Opinion
18 Civ. 5768 (PMH)(JCM)
06-11-2021
TRAVIS MORTN, Petitioner, v. EARL BELL, Respondent.
REPORT AND RECOMMENDATION
JUDITH C. McCARTHY, UNITED STATES MAGISTRATE JUDGE
To the Honorable Philip M. Halpern, United States District Judge:
Petitioner Travis Morin ("Petitioner"), proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Petition") on June 16, 2018.(Docket No. 3 at 15). On September 6, 2018, Respondent Earl Bell ("Respondent") opposed the Petition, (Docket No. 9). For the reasons set forth below, I respectfully recommend that the Petition be denied in its entirety.
A pro se prisoner's papers are deemed filed at the time he or she delivers them to prison authorities for forwarding to the court clerk. Houston v. Lack, 487 U.S. 266, 276 (1988); see also Walker v. Jastremski, 430 F.3d 560 (2d Cir. 2005) (analyzing the Houston "prison mailbox rule"). Petitioner certified that his Petition was delivered to the prison authorities for mailing on June 16, 2018. (Docket No. 3 at 15). Accordingly, because the timeliness of the Petition is not challenged, the Court adopts Petitioner's dates for this filing and all other filings discussed herein.
All page number citations to the record refer to the ECF page number unless otherwise noted.
I. BACKGROUND
A. The Crimes and Indictment
Petitioner's convictions arise out of an incident that occurred on June 2, 2011 when Petitioner, Charles Blanchard ("Blanchard") and Patrick Smith ("Smith") forced Epifanio Medina ("Medina") into Jessica French's ("French") white Cadillac ("Cadillac") outside of a liquor store ("Home Liquors") in Passaic, New Jersey. Petitioner, Blanchard and Smith proceeded to rob and beat Medina, eventually leaving him for dead at Gaymark Preserve in North Salem, New York.
Loved ones nicknamed Medina "Mr. T" and "Liberace" because of his ubiquitous gold jewelry. (See, e.g., Trial Tr. at 585-88, 1151, 1510). Medina was specifically known for his elaborate chains, including his "eagle" shaped pendant and "Santa Barbara" medallion, as well as his sought-after rings. (See, e.g., Id. at 592, 1152). Likewise, Medina was notorious for his tattoos and for carrying a lot of cash, which he would "roll[] up with rubber bands" and keep in his pockets. (Id. at 1509, 1513). A native of Bronx, New York, Medina moved to Passaic in 1999 with his wife Esperanza Hernandez Medina ("Hernandez Medina"). While living in Passaic, Medina worked at Home Liquors unloading delivery trucks. (Id. at 1152, 1512). In 2006, Hernandez Medina moved to Lehigh Acres, Florida to live closer to her sister, Blanca Santiago ("Santiago"). (Id. at 1514). Medina stayed with his wife in Lehigh Acres part-time and spent the balance of his time in Passaic. (Id. at 1537).
Refers to the transcript of the trial held before the Honorable Robert A. Neary on September 16, 17, 18, 19, 23, 25, 30 and October 2, 3, 7, 8, 9, 10, 11, 15, 16, 17, 2013.
In the summer of 2006, Smith, Santiago's foster son, moved to Lehigh Acres with his girlfriend, French, and their infant son. (Id. at 909-11, 1516). French and Smith had a close relationship with Hernandez Medina and Medina, who they referred to as "Titi" and "Thio," Spanish for "aunt" and "uncle." (Id. at 910-11). In 2010, Hernandez Medina's son, Carlos Garcia ("Garcia"), moved in with his mother in Lehigh Acres. (Id. at 1515, 1519). Garcia and Smith became close friends. (Id. at 910-12, 972-73, 1068).
By 2010, tension was brewing in Lehigh Acres. During that time, Smith was unemployed and financially supported by French. (Id. at 912). This financial dynamic ruptured French and Smith's relationship and French began seeing other men romantically. (Id. at 911, 972). Moreover, Garcia and Medina were not getting along. (Id. at 1538). Animosity between the men culminated on March 24, 2011, when Garcia hit Medina, which marked a turning point in the men's already sour relationship. (Id. at 918, 1555). Thereafter, Garcia gave Smith the "go-ahead" to seek revenge on Medina, informing Smith that Medina carried $80,000.00 in cash on him at all times. (Id. at 918-19). In April 2011, Smith, still out of work, repeatedly told French that he was "going to get" Medina's money. (Id. at 919-20).
On April 5, 2011, Medina was hospitalized in Lehigh Acres after being beaten by an unknown assailant. (Id. at 920, 1522-23). Later that day, French overheard an "argu[ment]" between Smith and Smith's friend, in which Smith's friend complained to Smith that he "broke his hand." (Id. at 921). Smith responded that he "couldn't [have] help[ed] [him]" because Medina "couldn't see" that he was involved. (Id.). A few weeks later, on April 30, 2011, Medina returned to the Northeast, eventually settling in Passaic. (Id. at 585, 588, 1523). Intent on "getting" Medina's money, Smith went to Passaic from May 13-16, 2011 to search for Medina. (Id. at 924, 1636). Smith reported to French that he located Medina but was unable to procure his money. (Id. at 924). Smith returned to Florida on May 16, 2011. (Id.).
In or around May 26, 2011, Smith and French traveled in French's Cadillac to New Hampshire to attend French's younger brother, Taylor French's, high school graduation. (Id. at 616-17, 925-26). The pair stayed with French's mother, Penny Young ("Young"), upon their arrival. (Id. at 1712).
