). Accordingly, the Court interprets

the Petitioner’s submissions “to raise the strongest arguments that they suggest.” Triestman v.

Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks, emphasis,

and citation omitted).

DISCUSSION

The Court presumes the parties’ familiarity with the R&R and Petitioner’s underlying state

court proceedings. As set forth below, Petitioner’s objections are an attempt to relitigate his

underlying petition and arguments raised on appeal in the state court. Moreover, the magistrate

judge reviewed the entire state court trial and appellate records, which contained “all of Petitioner’s

claims, including those raised in Petitioner’s second motion to vacate the conviction” pursuant to

New York Criminal Procedure Law (“CPL”) § 440.10. See, R&R at 13, 30. Thus, the Court will

apply a clear error standard of review.

First, Petitioner objects that the magistrate judge did not address the New York State

Supreme Court’s and Appellate Court’s denial of his motion for an evidentiary hearing in

conjunction with his motion to vacate his conviction pursuant to § 440.10. See, Pet. Objs. at 1-2.

However, the magistrate judge did address the underlying merits of Petitioner’s § 440.10 motion

and the quality of the evidence proffered by Petitioner, ultimately rejecting Petitioner’s underlying

claim of actual innocence based on newly discovered evidence. See, R&R at 17-23. The

magistrate judge also accounted for the fact that an evidentiary hearing was denied. See, Id. at 6-

7. Additionally, Petitioner’s arguments for a hearing, relying on CPL § 440.30, were raised in his

second motion to vacate the conviction, which the magistrate judge considered in its entirety when

issuing the R&R. See, R&R at 13; Pet.’s Second CPL § 440.10 Mot., Dkt. Entry No. 38-1. Thus,

this objection is overruled.

Second, Petitioner objects to the lack of a recommendation for an evidentiary hearing in

connection with the instant habeas corpus petition. Pet. Objs. at 3. However, Petitioner did not

seek an evidentiary hearing in the instant petition or his subsequent amendments, and merely

complained that one was denied by the state courts. Petitioner also conflates his burden of proof

with an entitlement to a hearing. Id. As Petitioner acknowledges, “[a] district court has broad

discretion to hear further evidence in habeas cases where § 2254(e)(2) does not apply.” Pet. Objs.

at 3 (quoting Drake v. Portuondo, 321 F.3d 338, 347 (2d Cir. 2003) (internal quotations and

citation omitted)). The magistrate judge correctly found that the evidence Petitioner would submit

at a hearing in support of his actual innocence “lacks indicia of credibility.” R&R at 22. Petitioner

merely disputes this finding while admitting that “the Magistrate acknowledged Mr. Broxton’s

new evidence.” Pet. Objs. at 5. Thus, Petitioner’s objection is overruled. Based on the magistrate

judge’s findings set forth in the R&R and a review of Petitioner’s submissions, this Court finds

that an evidentiary hearing would “add little or nothing to the written submissions” and, therefore,

is not required. Chang v. United States, 250 F.3d 79, 86 (2d Cir. 2001).

Third, Petitioner claims that the magistrate judge did not “differentiate which [ineffective

assistance of counsel] claims were denied” as procedurally defaulted, as opposed to on the merits,

at the state trial and appellate level. See, Pet. Objs. at 6-7. Petitioner also objects that the

magistrate judge did not discuss every single one of his alleged instances of ineffective assistance

of counsel. Id. In support, Petitioner reiterates his previously raised arguments in support of his

ineffective assistance of counsel claims. Id. at 6-10. However, these arguments were addressed

and properly rejected by the magistrate judge in the R&R. See, R&R at 23-31. While Petitioner’s

complaints about prior trial and appellate counsel were “too numerous to repeat” in the R&R, that

does not mean the magistrate judge overlooked the complaints. Id. at 23. In fact, the most serious

claim, which concerns the circumstances surrounding Petitioner’s decision to reject several alleged

plea offers and proceed to trial instead, was addressed in great detail.1 See, Id. at 23-29. Petitioner

has not pointed to any facts that were overlooked in the R&R, and it is clear that the magistrate

judge, after “[h]aving reviewed the entire record,” denied Petitioner’s claim. See, Id. at 30-31

(“the attorney errors alleged neither individually nor cumulatively meet the Strickland standard”).

Accordingly, Petitioner’s objection is overruled.

