Zielinski v. United States of America et al

Filing 4

DECISION / ORDER DENYING & DISMISSING Petitioner Zielinski's 1 Petition for Writ of Habeas Corpus; Signed by Sr. District Judge Thomas J. McAvoy dtd 6/11/2013 (cml) [ CRD traditionally served upon non-NEF petitioner @ Rensselaer County Correctional facilty ]

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
UNITED STATES OF AMERICA,
v.

1:11-CR-00533

JEREMY ZIELINSKI,
Defendant.
_________________________________________
THOMAS J. McAVOY,
Senior United States District Judge
DECISION and ORDER
I.

INTRODUCTION
The Court referred Defendant’s Petition for a Writ of Habeas Corpus, dkt. # 42, and

the U.S. Probation Department’s Petition to Revoke Defendant's Term of Supervised
Release, dkt. # 44, to the Hon. David E. Peebles, United States Magistrate Judge, for
Report and Recommendation.1 In his May 15, 2013 Report and Recommendation, dkt. #
76, Magistrate Judge Peebles recommends that:
(1) Defendant’s motion to reinstate his claim pursuant to 28 U.S.C. § 2255 be
GRANTED;
(2) Defendant’s petition for modification of his supervised release conditions
pursuant to 28 U.S.C. §§ 2241 and 2255, and 18 U.S.C. § 3583 be DENIED; and
(3) The government’s motion for revocation of the defendant’s supervised release
be GRANTED, and that the court exercise its sound discretion in determining the
appropriate sanction to be imposed for that violation.

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The Court presum es fam iliarity with all prior proceedings related to this case, including the Sum m ary
Order of the United States Court of Appeals for the Second Circuit affirm ing this Court's February 8, 2012
judgm ent that im posed certain supervised release conditions on Defendant. See 03/07/13 Mandate, dkt. #
58.

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Rep. Rec. p. 45.
Defendant objected to these recommendations. Dkt. # 80.
II.

STANDARD OF REVIEW
When objections to a magistrate judge's report and recommendation are lodged,

the district 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)(C); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d
Cir.1997)(The Court must make a de novo determination to the extent that a party makes
specific objections to a magistrate's findings.). “[E]ven 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.” Machicote v. Ercole, 2011 WL 3809920, at * 2
(S.D.N.Y., Aug. 25, 2011)(citations and interior quotation marks omitted); DiPilato v.
7-Eleven, Inc., 662 F. Supp.2d 333, 340 (S.D.N.Y. 2009)(same).
General or conclusory objections, or objections which merely recite the same
arguments presented to the magistrate judge, are reviewed for clear error. Farid v. Bouey,
554 F. Supp. 2d 301, 306 n. 2 (N.D.N.Y. 2008); see Frankel v. N.Y.C., 2009 WL 465645 at
*2 (S.D.N.Y. Feb. 25, 2009). After reviewing the report and recommendation, the Court
may “accept, reject, or modify, in whole or in part, the findings or recommendations made
by the magistrate judge. The judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions.” 28 U.S.C. § 636(b)(1)(C).

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III.

DISCUSSION
With this standard in mind, and after reviewing Defendant’s objections, the Court

determines to adopt the recommendations for the reasons stated in Magistrate Judge
Peebles’ thorough report.
The majority of Plaintiff’s objections, when boiled to their core, are that Magistrate
Judge Peebles erred because he did not agree with Defendant’s underlying proposition.
That proposition being, essentially, that Defendant had the “right” stemming from his
following of the Objectivisim philosophy to decide what protocol, if any, was required for
his sex offender treatment program. For the factual and legal reasons so well examined,
analyzed, and articulated in Magistrate Judge Peebles’ Report and Recommendation, that
proposition affords Defendant no relief. Most fundamentally, Magistrate Judge Peebles
concluded that the sex offender program did not burden a sincerely held religious
exercise, finding that Objectivism, as articulated by Defendant, it did not constitute a
religion as that term is defined by relevant law. See Rep. & Rec. pp. 29- 39. The Court
agrees with and adopts this conclusion.2 Therefore, the Court rejects Defendant’s
objection number 6, and finds that objection numbers 1, 3, 4, 5, 7, & 8 are rendered
academic and provide no basis for relief. Moreover, Defendant’s objection number 2 is
rejected inasmuch as there is no underlying violation of a fundamental right such to violate
the International Covenant on Civil and Political Rights or “other binding international law.”
Finally, the Court adopts Magistrate Judge Peebles’ conclusion that Defendant willfully

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The Court also agrees with and adopts Magistrate Judge Peebles’ alternative analysis that,
assum ing arguendo that Defendant’s beliefs related to Objectivism am ount to a religion, “defendant has failed
to establish, by a preponderance of the evidence, that the FMHA program substantially burdens his beliefs.”
Rep. & Rec. p. 39; see id. pp. 39-41.

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refused to participate in the sex offender treatment program, disrupted the program, and
was properly discharged from the program. See Rep. & Rec. pp. 41-43. Therefore, the
Court rejects Defendant’s objection numbers 9 & 10.
IV.

CONCLUSION
For the reasons stated above, the Court rejects each of Defendant’s objections, dkt.

# 80, made to Magistrate Judge Peebles’ May 15, 2013 Report and Recommendation.
Further and as also stated above, the Court accepts and adopts the conclusions and
recommendations made by Magistrate Judge Peebles in his May 15, 2013 Report and
Recommendation, dkt. # 76, in their entirety. Accordingly,
(1) Defendant’s motion to reinstate his claim pursuant to 28 U.S.C. § 2255 is
GRANTED;
(2) Defendant’s petition for modification of his supervised release conditions
pursuant to 28 U.S.C. §§ 2241 and 2255, and 18 U.S.C. § 3583, dkt. # 42, is
DENIED; and
(3) The government’s motion for revocation of Defendant’s supervised release, dkt.
# 44, is GRANTED, and the Defendant shall appear before the Court at a date to
be determined by the Court for the purpose of deciding the appropriate sanction to
be imposed for that violation.
IT IS SO ORDERED.
Dated: June 11, 2013

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