On May 29, 2011, Smith, French and French's half-brother, Blanchard, drove French's Cadillac to Passaic, in search of Medina. (Id. at 930). As they drove through Franklin, New Hampshire, another driver cut in front of French's car. (Id. at 1091, 1730). French was outraged and pursued the driver until both cars stopped at a light. (Id. at 1713). Blanchard exited the Cadillac, jumped on the hood of the driver's vehicle, and began kicking the windshield. (Id. at 1713). French also exited the car, "pulled out a blade," started "stabbing the window," and eventually, punched one of the vehicle's occupants. (Id. 1713-14). In connection with this incident, the Franklin Police Department ("FPD"), alerted its officers to "be on the lookout" for French's Cadillac. (Id. at 1479). The cohort continued to Passaic. (Id. at 1742).
Cell phone records revealed that the group arrived in Passaic at approximately 7:30 p.m. on the evening of May 29, 2011. (Id. at 1638-42). Garcia informed Smith that Medina spent most of his time socializing in Home Liquor's parking lot, where he drank beer and smoked cigarettes. (Id. at 717, 733, 930, 1093, 1161). They spent the evening in Passaic and went to Home Liquors the following morning. (Id.). French waited in the car, while Smith and Blanchard prowled the streets for Medina. (Id. at 747-51, 755). The men eventually approached Ronald Jackson ("Jackson"), a homeless former Home Liquors employee who knew Medina. (Id. at 755, 1154). Smith offered Jackson $20.00 to take them to Medina's apartment. (Id. at 932, 1154). Jackson got into French's Cadillac and directed them to an abandoned building. (Id. at 933). Medina was nowhere to be found. (Id.). French, Smith and Blanchard drove back to New Hampshire on the evening of May 30, 2021. (Id. at 1646).
The authorities tracked Blanchard and French from New Hampshire to Passaic on May 29-30, 2011 through their cell phone records. (See, e.g., Trial Tr. at 1650-67). Smith left his phone in Florida during his trip to the Northeast and was sharing a phone with French from May 25, 2011 to June 10, 2011. (Id. at 951, 1625-26, 1669).
On June 2, 2011 - Smith's birthday - Smith, French and Blanchard once again traveled from New Hampshire to Passaic, this time in Young's white Chevy Impala ("Impala") and accompanied by Petitioner, Blanchard's childhood friend. (Id. at 619, 636, 653, 925, 964). The group drove Young's Impala to avoid attracting police attention after the May 29, 2011 road rage incident. (See Id. at 653, 1091). Kelsey Blanchard ("Kelsey"), Blanchard's sister, met Blanchard on the morning of June 2, 2011 to return some of his personal items. Kelsey observed Blanchard, Smith, French and Petitioner together in Young's Impala. (Id. at 634-35). The foursome left New Hampshire around 10:00 a.m., briefly stopped in the Bronx, and arrived at Home Liquors at approximately 4:00 p.m. (Id. at 1648-59). Shortly after 4:00 p.m., Blanchard spotted Medina, who was wearing a red t-shirt and a hat. (Id. at 938). Petitioner, who was standing close by, "hit [Medina] a couple of times" and helped Blanchard force him onto the floor of the Cadillac's back seat. (Id. at 938-39). Blanchard stripped Medina of his jewelry, handed some to Petitioner, and placed the rest in the Cadillac's center console. (Id. at 940, 944). Thereafter, the group stopped for gas, which Smith insisted on pumping himself- despite the gas station attendant's protests - to prevent anyone from seeing Medina curled up in the back seat. (Id. at 942-43). French then drove towards the Bronx, where they planned to leave Medina. (Id. at 944). While en route, Hernandez Medina called Medina's cell phone, which French took apart and placed in the center console of the Cadillac. (Id. at 949).
Police determined Petitioner's whereabouts on June 2-3, 2011 based on his cell phone records. (Trial Tr. at 1650-67). On these dates, Petitioner was using a pink Razr flip phone given to him by his friend, Alice Dionne ("Dionne"). (Id. at 1247). The Razr phone was registered to Debra Richey, Dionne's mother. (Id. at 1248).
Kelsey easily identified the passengers in Young's car. French and Kelsey are half-sisters and Petitioner had been best friends with Kelsey's brother since childhood. (Trial Tr. at 630, 636). Further, Smith is the father of Kelsey's nephew. Kelsey also immediately recognized her mother's Impala, which had a vanity license plate reading: "PENDAWG." (Id. at 630, 653).
Stuck in traffic and with no place to let Medina out of the car, the group drove North toward Westchester County, New York. They eventually stopped the car in a secluded, wooded area near Dingle Ridge Road in North Salem. (Id. at 946). Blanchard grabbed Medina and he, Petitioner and Smith forced Medina into the woods. (Id. at 947). A few minutes later, Smith, Blanchard and Petitioner returned from the woods without Medina. (Id. at 949). Danielle Mandra ("Mandra"), who was driving on Dingle Ridge Road at around 10:30 p.m., observed two "twenty-something year old" white men exiting the woods. (Id. at 1176-78). The men appeared surprised to see her car. (Id. at 1178). The group returned to the Cadillac and drove to a gas station for fuel and snacks. (Id. at 949). Shortly thereafter, Blanchard stated that he had forgotten something. (Id.). French drove them back to the woods. (Id.). French, Petitioner and Smith waited in the car while Blanchard ran back into the darkness. (Id. at 950). Blanchard returned a few minutes later holding a bag. (Id.).
Petitioner and Blanchard are Caucasian; Smith is African-American.
At approximately 12:30 a.m. on June 3, 2011, after obtaining Medina's address from Garcia, the group drove back to Passaic. (Id. at 952). French and Smith ransacked Medina's apartment, which they entered using a key that they took from Medina's person. (Id. at 953). Smith found $18,000.00 in cash and a bag of marijuana. (Id. at 953-55, 1527).
