Pierce v. United States

CourtDistrict Court, S.D. New York
DecidedMay 28, 2020
Docket1:16-cv-07669
StatusUnknown

This text of Pierce v. United States (Pierce v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pierce v. United States, (S.D.N.Y. 2020).

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

LATANYA PIERCE, Petitioner, : 16cv7669 -against- : : MEMORANDUM & ORDER UNITED STATES OF AMERICA, : Respondent.

WILLIAM H. PAULEY III, Senior United States District Judge: Pro se Petitioner Latanya Pierce moves to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. That sentence was imposed by the Honorable Shira A. Scheindlin on May 29, 2014. (Criminal ECF No. 226.)! Thereafter, the judgment of conviction was amended several times. (Criminal ECF Nos. 257, 270, 297.) Judge Scheindlin retired on April 29, 2016, and the underlying criminal case was randomly reassigned to this Court. After Pierce filed this habeas proceeding, the parties consented to proceed before the Honorable James L. Cott, United States Magistrate Judge. On August 31, 2018, Magistrate Judge Cott issued a Report and Recommendation (the “Report”) recommending that this Court deny Pierce’s habeas petition. Pierce v. United States, 2018 WL 4179055, at *1 (S.D.N.Y. Aug. 31, 2018). On September 14, 2018, Pierce filed objections to two sections of the Report. (ECF No. 19.) Having reviewed Pierce’s objections and the underlying record, this Court adopts the well-reasoned Report, subject to one modification. Accordingly, Pierce’s habeas petition is denied.

1 Citations to “Criminal ECF No.” refer to Pierce’s underlying criminal proceeding, case number 12-cr-340. Citations to “ECF No.” refer to this proceeding.

DISCUSSION I. Legal Standard A district court “may accept, reyect, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). This Court reviews de novo those parts of the Report to which objections are made and reviews the remainder for clear error on the face of the record. 28 U.S.C. § 636(b)(1); Mulosmanaj v. Colvin, 2016 WL 4775613, at *2 (S.D.N.Y. Sept. 14, 2016). To trigger de novo review, objections “must be specific and clearly aimed at particular findings in the magistrate judge’s proposal.” George v. Prof’| Disposables Int’l, Inc., 221 F. Supp. 3d 428, 433 (S.D.N.Y. 2016) (citation and quotation mark omitted). Conclusory or general objections are entitled only to clear error review. Pineda v. Masonry Constr., Inc., 831 F. Supp. 2d 666, 671 (S.D.N.Y. 2011). Moreover, it is “improper . . . to relitigate the entire content of the hearing before the Magistrate Judge by submitting papers to a district court which are nothing more than a rehashing of the same arguments and positions taken in the original papers submitted to the Magistrate Judge.” Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008) (citation omitted). In such cases, the objecting party is only entitled to clear error review. See, e.g., Taebel v. Sonberg, 2018 WL 2694429, at *1 (S.D.N.Y. June 5, 2018) (reviewing for clear error where objector “reiterate[d] the arguments he made to the magistrate judge”); Vaccariello v. XM Satellite Radio, Inc., 295 F.R.D. 62, 67 (S.D.N.Y. 2013) (“In the event a party’s objections... reiterate original arguments, the district court also reviews the Report and Recommendation for clear error.”); Jones v. Heath, 2012 WL 2673649, at *2 (S.D.N.Y. July 5, 2012) (conducting clear error review where objector “simply reiterate[d] his original arguments, incorporating his memorandum only by a passing reference” (citation and quotation marks omitted)).

Since Pierce is pro se, her petition is held to “less stringent standards than [those] drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam); accord Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001). This Court liberally construes her papers “to raise the strongest arguments that they suggest.” Green, 260 F.3d at 83 (quotation marks omitted). Il. Pierce’s Objections A. Restitution In her petition, Pierce contends that her trial counsel was ineffective for failing to challenge the sentencing court’s imposition of restitution. The Report concludes that Pierce is procedurally barred from advancing that argument because of the “mandate rule,” which precludes the use of collateral attack to relitigate claims previously resolved on direct appeal. Pierce, 2018 WL 4179055, at *7—8. In reaching that conclusion, the Report observes that Pierce previously challenged the sentencing court’s imposition of restitution during a direct appeal of her criminal conviction. See Pierce, 2018 WL 4179055, at *7-8. The Second Circuit summarily rejected Pierce’s argument. United States v. Pierce, 649 F. App’x 117, 118 (2d Cir. 2016). Pierce now seeks to revive her restitution argument in this Court—this time stylized as an “objection” to the Report. However, the substance of Pierce’s objection 1s lifted word-for-word from her sur-reply to the magistrate judge. (Compare ECF No. 17, at 6-7, with ECF No. 19, at 2-3.) And as explained in the Report, the “mandate rule bars re-litigation of issues already decided on direct appeal,” including “matters [both] expressly [and] . . . impliedly resolved by the appellate court’s mandate.” Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010). Accordingly, to the extent Pierce previously challenged her restitution obligation on

direct appeal, the Report correctly concludes she is barred from advancing that same argument in her petition.’ But that conclusion does not end this Court’s inquiry. Pierce’s petition specifically alleges that the sentencing court improperly imposed restitution for losses suffered by four victims: (1) Washington Mutual Bank, (2) Sand Canyon Corporation, (3) First Magnus Financial, and (4) an individual named Ina McCarther. (ECF No. 1, at 15-16.) Yet the Report describes the petition as challenging only the restitution imposed for the three institutional victims. See Pierce, 2018 WL 4179055, at *8 (“Pierce maintains . . . that [counsel] was ineffective because he failed to object to Judge Scheindlin’s calculation of the amount of her restitution obligation, in particular with regard to the losses sustained by Washington Mutual Bank, Sand Canyon Corporation, and First Magnus Financial.”). Absent from the Report is an analysis of Pierce’s argument concerning the restitution imposed for losses suffered by McCarther. Indeed, Pierce contends that McCarther is not entitled to any restitution because of a settlement McCarther received during bankruptcy proceedings related to Pierce’s real estate company, Creekhill Realty, LLC. (See ECF No. 1, at 16.) And unlike the petition’s arguments concerning the three institutional victims—which overlap considerably with the restitution arguments that Pierce advanced on direct appeal and are therefore barred by the mandate rule—it is less than clear that Pierce raised her restitution argument concerning McCarther on direct appeal.> Thus, out of an abundance of caution, this Court assumes that Pierce’s argument concerning McCarther is neither resolved by the Report nor barred by the mandate rule.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Haines v. Kerner
404 U.S. 519 (Supreme Court, 1972)
Yick Man Mui v. United States
614 F.3d 50 (Second Circuit, 2010)
John F. Kaminski v. United States
339 F.3d 84 (Second Circuit, 2003)
Ortiz v. Barkley
558 F. Supp. 2d 444 (S.D. New York, 2008)
McEwan v. United States
279 F. Supp. 2d 462 (S.D. New York, 2003)
United States v. Pierce
649 F. App'x 117 (Second Circuit, 2016)
George v. Professional Disposables International, Inc.
221 F. Supp. 3d 428 (S.D. New York, 2016)
United States v. Rutigliano
887 F.3d 98 (Second Circuit, 2018)
Pineda v. Masonry Construction, Inc.
831 F. Supp. 2d 666 (S.D. New York, 2011)
Vaccariello v. XM Satellite Radio, Inc.
295 F.R.D. 62 (S.D. New York, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
Pierce v. United States, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pierce-v-united-states-nysd-2020.