Mosley v. Superintendent of Collins C.F.

Filing 25

DECISION and ORDER: ORDERED 19 Report and Recommendation is accepted and adopted in its entirety. ORDERED that Petitioner's Petition (Dkt. No. 1) is DENIED and DISMISSED in its entirety. ORDERED that the Clerk of the Court shall amend the docket sheet in accordance with footnote 1 of this Decision and Order, and then CLOSE this action. ORDERED that a certificate of appealability shall not issue with respect to any of the claims set forth in the Petition, because 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 1/22/15. {order served via regular mail on petitioner}(nas, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
MANUEL MOSLEY,
Petitioner,
9:11-CV-1416
(GTS/RFT)

v.
SUPERINTENDENT OF COLLINS CORR.
FACILITY,
Respondent.
__________________________________________
APPEARANCES:

OF COUNSEL:

MANUEL MOSLEY, 07-A-0302
Petitioner, Pro Se
Marcy Correctional Facility
P.O. Box 3600
Marcy, New York 13403
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Respondent
120 Broadway
New York, New York 10271

LEILANA J. RODRIGUEZ, ESQ.
Assistant Attorney General

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this habeas corpus proceeding filed pro se by Manuel
Mosley (“Petitioner”) against a correctional facility superintendent (“Superintendent”) pursuant
to 28 U.S.C. § 2254, are (1) United States Magistrate Judge Randolph F. Treece’s ReportRecommendation recommending that Petitioner’s Petition be denied and dismissed in its entirety
and that a certificate of appealability not issue, and (2) Petitioner’s Objection to the Report-

Recommendation. (Dkt. Nos. 19, 23.)1 For the reasons set forth below, Magistrate Judge
Treece’s Report-Recommendation is accepted and adopted in its entirety.
I.

RELEVANT BACKGROUND
Because this Decision and Order is intended primarily for the review of the parties, the

Court will not repeat the factual background of Petitioner’s 2007 state-court conviction for the
criminal sale of a controlled substance in the third degree and attempted assault in the second
degree, but will simply refer the parties to the relevant portion of Magistrate Judge Treece’s
Report-Recommendation, which accurately recites that factual background. (Dkt. No. 19, at Part
I.)
Generally, in his Petition, Petitioner asserts four claims: (1) a claim that the trial court
lacked jurisdiction and authority to resentence him as a second felony offender; (2) a claim that
the Appellate Division’s decision affirming his resentencing contradicted an earlier decision it
had issued in his case; (3) a claim that he was subjected to double jeopardy when he was
resentenced as a second felony offender; and (4) a claim that his sentence was harsh and
excessive. (See generally Dkt. No. 1.)
Generally, in his Report-Recommendation, Magistrate Judge Treece recommends
dismissal of the Petition for four reasons: (1) with respect to Petitioner’s claim that the trial court
lacked jurisdiction and authority to resentence him as a second felony offender, the claim lacks