Smith, French, Blanchard and Petitioner returned to New Hampshire in the early morning of June 3, 2011. (Id. at 955, 1577). Later that morning, Smith, French and Blanchard visited Young at the nursing home where she worked to return her Impala. (Id. at 656). Young observed Petitioner, who she had known since he was a child, walking away from the nursing home. (Id.). After chatting for a few minutes, Smith handed Young $1,000.00 in cash. (Id. at 657). On her way home from work, Young heard a phone ringing in the back seat of her car. (Id. at 658). She answered the phone and recognized the caller as Petitioner's mother, Lynn. (Id. at 658-59). Later that day, Petitioner came to Young's house and retrieved his phone. (Id. at 659). When Petitioner returned home, he confided in his sister, Tasha Morin ("Tasha"), that he "robbed a guy" while in "New York." (Id. at 872-74).
Several months later, a slip of paper with the words "E. Medina" and the number to Medina's off-shore bank account, as well as traces of Medina's blood were found in the back seat of the Impala. (Id. at 1359-63, 1367, 1530-32).
At approximately 1:00 a.m. on June 8, 2011, Officer Adam Donnelly ("Donnelly") was driving near Griffin Beach, a state park surrounding Webster Lake in Franklin, New Hampshire, when he observed a group of individuals sitting at a picnic table drinking alcohol. (Id. at 774-75). Petitioner was among the individuals at the beach. (Id. at 776). Officer Donnelly asked Petitioner for identification. (Id. at 777). A brief struggle ensued and Petitioner ran into Webster Lake. (Id.). Officer Donnelly did not pursue Petitioner into the lake. (Id.). Before leaving Griffin Beach, Officer Donnelly recovered a backpack containing, inter alia, clothing and jewelry. (Id. at 781, 786). Medina's beloved Santa Barbara and eagle pendants were among the items found in the backpack. (Id. at 870).
The next day, June 9, 2011, the FPD procured an arrest warrant for Petitioner for resisting arrest at Griffin Beach. (Id. at 794). At approximately 6:00 p.m., Officer Daniel Ball ("Ball") apprehended Petitioner at a friend's apartment. (Id. at 805-09). At the time of his arrest, Petitioner was wearing a red t-shirt and a notable amount of gold jewelry, which was confiscated by the FPD. (Id. at 809-10). While Petitioner was incarcerated at Merrimack County Jail, Tasha retrieved the jewelry from the FPD and pawned it at Petitioner's behest. (Id. at 862, 870).
On June 12, 2011, at approximately 1:30 p.m., Valentin Godinez ("Godinez") was horseback riding along Dingle Ridge Road when he observed an object in the distance that looked like a "Halloween" decoration. (Id. at 512-13). Godinez's horse reared as they approached the object, which Godinez soon realized was a dead body. (Id. at 514). State Trooper Paul Carinci ("Carinci") was the first to arrive on the scene. (Id. at 530). Carinci observed that the body was "highly decomposed [and] covered in maggots." (Id. at 536). The decedent was found wearing only jean shorts, a black belt, underwear and socks, and did not have a wallet or cell-phone on his person. (Id. at 546-48). Police later identified the decedent as Medina through his fingerprints. (Id. at 576).
The New York State Police lead an extensive investigation with the assistance of the FPD, which culminated in the arrests of Petitioner, French, Smith and Blanchard. (Id. at 1194, 1199, 1216). All four individuals were indicted in Westchester County, New York under Indictment Number 12-0093/12-0650 for, inter alia, two counts of Murder in the Second Degree, Kidnapping in the First Degree, Robbery in the Second Degree and Unlawful Imprisonment in the First Degree. (Docket No. 10-1). French plead guilty to Robbery in the Second Degree and agreed to testify against her co-conspirators in exchange for a reduced prison sentence. (Trial Tr. at 905-06). Blanchard plead guilty to second degree murder and was sentenced to eighteen years' imprisonment. (See Pretrial Hearing Tr. at 130).
Pursuant to a plea agreement, French was sentenced on May 14, 2012 to six years' imprisonment followed by two-and-a-half years of post-release supervision. (See Trial Tr. at 905-06).
Refers to the transcript of Petitioner's pretrial hearings, which were held before the Honorable Robert A. Neary on September 12 and 13, 2013.
B. Pretrial Hearings
Petitioner was granted Huntley, Mapp and Sandoval hearings on September 9, 2013. (September 9, 2013 Trial Tr. at 3-4; Pretrial Hearing Tr. at 3, 6). Petitioner's Huntley hearing was held on September 12, 2013. (Pretrial Hearing Tr. at 23-48). The People represented that they did not intend to use Petitioner's statements to law enforcement during their case-in-chief but sought to admit those statements for impeachment purposes should Petitioner testify. (Id. at 3). The People called Investigator Brahim Dedusevic ("Dedusevic"), (id. at 24-42), who testified that he interviewed Petitioner on October 11, 2011 at the Department of Probation in Concord, New Hampshire about the events that transpired on June 8, 2011 at Griffin Beach. Dedusevic testified that Petitioner claimed that he did not own a cell phone. (Id. at 40). The defense did not call any witnesses. On September 13, 2013, the court ruled that Petitioner's October 11, 2011 statements to Dedusevic were admissible for impeachment purposes. (Id. at 126).
Petitioner's Sandoval hearing was held on September 12, 2011. (Id. at 66-86). The court held that if Petitioner testified, several of his prior convictions would be admissible for impeachment. (Id. at 85-86). Petitioner also moved to sever his trial from co-defendant Smith's, arguing that their defenses were antagonistic. (Id. at 130). The Court denied Petitioner's motion to sever the trials, but ordered that separate juries be empaneled for each defendant. (Id. at 130-31; see also Trial Tr. at 440).
The court ruled that if Petitioner testified, the People were authorized to question him about: (1) his conviction for burglary but not the underlying facts, (id. at 75-76); (2) his conviction for receiving stolen property, resisting arrest and reckless conduct and the underlying facts of those convictions which related to an incident in which Petitioner stole a car, crashed it on the highway and fled the scene, (id. at 72-73); and (3) his conviction for stealing approximately $1,000 in ski equipment, (id. at 86).
