Thompson v. Yelich

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS: Having reviewed Magistrate Judge Bloom's well-reasoned and thorough recommendation, the record before the court, and the relevant case law, the court finds that there is no clear error in the Report and Recommendation and hereby affirms and adopts the Report and Recommendation in its entirety as the opinion of the court. Accordingly, petitioner's petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, is denied. Because petit ioner has not made a substantial showing of the denial of any constitutional right, the court will not issue a certificate of appealability. 28 U.S.C. § 2253; Lozada v. United States, 107 F.3d 1011, 1017 (2d Cir. 1997) (abrogated on othe r grounds); Richardson v. Greene, 497 F.3d 212, 217 (2d. Cir. 2007) (discussing the standard for issuing a certificate of appealability). Further, the court certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this judgment d enying the petition would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438 (1962). The Clerk of the Court is respectfully requested to dismiss the petition, enter judgment in favor of respondent, and close this case. Respondent is directed to serve a copy of this Memorandum and Order on petitioner and to file proof of service via ECF by November 27, 2012. Ordered by Judge Kiyo A. Matsumoto on 11/26/2012. (Beauchamp, Peter)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
RAHEEM THOMPSON,
MEMORANDUM AND ORDER
ADOPTING REPORT AND
RECOMMENDATION

Petitioner,
-againstBRUCE YELICH, Superintendent,
Bare Hill Correctional Facility,

09-CV-5039(KAM)(LB)

Respondent.
-----------------------------------X
MATSUMOTO, United States District Judge:
On November 6, 2009, Raheem Thompson (“petitioner”)
filed this pro se petition for a writ of habeas corpus, pursuant
to 28 U.S.C. § 2254, challenging his conviction for assault in
the first and second degrees following a jury trial in New York
Supreme Court, Queens County.
Habeas Corpus.)

(See ECF No. 1, Pet. for Writ of

On April 7, 2010, this petition was referred to

Magistrate Judge Bloom for a Report and Recommendation pursuant
to 28 U.S.C. § 636(b).

(See ECF No. 10, Order.)

On May 31, 2011, Magistrate Judge Bloom issued a
Report and Recommendation recommending that petitioner’s
petition be denied in its entirety.
Recommendation (“R&R”).)

(ECF No. 11, Report &

On that same date, Magistrate Judge

Bloom mailed a copy of her Report and Recommendation to
petitioner.

(See id., docket notation.)

As explicitly noted at

the end of the Report and Recommendation, any objections to the

report were to be filed within fourteen days of service of the
Report and Recommendation.

(R&R at 16.)

On June 9, 2011, the

court received a letter-motion from petitioner requesting an
extension of time in which to file his objection to the Report
and Recommendation.

(ECF No. 12, Ltr. Mot.)

On June 14, 2011,

the court granted petitioner’s request, allowing him until July
14, 2011, to file his objection.

(Order, dated June 14, 2011.)

On July 5, 2011, the court received petitioner’s timely
objection.

(ECF No. 14, Objection.)
STANDARD OF REVIEW
To the extent that a party makes specific and timely

written objections to a magistrate judge’s findings and
recommendations, the district court must review de novo “those
portions of the report . . . to which objection is made.”

28

U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3); United
States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).
“However, when a party makes only conclusory or general
objections, or simply reiterates his original arguments, the
Court reviews the Report and Recommendation only for clear
error.”

Walker v. Vaughan, 216 F. Supp. 2d 290, 292 (S.D.N.Y.

2002) (citation and internal quotation marks omitted); see also
Johnson v. Cnty. of Wash., No. 10-CV-1497, 2011 U.S. Dist. LEXIS
59764, at *2 (N.D.N.Y. May 27, 2011) (“In those cases where no
party has filed an objection, or only a vague or general
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objection has been filed, this court reviews the findings and
recommendations of a magistrate judge for clear error.”).
Similarly, when a party makes no objection to a portion of a
Report and Recommendation, the court reviews that portion only
for clear error.

See Marcelin v. Cortes-Vazquez, No. 09-CV-

4303, 2011 U.S. Dist. LEXIS 8996, at *3 (E.D.N.Y. Jan. 28, 2011)
(“The district court is not required to review de novo, and may
instead review for clear error, those portions of a report and
recommendation to which no specific objections are addressed.”
(citing Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d
Cir. 2002))); see also Batista v. Walker, No. 94-CV-2826, 1995
U.S. Dist. LEXIS 10687, at *2 (S.D.N.Y. July 25, 1995).