1

Also pending is a “motion” by Respondent requesting an Order adopting the
Report-Recommendation. (Dkt. No. 20.) Because the Court does not construe this request as a
“motion” (but merely as a request for relief that would automatically be provided by operation of
law should the Report-Recommendation survive the appropriate level of review), the Court
directs the Clerk to amend the docket sheet to designate the submission as merely a letter-brief in
support of the Report-Recommendation. See, e.g., Alvarez-Campos v. Long, 06-CV-2133, 2008
WL 2225767, at *1 (D. Ariz. May 29, 2008) (characterizing such a “motion” as “moot”).
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merit because it regards purely an issue of state law and does not rise to the level of a federal
constitutional violation, given that he received (a) adequate notice that he was subject to
resentencing as a second felony offender, and (b) an opportunity to be heard on the
constitutionality or validity of his first felony conviction); (2) with respect to Petitioner’s claim
that the Appellate Division’s decision affirming his resentencing contradicted an earlier decision
it had issued in his case, the claim lacks merit because the two decisions were not contradictory
in that (a) the first decision found merely that the trial court had improperly sentenced Petitioner
as a second felony offender without first giving him an opportunity to contest the
constitutionality or validity of his prior felony conviction, while (b) the second decision found
that on remand Petitioner had failed to challenge the constitutionality or validity of his prior
felony conviction); (3) with respect to Petitioner’s claim that he was subjected to double
jeopardy when he was resentenced as a second felony offender, the claim lacks merit because
Petitioner had no legitimate expectation that his initial sentence (which never adjudicated him as
a predicate felon and was thus illegal) would be final; and (4) with respect to Petitioner’s claim
that his sentence was harsh and excessive, the claim lacks merit because the sentence was within
the permissible range provided for by state law. (Dkt. No. 19.)
Generally, in his Objection, Petitioner asserts three arguments: (1) that his federal right to
due process was violated because, contrary to the terms of the Appellate Division’s remand, the
trial court vacated his plea agreement then resentenced him as a second felony offender over his
objection; (2) that a double jeopardy violation occurred because the trial court resentenced him
as a second felony offender after he had been sentenced as a first-time felony offender and
judgment had been entered; and (3) that his sentence of eleven years on resentencing was harsh
and excessive because the maximum sentence under state law is nine years for first-time felony
offenders. (Dkt. No. 23.)
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II.

APPLICABLE LEGAL STANDARDS
A.

Standard Governing Review of a Report-Recommendation

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.
72.1(c).2 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.3 Similarly, a district court will ordinarily refuse to consider argument that could

2

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.”).
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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.”).
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have been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State
Univ. of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is
established law that a district judge will not consider new arguments raised in objections to a
magistrate judge's report and recommendation that could have been raised before the magistrate
but were not.”) (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F.
Supp.2d 311, 312-13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge
will not consider new arguments raised in objections to a magistrate judge's report and
recommendation that could have been raised before the magistrate but were not.”) (internal
quotation marks omitted).
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; 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). 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 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

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 ex rel. M.A.H. 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.).
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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 Habeas Petition Pursuant to 28 U.S.C. § 2254

Again, because this Decision and Order is intended primarily for the review of the
parties, the Court will not repeat the legal standard governing Petitioner’s habeas petition
pursuant to 28 U.S.C. § 2254, but will simply refer the parties to the relevant portion of
Magistrate Judge Treece’s Report-Recommendation, which accurately recites that legal standard.
(Dkt. No. 18, at Part II.A.)
III.

ANALYSIS
After carefully reviewing all of the papers in this action, the Court agrees with each of

the recommendations made by Magistrate Judge Treece. Magistrate Judge Treece employed the
correct legal standards, accurately recited the facts, and reasonably applied the law to those facts.
(Dkt. No. 19, at Parts I-III.) As a result, the Court accepts and adopts Magistrate Judge Treece’s
Report-Recommendation in its entirety for the reasons stated therein. (Id.)
The Court would add only one point. Even when construed with the utmost of liberality,
Petitioner’s Objection fails to contain a specific challenge to the Report-Recommendation that

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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differs from the arguments he asserted in his Petition and Traverse. (Compare Dkt. No. 23
[Objection] with Dkt. No. 19 [Report-Recommendation] and Dkt. No. 1 [Petition] and Dkt. No.
11 [Traverse].) As a result, he is entitled to only a clear-error review of Magistrate Judge
Treece’s Report-Recommendation (which level of review the Report-Recommendation
survives). The Court notes that, even if the Report-Recommendation were subjected to a de
novo review, the Report-Recommendation would survive that review.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Treece’s Report-Recommendation (Dkt. No. 19) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Petitioner’s Petition (Dkt. No. 1) is DENIED and DISMISSED in its
entirety; and it is further
ORDERED that the Clerk of the Court shall amend the docket sheet in accordance with
footnote 1 of this Decision and Order, and then CLOSE this action; and it is further
ORDERED that a certificate of appealability shall not issue with respect to any of the
claims set forth in the Petition, because Petitioner has not made a “substantial showing of the
denial of a constitutional right” pursuant to 28 U.S.C. § 2253(c)(2).
Dated: January 22, 2015
Syracuse, New York

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