Petitioner' sMapp hearing was held on September 12, 2011. (Id. at 51-66). Petitioner sought to suppress the backpack recovered by Officer Donnelly at Griffin Beach on the ground that it was unconstitutionally seized. (Id. at 6). Officer Donnelly testified on behalf of the People. (Id. at 55-65). The defense did not call any witnesses. On September 13, 2011, the court determined that Donnelly's seizure of the backpack comported with the Fourth Amendment and that the backpack was admissible at trial. (Id. at 125).
C. Trial and Verdict
The Honorable Robert A. Neary presided over the trial, which was held on September 16, 17, 18, 19, 23, 25, 30 and October 2, 3, 7, 8, 9, 10, 11, 15, 16, 17, 2013. Jury selection took place on September 16, 17, 18, 19, 2013. (Trial Tr. at 1-428). The trial commenced on September 23, 2013 with opening statements. (Id. at 453-508). In support of its case-in-chief, the People called: (1) Godinez, (id. at 508-33); (2) Trooper Carinci, (id. at 534-41); (3) State Trooper Richard Swawola, (id. at 541-70); (4) Detective Roger Piccirilli, (id. at 570-81); (5) Daniel Cosme, (id. at 581-614); (6) Barbara French, (id. at 615-25); (7) Kelsey Blanchard, (id. at 629-46); (8) Young, (id. at 646-95); (9) Ushir Patel, (id. at 696-709); (10) Investigator Dedusevic, (id. at 709-17); (11) Investigator Rodriguez, (id. at 722-63, 813-43); (12) Officer Donnelly, (id. at 772-803); (13) Officer Ball, (id. at 804-12); (14) Tasha, (id. at 854-97); (15) French, (id. at 900-1147); (16) Jackson, (id. at 1149-75); (17) Mandra, (id. at 1175-87); (18) DebraRichey, (id. at 1244-55); (19) Dr. Benjamin Bristol, (id. at 1256-1306); (20) Dr. Kunjlata Ashar, (id. at 1307-48); (21) John Sonia, (id. at 1349-71); (22) Officer Cornelius Merritt, (id. at 1371-75); (23) Brandi Clark, (id. at 1376-89); (24) Lynn Stout, (id. at 1393-1452); (25) Marc Jardullo, (id. at 1453-77); (26) Ralph Hale, (id. at 1477-83); (27) Officer David Spida, (id. at 1488-1506); (28) Hernandez Medina, (id. at 1506-62); (29) Officer Paul Schneeloch, (id. at 1563-1614); and (30) DeanDelitta, (id. at 1624-79).
In support of its case against Smith, the People additionally called Smith's childhood friends, Oscar Nunez ("Nunez"), (Trial Tr. at 1210-43), and Christopher Noble ("Noble"), (id. at 1188-1209). Petitioner's jury was excused during Nunez and Noble's testimony. As discussed infra, Noble was called by the People as a rebuttal witness after Smith testified on behalf of Petitioner. (Id. at 1949-59). Petitioner's jury remained in the courtroom for Noble's rebuttal testimony.
At the close of Petitioner's case, Petitioner's trial counsel moved to dismiss the indictment, arguing that the People failed to establish a prima facie case. (Id. at 1681-82). The motion was denied and Smith was called to testify in his own defense. (Id. at 1682). Before Smith took the stand, Petitioner moved for his jury to remain in the courtroom during Smith's testimony. (Id. at 1683). Smith's counsel indicated that Smith would not implicate Petitioner in the crimes. (Id.). Nevertheless, the Court denied Petitioner's motion, stating that separate juries were empaneled to avoid a Bruton problem and that the court would not risk a mistrial. (Id. at 1685-86). The court did, however, present Petitioner with the option of calling Smith as a witness in his defense. (Id. at 1687).
Petitioner's jury was excused, (id. at 1689), and Smith testified on behalf of himself. (Id. at 1693-1835). Thereafter, Petitioner called Smith to testify in his defense. (Id. at 1843-1943). Smith testified that he was with Petitioner on the morning of June 2, 2011, but that Petitioner left before the group departed for New Jersey. (Id. at 1889-91). Smith testified that a fourth individual, who he referred to as "JD," traveled with him, French and Blanchard to Passaic. (Id. at 1845-46, 1918-20). After Smith's testimony, the defense rested on behalf of Petitioner. (Id. at 1943). Petitioner renewed his motion to dismiss the indictment, which was denied. (Id. at 1943-44). The People called Christopher Noble ("Noble") to rebut Smith's testimony on behalf of Petitioner. (Id. at 1949-59).
The People rested on October 10, 2013, (id. at 1960), and the parties thereafter delivered summations, (id. at 2022-77). Petitioner's jury was charged on October 15, 2013. (Id. at 2138-78). At the charging conference, both the prosecution and defense requested that the jury be charged on territorial jurisdiction and venue. (Id. at 2137). Concerning jurisdiction, the court instructed the jury that they must:
Summations were delivered to co-defendant Smith's jury on October 11, 2013. (Trial Tr. at 2019-77).
[F]irst determine whether the State of New York has jurisdiction to prosecute the crimes [charged]. Under our law, a person . . . may be convicted in the State of New York of an offense defined by the laws of this State and committed by that person's own conduct or the conduct of another with whom he or she is acting in concert when such conduct occurs within this state sufficient to establish one or more of the elements of such an offense . . . The People have the burden to prove beyond a reasonable doubt that the State of New York has jurisdiction.(Id. at 2176). With respect to venue, the jury was instructed that before determining guilt, they were to:
"[D]etermine whether Westchester County is the proper venue or place to prosecute the crimes. . . . [A] person may be convicted in this county of an offense committed by that person's own conduct
or the conduct of another with whom he or she is acting in concert when such conduct occurred within this county sufficient to establish an element of. . . [the] offense."(Id. at 2177). During deliberations, Petitioner's jury submitted a note that read: "define[] if and at what point [in] the commission of the crime is the venue established, example, kidnapping presumably took place in New Jersey, but continued in New York and/Westchester, example, robbery equals the same example." (Id. at 2183). The parties agreed that the court should read back its instruction concerning venue in response to the note. (Id. at 2187). The court read back the venue instruction. (Id. at 2187-88). Subsequently, Petitioner's jury submitted another note stating: "[w]e agree that all charges should take place in Westchester County." (Id. at 2189).