“An

objection to a report and recommendation in its entirety does
not constitute a specific written objection within the meaning
of [Federal Rule of Civil Procedure] 72(b).”

Wolff v. Town of

Mount Pleasant, No. 06-CV-3864, 2011 U.S. Dist. LEXIS 5959, at
*5 (S.D.N.Y. Jan. 20, 2011); see Healing Power, Inc. v. Ace
Cont’l Exps., Ltd., No. 07-CV-4175, 2008 U.S. Dist. LEXIS 83021,
at *2-3 (E.D.N.Y. Oct. 17, 2008) (finding general objection to
Report and Recommendation not specific enough to constitute an
objection under Federal Rule of Civil Procedure 72(b)).
The objections of parties appearing pro se are
“generally accorded leniency” and should be construed “to raise
the strongest arguments that they suggest.”
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Milano v. Astrue,

No. 05-CV-6527, 2008 U.S. Dist. LEXIS 74488, at *3-4 (S.D.N.Y.
Sept. 26, 2008) (citations and internal quotation marks
omitted); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474
(2d Cir. 2006).

“Nonetheless, even a pro se party’s objections

to a Report and Recommendation must be specific and clearly
aimed at particular findings in the magistrate’s proposal, such
that no party be allowed a second bite at the apple by simply
relitigating a prior argument.”

Pinkney v. Progressive Home

Health Servs., No. 06-CV-5023, 2008 U.S. Dist. LEXIS 55034, at
*2-3 (S.D.N.Y. July 21, 2008) (citation and internal quotations
marks omitted); accord Evans v. Ericole, No. 06-CV-3684, 2008
U.S. Dist. LEXIS 91556, at *5 (S.D.N.Y. Nov. 10, 2008)
(reviewing Report and Recommendation for clear error where pro
se plaintiff made only general objection); Hazen v. Perlman, No.
05-CV-1262, 2008 U.S. Dist. LEXIS 73708, at *2 (N.D.N.Y. Sept.
9, 2008) (reviewing report and recommendation for clear error
where pro se plaintiff did not specifically object to any
particular portion of report).

Upon review, “[t]he district

judge may 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).
DISCUSSION

Petitioner’s July 5, 2011, submission to the court
does not in fact amount to an objection of any kind, much less a
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specific objection to a particular portion of Magistrate Judge
Bloom’s Report and Recommendation.

Indeed, petitioner’s 56-page

submission makes only a single passing reference to the Report
and Recommendation on its first page.

(Objection at 1.)

Nowhere in petitioner’s voluminous and disjointed submission can
the court locate a specific objection to any portion of the
recommendation.

(See generally id.)

Rather, petitioner’s

submission predominantly consists of excerpts from the
transcript of petitioner’s jury trial interspersed with vague
handwritten summaries of various New York State appellate
decisions.

(See id. at 5, 8, 28-29, 34-35, 39, 43, 47-48.)

Remaining mindful of its obligation to construe the submissions
of pro se litigants liberally, see Triestman, 470 F.3d at 474,
the court is nonetheless unable to construe petitioner’s
personal case summaries as a specific objection to any portion
of the recommendation.

Therefore, in light of petitioner’s

vague and general objections, the court will review the entire
Report and Recommendation for clear error.
Having reviewed Magistrate Judge Bloom’s well-reasoned
and thorough recommendation, the record before the court, and
the relevant case law, the court finds that there is no clear
error in the Report and Recommendation and hereby affirms and
adopts the Report and Recommendation in its entirety as the
opinion of the court.

Accordingly, petitioner’s petition for a
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writ of habeas corpus, pursuant to 28 U.S.C. § 2254, is denied.
Because petitioner has not made a substantial showing
of the denial of any constitutional right, the court will not
issue a certificate of appealability.

28 U.S.C. § 2253; Lozada

v. United States, 107 F.3d 1011, 1017 (2d Cir. 1997) (abrogated
on other grounds); Richardson v. Greene, 497 F.3d 212, 217 (2d.
Cir. 2007) (discussing the standard for issuing a certificate of
appealability).

Further, the court certifies, pursuant to 28

U.S.C. § 1915(a), that any appeal from this judgment denying the
petition would not be taken in good faith.
United States, 369 U.S. 438 (1962).

See Coppedge v.

The Clerk of the Court is

respectfully requested to dismiss the petition, enter judgment
in favor of respondent, and close this case.
Respondent is directed to serve a copy of this
Memorandum and Order on petitioner and to file proof of service
via ECF by November 27, 2012.

SO ORDERED.
Dated:

November 26, 2012
Brooklyn, New York

/s/
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York

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