Clairmont v. Smith
Filing
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DECISION and ORDER: ORDERED that Magistrate Judge Dancks' Report-Recommendation (Dkt. No. 22 ) is ACCEPTED and ADOPTED in its entirety. ORDERED that the Petition (Dkt. No. 1) in this matter is DENIED and DISMISSED, ORDERED that a c ertificate of appealability 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 Chief Judge Glenn T. Suddaby on 9/15/15. {order served via regular mail on petitioner}(nas)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_______________________________________
JAMES CLAIRMONT,
Petitioner,
9:12-CV-1022
(GTS/TWD)
v.
J.T. SMITH, Superintendent of
Shawangunk Correctional Facility,
Respondent.
_______________________________________
APPEARANCES:
OF COUNSEL:
JAMES R. CLAIRMONT, 09-A-2043
Petitioner, Pro Se
Shawangunk Correctional Facility
P.O. Box 700
Wallkill, New York 12589
HON. ERIC T. SCHNEIDERMAN
Attorney General for the State of New York
Counsel for Respondent
120 Broadway
New York, New York 10271
PAUL B. LYONS, ESQ.
Assistant Attorney General
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this habeas corpus proceeding filed by James Clairmont
(“Petitioner”) pursuant to 28 U.S.C. § 2254, is the Report-Recommendation of United States
Magistrate Judge Thérèse Wiley Dancks recommending that the Petition be denied and
dismissed pursuant to 28 U.S.C. § 2253(c)(2), and that a certificate of appealability not issue.
(Dkt. No. 22.) Petitioner has not filed an objection to the Report-Recommendation and the time
in which to do so has expired. (See generally Docket Sheet.) For the reasons set forth below,
Magistrate Judge Dancks’ Report-Recommendation is accepted and adopted in its entirety; the
Petition is denied and dismissed in its entirety; and a certificate of appealability shall not issue.
I.
RELEVANT BACKGROUND
For the sake of brevity, the Court will not repeat the factual background of Petitioner’s
2009 conviction for three counts of Criminal Sexual Act in the First Degree, three counts of
Sexual Abuse in the First Degree, and two counts of Assault in the Third Degree, but will simply
refer the parties to the relevant portions of Magistrate Judge Dancks Report-Recommendation,
which accurately recite that factual background. (Dkt. No. 22, at Part II.)
A.
Petitioner’s Claims
Generally, in his Petition, Petitioner asserts the following three grounds for relief: (1) a
claim that the prosecution adduced perjured material testimony from its main witness at trial in
order to obtain a conviction, in violation of Petitioner’s due process rights under the Fourteenth
Amendment; (2) a claim that the prosecution allowed its main witness’s perjured testimony to go
uncorrected at trial, despite its professional obligation to correct the perjured testimony for the
jury and court, in violation of Petitioner’s due process rights under the Fourteenth Amendment;
and (3) a claim that, because of the aforementioned violations, Petitioner’s conviction was based
on legally insufficient evidence with respect to the forcible compulsion element under N.Y.
Penal Laws §§ 130.50(1) and 130.65(1). (Dkt. No. 1, at “Ground One” through “Ground
Three.”)
B.
Magistrate Judge Dancks’ Report-Recommendation
Generally, in her Report-Recommendation, Magistrate Judge Dancks recommends that
the Court dismiss Petitioner’s claims for the following reasons: (1) Petitioner’s perjuredtestimony claim should be rejected because (a) he has failed to establish that inconsistencies in
the testimony of the prosecution’s main witness were wilfully perjurious, and (b) in any event,
the inconsistencies in the testimony were disclosed to the jurors during trial; (2) Petitioner’s
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weight-of-the-evidence claim should be rejected because it is unexhausted and is not cognizable
on habeas corpus review; and (3) Petitioner’s legal-insufficiency claim should be rejected
because testimony at trial by both the victim and medical personnel support the Appellate
Division’s finding that Petitioner acted with forcible compulsion. (Dkt. No. 22, at Parts V and
VI.)
II.
APPLICABLE LEGAL STANDARDS
A.
Standard Governing Review of a Report-Recommendation
When specific objections are made to a magistrate judge's report-recommendation, the
Court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1).1 When
only general objections are made to a magistrate judge's report-recommendation (or the objecting
party merely repeats the allegations of his pleading), the Court reviews for clear error or manifest
injustice. See 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).2
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On de novo review, a district court will ordinarily refuse to consider arguments,
case law and/or evidentiary material that could have been, but was not, presented to the
magistrate judge in the first instance. See, e.g., 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 discretion in denying plaintiff's request to present additional testimony where he
"offered no justification for not offering the testimony at the hearing before the magistrate").
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See also Vargas v. Keane, 93-CV-7852, 1994 WL 693885, at *1 (S.D.N.Y. Dec.
12, 1994) (Mukasey, J.) ("[Petitioner's] general objection [that a] Report . . . [did not] redress the
constitutional violations [experienced by petitioner] . . . is a general plea that the Report not be
adopted . . . [and] cannot be treated as an objection within the meaning of 28 U.S.C. § 636."),
aff'd, 86 F.3d 1273 (2d Cir.), cert. denied, 519 U.S. 895 (1996).
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Similarly, when a party makes no objection to a portion of a report-recommendation, the Court
reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826,
1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R.
Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. When performing
such a “clear error” or “manifest injustice” 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.” Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition.3 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 a Habeas Corpus Petition
Magistrate Judge Dancks has recited the legal standard governing review of Petitioner’s
habeas petition pursuant to 28 U.S.C. § 2254(d), and the parties have not objected to that
recitation. (Dkt. No. 22, at Part IV.) As a result, the recitation is incorporated by reference in
this Decision and Order, which is intended primarily for review of the parties.
III.
ANALYSIS
After carefully reviewing all of the papers in this action, including Magistrate Judge
Dancks’ Report-Recommendation, the Court cannot find any clear error in the ReportRecommendation: Magistrate Judge Dancks employed the proper legal standards, accurately
recited the facts, and correctly applied the law to those facts. (Dkt. No. 22, at Parts V and VI.)
As a result, the Court accepts and adopts Magistrate Judge Dancks’ Report-Recommendation in
3
See also Batista, 1995 WL 453299, at *1 (“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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its entirety for the reasons stated therein.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Dancks’ Report-Recommendation (Dkt. No. 22) 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;
and it is further
ORDERED that a certificate of appealability 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: September 15, 2015
Syracuse, New York
____________________________________
Hon. Glenn T. Suddaby
Chief, U.S. District Judge
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