The jury deliberated for a total of two days before reaching a verdict. The jury found Petitioner guilty of Robbery in the Second Degree and Unlawful Imprisonment in the First Degree. (Id. at 2217). Petitioner was found not guilty of Murder in the Second Degree and Kidnapping in the First Degree. (Id. at 2216). On April 9, 2014, the trial court sentenced Petitioner to a determinate sentence of fifteen years' imprisonment followed by five years of post-release supervision for the robbery conviction. (Sentencing Tr. at 13-14). Petitioner was sentenced to one-and-one-third to four years' imprisonment for the false imprisonment conviction, which was to run concurrently with his robbery sentence. (Id. at 14).
Refers to the transcript of Petitioner's sentencing before the Honorable Robert A. Neary, which occurred on April 9, 2014.
D. N.Y. C.P.L. § 330.30(1) Motion
On December 10, 2013, Petitioner filed a N.Y. C.P.L. § 330.30(1) motion ("330.30 Motion") seeking to set aside the guilty verdicts against him. (Docket No. 10-2). Petitioner's 330.30 Motion was based on alleged new evidence; specifically, a letter from Tasha recanting her trial testimony and claiming that she was coerced into testifying against Petitioner by the police. (Id. at 2, 5, 8-10). Petitioner also claimed that the evidence at trial did not support a finding that Westchester County was a proper venue for his prosecution. (Id. at 7). The People opposed the motion, (Docket No. 10-3), which was denied in its entirety on March 5, 2014, (Docket No. 10-4). The court ruled, inter alia, that the jury was properly charged on venue and that the record supported the jury's finding that second degree robbery occurred in Westchester County. (Id. at 4-5). E. Direct Appeal
On June 20, 2015, Petitioner perfected his direct appeal to the New York State Appellate Division for the Second Department ("Appellate Division"), which raised the following four grounds for relief: (1) the trial court's Sandoval ruling deprived Petitioner of his "Due Process [r]ight to [t]estify," (Docket No. 10-5 at 15-24); (2) the trial court's erroneous admission of Medina's autopsy photo violated due process, (id. at 25-28); (3) the trial court's decision not to allow Petitioner's jury to hear Smith's testimony in support of his own defense violated due process, (id. at 29-35); and (4) the trial court's decision to allow Noble to testify as a rebuttal witness after Smith was called in Petitioner's defense violated due process, (id. at 35-41). Petitioner submitted a pro se letter on March 24, 2016, raising three additional grounds for relief: (1) the trial court lacked territorial jurisdiction; (2) venue was not proper; and (3) Petitioner's trial counsel was constitutionally ineffective. (Docket No. 10-7). The People opposed Petitioner's appeal on October 20, 2015 and August 4, 2016, (Docket Nos. 10-6, 10-8), which was denied in its entirety on January 18, 2017. See People v. Morin, 146 A.D.3d 901 (2d Dep't 2017). Petitioner submitted an application for leave to appeal to the New York State Court of Appeals ("Court of Appeals") on January 24, 2017, incorporating the issues raised in his counseled and pro se appellate briefs by reference. (Docket No. 10-10). Petitioner submitted a supplemental pro se letter in support of his leave application on February 31, 2017. (Docket No. 10-11). The People opposed Petitioner's application on February 23, 2017. (Docket No. 10-12). Petitioner's leave application was subsequently denied by the Court of Appeals on March 29, 2017. (Docket No. 10-13).
F. Federal Habeas Corpus Proceedings
Petitioner filed the instant Petition on June 16, 2018. (Docket No. 3). Respondent opposed the Petition on September 6, 2018, (Docket No. 9), accompanied by a supporting memorandum of law, (Docket No. 10) ("Resp't Br.").
II. APPLICABLE LAW
"The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"). Harrington v. Richter, 562 U.S. 86, 97 (2011). "Before a federal district court may review the merits of a state criminal judgment in a habeas corpus action, the court must first determine whether the petitioner has complied with the procedural requirements set forth in 28 U.S.C. §§ 2244 and 2254." Visich v. Walsh, No. 10 Civ. 4160 (ER)(PED), 2013 WL 3388953, at *9 (S.D.N.Y. July 3, 2013). The procedural and substantive standards are summarized below.
If Petitioner does not have access to cases cited herein that are available only by electronic database, then he may request copies from Respondent's counsel. See Local Civ. R. 7.2 ("Upon request, counsel shall provide the pro se litigant with copies of such unpublished cases and other authorities as are cited in a decision of the Court and were not previously cited by any party.").
A. Exhaustion as a Procedural Bar
A habeas petition may not be granted unless the petitioner has exhausted his claims in state court. See 28 U.S.C. § 2254(b). As the statute prescribes:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254(b)-(c).
Exhaustion requires a prisoner to have "fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts." Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (internal quotations omitted). If a petitioner "cites to specific provisions of the U.S. Constitution in his state court brief, the petitioner has fairly presented his constitutional claim to the state court." Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001); see also Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (even "a minimal reference to the Fourteenth Amendment" presents a federal constitutional claim to the state courts). A petitioner may fairly present his claim even without citing to the U.S. Constitution, by, inter alia: "(a) [relying] on pertinent federal cases employing constitutional analysis, (b) [relying] on state cases employing constitutional analysis in like fact situations, (c) [asserting] ... [a] claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) [alleging] ... a pattern of facts that is well within the mainstream of constitutional litigation." Daye v. Attorney Gen. of State o/N.Y., 696 F.2d 186, 194 (2d Cir. 1982). Fair presentation includes petitioning for discretionary review in the state's highest appellate court. See O 'Sullivan v. Boerckel, 526 U.S. 838, 839-40 (1999) ("[A] state prisoner must present his claims to a state supreme court in a petition for discretionary review in order to satisfy the exhaustion requirement[.]").
