Gomez v. Duncan, (2nd Cir. 2009)

Text

---

07-0233-pr

Gomez v. Duncan

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO

SUM M ARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS

COURT'S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF

OR OTHER PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN

W HICH A CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL

APPENDIX OR BE ACCOM PANIED BY THE NOTATION: "(SUM M ARY ORDER)." A PARTY CITING

A SUM M ARY ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER WITH THE

PAPER IN W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY

COUNSEL UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE

W HICH IS PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE

AVAILABLE AT HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF

THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE

REFERENCE TO THAT DATABASE AND THE DOCKET NUM BER OF THE CASE IN WHICH THE

ORDER W AS ENTERED.

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the

Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,

on the 27th day of March, two thousand and nine.

PRESENT:

HON. GUIDO CALABRESI,

HON. DEBRA ANN LIVINGSTON,

Circuit Judges,

HON. PAUL A. CROTTY, District Judge.1 EDDIE GOMEZ, Petitioner-Appellant, -v.- No. 07-0233-pr GEORGE W. DUNCAN, Respondent-Appellee. 1 The Honorable Paul A. Crotty, United States District Court for the Southern District of New York, sitting by designation. For Petitioner-Appellant: RANDALL D. UNGER, Esq., Bayside, N.Y.

For Respondent-Appellee:MICHAEL S. MORGAN, Assistant District Attorney (Nicole Beder, Assistant District Attorney, on the brief), for Robert M.

Morgenthau, District Attorney, New York County, New York, N.Y.

UPON DUE CONSIDERATION of this appeal from a judgment entered in the United States District Court for the Southern District of New York (Preska, J.), it is hereby ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

Petitioner-Appellant Eddie Gomez appeals from the judgment of the United States District Court for the Southern District of New York (Preska, J.) denying his petition for a writ of habeas corpus from his February 16, 1994, conviction, following a guilty plea in Supreme Court, New York County, of first degree attempted murder and first degree reckless endangerment, and sentence to concurrent terms, the longest of which was fifteen years to life imprisonment. We assume the parties' familiarity with the facts, procedural history, and scope of the issues presented on appeal.

We review de novo a district court's denial of the writ of habeas corpus. Jimenez v.

Walker, 458 F.3d 130, 135 (2d Cir. 2006). Gomez raises a host of claims on appeal, all of which we find meritless for substantially the reasons stated in the exhaustive Report & Recommendation of the Magistrate Judge (Peck, M.J.). See Gomez v. Duncan, No. 02 Civ. 0846, 2004 U.S. Dist. LEXIS 898 (S.D.N.Y. Jan. 27, 2004). We note that although the Magistrate Judge conducted his analysis, for the most part, on the assumption that AEDPA deference applied, we would reach the same conclusion even if it did not.

We have reviewed all of Appellant's claims and find them meritless. Accordingly, the judgment of the District Court is AFFIRMED.

FOR THE COURT: Catherine O'Hagan Wolfe, Clerk of Court By:

---