Fourth, as to his actual innocence claim, Petitioner objects to the magistrate judge’s

conclusion that the convenient timing of the submission of his newly discovered evidence rendered

it less credible. See, Pet. Objs. at 11. In so doing, Petitioner again simply disagrees with the

magistrate judge’s assessment of the record. The magistrate judge accurately and correctly

described some of Petitioner’s new evidence as the type of “eleventh-hour affidavit vouching for

a defendant and incriminating a conveniently absent suspect” that should be treated with

skepticism. R&R at 22 (citation omitted). Nevertheless, Petitioner overlooks the fact that the

timing of his new evidence was not the sole basis for the R&R’s rejection of his claim. Indeed,

the magistrate judge acknowledged that timing alone did not render the evidence incredible, and

found that, even if credited, it ultimately would not exonerate Petitioner. See, Id. at 22. Thus,

Petitioner’s objection is overruled.

Fifth, Petitioner recites his original arguments regarding prosecutorial misconduct, but fails

to raise any objections to the magistrate judge’s findings. Pet. Objs. at 12. These claims were

1 Petitioner’s assertion that he would have taken a guilty plea is belied by his claims of actual innocence, even after

his conviction at trial. See, R&R at 28-29. As Petitioner has explained, “[t]he reason petitioner has never excepted

[sic] those plea’s [sic] is because petition [sic] is innocence [sic].” Dkt. Entry No. 23 at 2.

addressed squarely and properly were rejected by the magistrate judge. See, R&R at 31-35.

Petitioner vaguely references the exclusion of a codefendant’s statement by the trial court, which

this Court construes to be a reference to his Brady claim. See, Pet. Objs. at 11; R&R at 33-35.

Petitioner does not articulate an objection to the magistrate judge’s rejection of his Brady claim,

which also was addressed properly by the magistrate judge. See, Id. Thus, to the extent objections

were raised to these findings, they are overruled.

Finally, Petitioner attaches a number of exhibits including witness affidavits and

statements, blank petition fliers, certificates and other documents pertaining to his activities while

incarcerated. See, Pet. Objs. at 13-96. Petitioner does not reference any of these materials in his

objections and does not claim that any document was overlooked by the magistrate judge. The

majority of the witness affidavits and statements were referenced and discussed by the magistrate

judge in the R&R with respect to Petitioner’s actual innocence claim. See, R&R at 17-19.2 The

remaining affidavits and statements that were not referenced specifically in the R&R do not appear

to be attached to any of Petitioner’s prior submissions or state court motions challenging his

conviction. Thus, it appears the magistrate judge did not have the opportunity to review these

remaining affidavits and statements. However, these affidavits and statements suffer from the

same infirmities that the magistrate judge found after reviewing all of the evidence provided by

Petitioner in support of his claim. A best, they are cumulative of the newly discovered evidence

discussed in the R&R and would not change the ultimate conclusion that Petitioner failed to

demonstrate his actual innocence. See, R&R at 22-23. Additionally, the magistrate judge did not

have the opportunity to consider the fliers and certificates submitted by Petitioner as they do not

2 The remaining affidavits and statements are of Sophia Goode, Christopher Darby, Robert Brown, Frank Straker,

Herbert Miranda, Timothy Acosta, and Petitioner, in addition to a transcript of an interview of Sophia Goode. See,

Pet. Objs. at 16-29, 47-48, 52-54, 56-57, 62-66.

appear to be part of Petitioner’s original submissions. Moreover, they have no bearing on any of

Petitioner’s claims in support of habeas relief. Therefore, even assuming, arguendo, that

Petitioner’s exhibits may have been overlooked, the Court finds that they do not merit a change in

the magistrate judge’s findings.

Having duly considered each of Petitioner’s objections, they are overruled. The Court does

not find any clear error in the very thorough, detailed, and well reasoned R&R. Accordingly, the

Court adopts the R&R in its entirety.

CONCLUSION

For the foregoing reasons, the Court overrules Petitioner’s objections and adopts the R&R

in its entirety. Accordingly, the petition for a writ of habeas corpus, made pursuant to 28 U.S.C.

§ 2254, is denied. Petitioner is denied a certificate of appealability as he fails to make a “substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); See, also, Fed. R. App.

P. 22(b); Lucidore v. New York State Div. of Parole, 209 F. 3d 107, 112 (2d Cir. 2000). The Court

certifies, pursuant to 28 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 purpose of any appeal. See,

Coppedge v. United States, 369 U.S. 438, 444-45 (1962). Respondent is directed to serve a copy

of this Order on Petitioner within five (5) days of this Order and immediately thereafter file proof

of such service with the Court.

SO ORDERED.

Dated: Brooklyn, New York

July 22, 2021

/s/

DORA L. IRIZARRY

United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.