Young v. Stallone
Filing
9
MEMORANDUM DECISION AND ORDER: ORDERED that Magistrate Judge Peebles Report- Recommendation (Dkt. No. 8 ) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that the Petition (Dkt. No. 1 ) in this matter is DENIED and DISMI SSED in its entirety; and it is further ORDERED that a certificate of appealability not issue with respect to any of the claims set forth in the Petition as Petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2). Signed by Judge Glenn T. Suddaby on 6/12/2012. (ptm) (Copy served on petitioner by regular mail)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
ERIC YOUNG,
Petitioner,
9:10-CV-0697
(GTS/DEP)
v.
DAVID STALLONE,
Respondent.
__________________________________________
APPEARANCES:
OF COUNSEL:
ERIC YOUNG, 07-A-0197
Petitioner, Pro Se
Groveland Correctional Facility
Sonyea, New York 14556
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Respondent
120 Broadway
New York, New York 10271
ALLISON J. GILL, ESQ.
Assistant Attorney General
GLENN T. SUDDABY, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court, in this habeas corpus action filed by Eric Young
(“Petitioner”) against David Stallone (“Respondent”) pursuant to 28 U.S.C. § 2254, is a ReportRecommendation by United States Magistrate Judge David E. Peebles, recommending that the
Petition be denied and dismissed, and that a certificate of appealability not issue. (Dkt. No. 8.)
Petitioner has not submitted an objection to the Report-Recommendation, and the time in which
to do so has expired. For the reasons set forth below, Magistrate Judge Peebles’ ReportRecommendation is accepted and adopted in its entirety, and the Petition is denied and dismissed
in its entirety.
I.
RELEVANT BACKGROUND
For the sake of brevity, the Court will not repeat the factual background of Petitioner’s
conviction for attempted burglary in the second degree, but will simply refer the parties to the
relevant portions of Magistrate Judge Peebles’ Report-Recommendation, which accurately recite
that factual background. (Dkt. No. 8 at Part I.)
A.
Petitioner’s Claims
Generally, in his Petition of June 16, 2010, Petitioner asserts the following two claims:
(1) a claim that his plea was involuntary as he did not understand the nature of the charge nor the
consequences of the plea; and (2) a claim that, by advising Petitioner to plead guilty to the
charge, trial counsel provided ineffective assistance. (Dkt. No. 1 at 12.)
B.
Magistrate Judge Peebles’ Report-Recommendation
On December 21, 2011, Magistrate Judge Peebles issued his Report-Recommendation.
(Dkt. No. 8.) Generally, in his Report-Recommendation, Magistrate Judge Peebles recommends
dismissal of both claims for the following two reasons: (1) Petitioner’s first claim lacks merit;
and (2) Petitioner’s second claim is procedurally barred, because Petitioner failed to raise the
claim in state court. (Id. at Part III.)
II.
APPLICABLE LEGAL STANDARDS
A.
Standard of Review
When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection
must, with particularity, “identify [1] the portions of the proposed findings, recommendations,
or report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R.
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72.1(c).1 When performing such a de novo review, “[t]he judge may . . . receive further
evidence. . . .” 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider
evidentiary material that could have been, but was not, presented to the magistrate judge in the
first instance.2
When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition.3 Similarly, when an objection merely reiterates the same arguments made
by the objecting party in its original papers submitted to the magistrate judge, the Court subjects
1
See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Although Mario filed objections to the magistrate's report and recommendation, the statement
with respect to his Title VII claim was not specific enough to preserve this claim for review. The
only reference made to the Title VII claim was one sentence on the last page of his objections,
where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set
forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which
he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
VII claim.”).
2
See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In
objecting to a magistrate's report before the district court, a party has no right to present further
testimony when it offers no justification for not offering the testimony at the hearing before the
magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (district court did not abuse its
discretion in denying plaintiff's request to present additional testimony where plaintiff “offered
no justification for not offering the testimony at the hearing before the magistrate”); cf. U. S. v.
Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the
district court to conduct a second hearing whenever either party objected to the magistrate's
credibility findings would largely frustrate the plain objective of Congress to alleviate the
increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b), Advisory
Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a secondary
evidentiary hearing is required.”).
3
See also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y.
Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.
1999).
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that portion of the report-recommendation challenged by those arguments to only a clear error
review.4 Finally, when no objection is made to a portion of a report-recommendation, the Court
subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Id.5
After conducting the appropriate review, the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1)(C).
B.
Standard Governing Review of Petitioner’s Habeas Petition
Magistrate Judge Peebles correctly recited the legal standard governing review of
Petitioner’s habeas petition. (Dkt. No. 8 at Part III.C.1.) As a result, this standard is
incorporated by reference in this Decision and Order, which is intended primarily for review of
the parties.
4
See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers
or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or
Local Civil Rule 72.3(a)(3).”); Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F.
Supp. 380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely
constitute a "rehashing" of the same arguments and positions taken in original papers submitted
to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman v. Astrue, 07-CV-1077,
2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte v. N.Y.S. Div.
of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe, J.).
5
See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially
erroneous.”) (internal quotation marks and citations omitted).
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III.
ANALYSIS
After carefully reviewing all of the papers in this action, including Magistrate Judge
Peebles’ Report-Recommendation, the Court agrees with each of the recommendations made by
Magistrate Judge Peebles. Magistrate Judge Peebles employed the proper legal standards,
accurately recited the facts, and correctly applied the law to those facts. (Dkt. No. 8 at Parts IIV.) As a result, the Court accepts and adopts Magistrate Judge Peebles’ ReportRecommendation in its entirety for the reasons stated therein.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 8) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that the Petition (Dkt. No. 1 ) in this matter is DENIED and DISMISSED
in its entirety; and it is further
ORDERED that a certificate of appealability not issue with respect to any of the claims
set forth in the Petition as Petitioner has not made a “substantial showing of the denial of a
constitutional right” pursuant to 28 U.S.C. § 2253(c)(2).
Dated: June 12, 2012
Syracuse, New York
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