B. Adequate and Independent State Grounds as a Procedural Bar
"It is well established that federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that 'is independent of the federal question and adequate to support the judgment.'" Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). "A state court decision will be 'independent' when it 'fairly appears' to rest primarily on state law." Taylor v. Connelly, 18 F.Supp.3d 242, 253 (E.D.N.Y. 2014) (quoting Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006)). Typically, a ground is adequate "only if it is based on a rule that is 'firmly established and regularly followed' by the state in question." Garcia, 188 F.3d at 77 (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)); see also Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003).
C. AEDPA Standard of Review
When a federal court reaches the merits of a habeas petition, AEDPA prescribes a "highly deferential" standard for reviewing state court rulings. Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015). An application for a writ of habeas corpus:
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254(d)(1)-(2).
Courts have interpreted the phrase "adjudicated on the merits" in AEDPA as meaning that a state court "(1) dispose[d] of the claim on the merits, and (2) reduce[d] its disposition to judgment." Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (internal quotation marks omitted). Courts examine the "last reasoned decision" by the state courts in determining whether a federal claim was adjudicated on the merits. Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.").
If a state court adjudicates a federal claim on the merits, the Court must apply AEDPA deference to that state court ruling. 28 U.S.C. § 2254(d)(1)-(2). In the context of AEDPA deference, the phrase "clearly established Federal law" means "the holdings, as opposed to the dicta, of [the Supreme Court of the United States'] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 365 (2000). Circuit precedent and "of course, . . . state-court decisions, treatises, or law review articles," are not "clearly established" federal law. Kernan v. Cuero, 138 S.Ct. 4, 9 (2017). "A state court decision is contrary to such clearly established federal law if it 'applies a rule that contradicts the governing law set forth in the Supreme Court's cases' or 'if the state court confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from its precedent.'" Lewis v. Conn. Comm'r of Corr., 790 F.3d 109, 121 (2d Cir. 2015) (quoting Boyette v. Lefevre, 246 F.3d 76, 90 (2d Cir. 2001)). A state court decision involves an "unreasonable application" of Supreme Court precedent if: (1) "the state court identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies it to the facts of the particular state prisoner's case," or (2) "the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 407. For a federal court to find a state court's application of Supreme Court precedent unreasonable, the state court's decision must have been more than "incorrect or erroneous" - it must have been "objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75 (2003). In other words, "[a] state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of [the state court's] decision." Richter, 562 U.S. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652, 665 (2004)). However, "the trial court's decision need not teeter on 'judicial incompetence' to warrant relief under § 2254(d)." Alvarez v. Ercole, 763 F.3d 223, 229 (2d Cir. 2014) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). If a state court decision does not contain reasons for the dismissal of a defendant's federal claim, the Court must "consider 'what arguments or theories . . . could have supported[] the state court's decision,' and may grant habeas only if 'fairminded jurists could [not] disagree that those arguments or theories are inconsistent with the holding in a prior decision of the Supreme Court." Lynch v. Superintendent Dolce, 789 F.3d 303, 311 (2d Cir. 2015) (alterations in original) (quoting Richter, 562 U.S. at 102).
If, by contrast, a state court does not adjudicate a federal claim on the merits, "AEDPA deference is not required. . . . [and] conclusions of law and mixed findings of fact and conclusions of law are reviewed de novo." DeBerry v. Portuondo, 403 F.3d 57, 66-67 (2d Cir. 2005).
III. DISCUSSION
Although consolidated in a single ground for relief, Petitioner advances two discrete arguments on habeas review: (1) New York State lacked territorial jurisdiction to prosecute him, contravening the Due Process clause; and (2) Westchester County was an improper venue for his prosecution in violation of the Sixth Amendment's vicinage clause ("Vicinage Clause"). (Petition at 3-13). The Court will address each of these arguments in turn.
Petitioner cites to federal case law discussing both jurisdiction, see, e.g., Strassheim v. Daily, 221 U.S. 280 (1911), and venue, see, e.g., United States v. Cabrales, 524 U.S. 1 (1998). The Court will therefore consider Petitioner's jurisdiction and venue arguments as separate grounds for habeas relief, as the Court is obligated to construe a pro se petition liberally and interpret it to raise the best arguments that it suggests. See Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996).
A. Territorial Jurisdiction
Petitioner contends that New York lacked jurisdiction to prosecute him for robbery and that his prosecution thus violated the Fourteenth Amendment. (Petition at 3). Petitioner properly exhausted this claim on direct appeal and in his letter seeking leave to the Court of Appeals, (Docket Nos. 10-7 at 13; 10-11 at 2-4), which was denied on the merits by the Appellate Division. See Morin, 146 A.D.3d at 902.
"[A] challenge to a court's territorial jurisdiction cannot be waived." Polk v. Annucci, 15 Civ. 4979 (VSB)(HBP), 2018 WL 6003976, at *7 (S.D.N.Y.Mar. 27, 2018). Thus, "the question of the State's inherent authority to prosecute does not need to be raised or preserved at trial in order to be reviewed on appeal." People v. Conception, 17 N.Y.3d 192, 199 (2011). Accordingly, although Petitioner did not object to the court's territorial jurisdiction at trial, the Appellate Division properly adjudicated the merits of Petitioner's jurisdictional claim on appeal. See Morin, 146 A.D.3d at 902.
