Opinion
06 Civ. 13328 (RMB) (AJP).
September 27, 2007
DECISION AND ORDER
I. Background
On or about November 20, 2006, Tony Harrison ("Harrison" or "Petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition") against James J. Walsh, Superintendent of the Sullivan Correctional Facility ("Respondent"), challenging Petitioner's June 20, 2003 conviction in New York State Supreme Court, New York County, of two counts of First Degree Rape, three counts of First Degree Sodomy, one count of First Degree Robbery, and one count of First Degree Burglary in violation of New York Penal Law sections 130.35(1), 130.50(1), 160.15(1), and 140.30(2), respectively. (Petition at 2.) On October 4, 2005, the Appellate Division, First Department affirmed Petitioner's conviction. People v. Harrison, 22 A.D.3d 236, 236, 803 N.Y.S.2d 5, 6-7 (1st Dep't 2005) ("the DNA evidence was particularly powerful and established defendant's identity beyond a reasonable doubt"). On December 27, 2005, the New York Court of Appeals denied leave to appeal. People v. Harrison, 6 N.Y.3d 754, 843 N.E.2d 1162, 810 N.Y.S.2d 422 (2005).
In his Petition, Harrison argues, among other things, that the trial court erred by: (1) permitting the jury to convict him "solely on the basis of testimony of a DNA expert"; (2) violating Harrison's "federal due process rights" by "deny[ing] [Harrison's] motion to dismiss the charges . . . because they were time-barred under C.P.L. 30.10"; and (3) not "charg[ing] the jury that . . . the [prosecution] had to prove . . . the police used extensive and diligent" efforts to identify the perpetrator. (Petition at 3A; Petitioner's Traverse, dated April 4, 2007 ("Pet'r Trav."), at 5.)
On June 1, 2007, Magistrate Judge Andrew J. Peck, to whom the matter had been referred, issued a thorough Report and Recommendation ("Report") to the Court recommending that "Harrison's habeas petition . . . be denied" because, among other reasons, his claims were "procedurally barred from habeas review." (Report at 37, 46, 58.)
Judge Peck also instructed the parties that they had "10 days from service of the Report to file written objections." (Report at 58.) On June 12, 2007, this Court granted Harrison an extension until July 2, 2007 to file his objections to the Report. (See Memo Endorsement, dated June 12, 2007.) To date, neither Petitioner nor Respondent has submitted any objections to the Report.
For the reasons stated below, the Report is adopted in all respects and the Petition is denied.
II. Standard of Review
See72Grassia v. Scully892 F.2d 1619Santana v. United States476 F. Supp. 2d 30030228 U.S.C. § 636see Grassia 892 F.2d at 19Santana476 F. Supp. 2d at 302 See Pizarro v. Bartlett776 F.Supp. 815 817
Judge Peck properly determined that the "adequate and independent finding by the First Department that Harrison procedurally defaulted on his claim concerning the sufficiency of the DNA evidence" barred federal review. (Report at 37.) See also Velasquez v. Leornardo, 898 F.2d 7, 9 (2d Cir. 1990). Judge Peck also correctly found that "Harrison never raised a [federal] due process claim in state court," nor has he "made a showing of actual innocence," which is required to "avoid a procedural default on his unexhausted [federal due process] claim." (Report at 46, 51-2.) See Harris v. Reed, 489 U.S. 255, 262 (1989). Finally, Judge Peck concluded correctly that "Harrison's argument about the trial judge's failure to charge the jury is unpreserved [because] Harrison was not pro se at that time, and his attorney neither requested any such charge nor objected to the charge as given." (Report at 58.) See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).
IV. Certificate of Appealability
V. Conclusion and Order
28 U.S.C. § 2253see Lucidore v. N.Y. State Div. of Parole 209 F.3d 107112