Petitioner's claim is not cognizable on habeas review as it does not present a question of federal law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."); see also Rackley v. Sloan, Case No. 1:16-cv-1845, 2018 WL 5288553, at *25 (N.D. Ohio Mar. 26, 2018) (denying petitioner's claim that the state court lacked jurisdiction over his prosecution on the ground that the claim raised a non-cognizable issue of state law). The "[determination of whether a state court is vested with jurisdiction under state law is a function of the state courts, not the federal judiciary." Wills v. Egeler, 532 F.2d 1058, 1059 (6th Cir. 1976); United States ex rel. Herrington v. Mancusi, 415 F.2d 205, 209 (2d Cir. 1969) ("[N]o federal court to our knowledge has ever granted a writ where a state court's asserted lack of jurisdiction resulted solely from the provisions of state law.").
New York Criminal Procedure Law ("N.Y. C.P.L.") § 20.20 sets forth New York's jurisdiction to prosecute criminal cases. Petitioner argues that N.Y. C.P.L. § 20.20(1)(a), which requires that "an element" of robbery occur in New York, was not satisfied. Id. § 20.20(1)(a). As such, Petitioner's claim presents an issue of state law that is not cognizable on habeas review. See Mancusi, 415 F.2d at 209. Petitioner claims that the state court incorrectly determined that N.Y. C.P.L. § 20.20(1)(a) was satisfied, which he contends implicates the Fourteenth Amendment. This argument fails. "[T]here is nothing in the clauses of the 14th Amendment. . . which converts an issue respecting the jurisdiction of a state court. . . into anything other than a question of state law[.]" Gasquet v. Lapeyre, 242 U.S. 367, 369 (1917). For the foregoing reasons, the Court respectfully recommends that Petitioner's territorial jurisdiction claim be denied.
N.Y. C.P.L. § 20.20 provides that "a person may be convicted in the criminal courts of [New York] of an offense defined by the laws of [New York], committed either by his own conduct or by the conduct of another for which he is legally accountable . . . when," relevant here, "[c]onduct occurred within this state sufficient to establish: (a) An element of such offense . . ."
B. Venue
Petitioner further alleges that he is entitled to habeas relief because he was tried in Westchester County for crimes he committed in New Jersey, violating the Vicinage Clause. Petitioner properly exhausted this claim, (Docket Nos. 10-2 at 6-7; 10-7 at 13-17; 10-10), which was denied by the Appellate Division on the merits. See Morin, 146 A.D.3d at 902. Nevertheless, Petitioner's claim does not concern "clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1); see Woods v. Donald, 575 U.S. 312, 316(2015).
The Sixth Amendment's Vicinage Clause guarantees a criminal defendant "the right to a . . . jury of the . . . district where[] the crime shall have been committed." U.S. CONST, amend. VI. "At the time of its adoption, the Sixth Amendment, like the rest of the Bill of Rights, applied only to the federal government" and was not applicable to state prosecutions. Stevenson v. Lewis, 384 F.3d 1069, 1071 (9th Cir. 2004). Although the Supreme Court applied most of the Bill of Rights's protections to the states through the Fourteenth Amendment, it has not held that the vicinage guarantee applies to the states. See Id. Therefore, it cannot be said that Supreme Court precedent "clearly require [s]" that New York courts comply with the Vicinage Clause. See Kernan, 138 S.Ct. at 6 (emphasis in original). Indeed, the circuit courts addressing this issue have determined "that the Fourteenth Amendment did not extend federal vicinage protection to the states." Stevenson, 384 F.3d at 1071 (emphasis added); see also Zicarelli v. Dietz, 633 F.2d 312, 320-26 (3d Cir. 1980); Cook v. Morrill, 783 F.2d 593, 594-96 (5th Cir. 1986); Caudill v. Scott, 857 F.2d 344, 345-46 (6th Cir. 1988). Likewise, the New York Court of Appeals found that a criminal defendant does not have a Sixth Amendment right to be tried by a jury of the county where the alleged crime was committed. See People v. Goldswer, 39 N.Y.2d 656, 662-63 (1976). Accordingly, Petitioner is not entitled to habeas relief for his venue claim. See 28 U.S.C. § 2254(d)(1).
Through a series of decisions, the Supreme Court selectively incorporated individual rights guaranteed by the Bill of Rights to apply against state actors via the Fourteenth Amendment's Due Process Clause. See Duncan v. Louisiana, 391 U.S. 145, 147-48 (1968). The Duncan court held that only those "fundamental right[s]," which "lie at the base of all our civil and political institutions" and are "essential to ordered liberty," are applicable to the states. Id. at 148, 149, 155. Such rights include, inter alia, a criminal defendant's rights: to counsel, to a speedy and public trial, to be free from unreasonable searches and seizures, to be free from compelled self-incrimination, to confront witnesses against him, to compulsory process for obtaining favorable witnesses, and to a trial by jury. Id. at 148 (collecting cases).
Even assuming, arguendo, that Petitioner's claim implicated clearly established federal law, the Appellate Division did not unreasonably apply relevant federal precedent. The guiding Supreme Court decision on venue is United States v. Cabrales, 524 U.S. 1 (1998). In general, venue is proper in federal prosecutions in the "district in which the offense was committed[.]" Id. at 6 (quoting Fed. R. Crim. P. 18). The location of the offense, known as the "locus delecti," is "determined from the nature of the crime alleged and the location of the act or acts constituting it." Id. at 6-7 (quoting United States v. Anderson, 328 U.S. 699, 703 (1946)); United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999) (In ascertaining the locus delecti, "a court must initially identify the conduct constituting the offense (the nature of the crime) and then discern the location of the commission of the criminal acts.")
Here, Petitioner was convicted of Robbery in the Second Degree as set out by New York Penal Law § 160.10. Robbery is defined in New York as a "forcible stealing." N.Y.Penal L. § 160.00. A person steals property when, "with [the] intent to deprive another of property or to appropriate the same to himself[, ] ... [an individual] wrongfully takes, obtains, or withholds such property from [the] owner thereof." Id. § 155.05(1). Furthermore, the accused must have "use[d] or threatened] the immediate use of physical force upon another person for the purpose of," inter alia, "taking" or retaining such property. Id. § 160.00. Last, a conviction for robbery in the second degree requires a showing that the stealing was "aided by another person actually present." Id. § 160.10(1).
In adjudicating Petitioner's 330.30 Motion, the trial court opined that the record supported the jury's finding that second degree robbery occurred in Westchester County. (Docket No. 10-4 at 5). The Appellate Division denied Petitioner's venue claim, summarily holding that Petitioner's "remaining contentions, raised in his pro se supplemental brief were "without merit." Morin, 146 A.D.3d at 902. The Appellate Division's holding was "on the merits" for purposes of ADEPA. See Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir. 2004). "[A] state court decision need not mention a particular [claim] or explain the reasons for rejecting" that claim for the claim to have been "adjudicated on the merits." Id. ("a claim was adjudicated on the merits where it was one of the remaining contentions that the Appellate Division stated [was] without merit") (internal quotations omitted); see also Wade v. Herbert, 391 F.3d 135, 142 (2d Cir. 2004). Furthermore, "[w]here, as here, 'a state court fails to articulate the rationale underlying its rejection of a petitioner's claim ... the federal court will focus its review on whether the state court's ultimate decision was an unreasonable application" of federal law. Wilson v. Mazzuca, 570 F.3d 490, 499 (2d Cir. 2009) (quoting Eze v. Senkowski, 321 F.3d 110, 125 (2d Cir. 2003) (internal quotations omitted)). The Appellate Division did not unreasonably apply Supreme Court law.
The record supports a finding that Petitioner committed second degree robbery in Westchester County. First, the record indicates that Petitioner deprived Medina of property while in North Salem. See N.Y. Penal L. § 155.05(1). French testified that Medina entered the woods fully clothed and was wearing both sneakers and a t-shirt. (Trial Tr. at 959-60, 1035). Security footage taken outside of Home Liquors on June 2, 2011 corroborated that Medina was wearing a red t-shirt at the time of his abduction. (Id. at 733). However, when Medina was found the following week, he was wearing only shorts, a belt, underwear and socks. (Id. at 546). Furthermore, Petitioner was arrested on June 9, 2011 wearing a red t-shirt, as well as Medina's jewelry. (Id. at 809). The People also introduced evidence tending to show that the cohort removed rings from Medina's right hand while in the woods in North Salem. (See Id. at 1274-76). Autopsy photos depicted a "glow[ing]" mark on Medina's right middle finger. (Id. at 1278). Dr. Bristol testified that this could indicate that Medina was wearing a ring on that finger. (Id.). However, no rings were recovered from Medina's person when his body was found. (Id. at 1279). Furthermore, Medina's right middle finger was forcibly dislocated from his hand. (Id. at 1317). Thus, at minimum, the jury heard evidence that Petitioner, "aided by" Blanchard, Smith and French, deprived Medina of his shirt and/or rings while in North Salem. See N.Y. Penal L. §§ 155.05(1), 160.10.
Second, the record supports a finding that Petitioner possessed the specific intent to deprive Petitioner of his property while in Westchester County. The definition of a "larcenous intent" connotes a purpose "to exert permanent. . . control over the property taken[.]" People v. Jennings, 69 N.Y.2d 103, 118 (1986) (quoting Hechtman, Practice Commentaries, N.Y. Penal Law § 155.00 (McKinney)). Thus, the intent element is "satisfied by a showing that the thief exercised dominion and control over the property for a period of time, ... in a manner wholly inconsistent with the owner's continued rights." Id. Here, the fact that Petitioner drove away with Medina's jewelry, clothing, shoes and cell-phone, after leaving him to die in the woods, demonstrates that Petitioner intended to permanently deprive Medina of these items. Also relevant is the fact that Petitioner was arrested wearing Medina's t-shirt and jewelry, which tends to show that Petitioner was exercising control over Medina's property in a way that was incongruous with Medina's rights to the property. See Jennings, 69 N.Y.2d at 118.
Third, the record supports a finding that Medina's property was forcibly taken from him in the woods of Gaymark Preserve. See N.Y. Penal L. § 160.00. French testified that Petitioner, Blanchard and Smith "push[ed] Medina along" into the woods. (Trial Tr. at 947). Further, Dr. Ashar testified that three of Medina's fingers were dislocated with "force." (Id. at 1317). Crucially, Medina's death was determined to be a homicide most likely caused by a subdural hematoma brought on by blunt force trauma to the head. (Id. at 1283, 1289, 1331-32).
Due to the severely decomposed condition of Medina's body, it was not possible for the medical examiner to determine the exact cause of Medina's death. (Id. at 1332).
It is also notable that Petitioner told Tasha that he beat and robbed someone in New York. (Id. at 855, 871-74, 885). In sum, the record supports the jury's finding that Petitioner committed second degree robbery in Westchester County. As such, the Appellate Division's ruling concerning venue was not an unreasonable application of Supreme Court precedent. Accordingly, I respectfully recommend that Petitioner's venue claim be denied.
IV. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend that the Petition be denied. Further, because reasonable jurists would not find it debatable that Petitioner has failed to demonstrate by a substantial showing that he was denied a constitutional right, I recommend that no certificate of appealability be issued. See 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 483-84(2000).
The Clerk of Court is requested to mail a copy of this Report and Recommendation to the pro se Petitioner.
V. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 8(b) of the Rules Governing Section 2254 Cases in the United States District Courts, the parties shall have fourteen (14) days from the receipt of this Report and Recommendation to serve and file written objections. If copies of this Report and Recommendation are served upon the parties by mail, the parties shall have seventeen (17) days from receipt of the same to file and serve written objections. See Fed. R. Civ. P. 6(d). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Philip M. Halpern at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York 10601, and to the chambers of the undersigned at the same address.
Requests for extensions of time to file objections must be made to the Honorable Philip M. Halpern and not to the undersigned. Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Caidor v. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008).