Carey v. Superintendent

Filing 65

ORDER: ORDERS that 60 Report and Recommendation is accepted in its entirety. ORDERS that Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, see Dkt. No. 1, is DENIED and his petition is DISMISSED in its ent irety. ORDERS that the Clerk of the Court shall enter judgment and close this case. ORDERS that a Certificate of Appealability will not issue in this case 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 Senior Judge Frederick J. Scullin, Jr on 8/10/15. {order served via regular mail on petitioner}(nas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________________
CARL CAREY,
Petitioner,
v.

9:13-CV-354
(FJS/RFT)

SUPERINTENDENT,
Respondent.
_________________________________________________
APPEARANCES

OF COUNSEL

CARL CAREY
09-B-1776
Elmira Correctional Facility
1879 Davis Street
Box 500
Elmira, New York 14902-0500
Petitioner pro se
OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
120 Broadway
New York, New York 10271
Attorneys for Respondent

PRISCILLA I. STEWARD, AAG

SCULLIN, Senior Judge
ORDER
Petitioner seeks a write of habeas corpus, pursuant to 28 U.S.C. § 2254, on the following
grounds: (1) he is actually innocent; (2) his conviction violates the Constitution's prohibition against
ex post facto prosecutions; and (3) the six-year delay in bringing the charges against him violated his
due process rights.
In a Report-Recommendation and Order dated July 15, 2015, Magistrate Judge Treece

recommended that this Court deny the petition in its entirety and not issue a certificate of
appealability. See Dkt. No. 60 at 14. Specifically, Magistrate Judge Treece found that Petitioner's
claim of actual innocence was unexhausted because he had not raised it in the state courts and that,
more significantly, a claim of actual innocence was not a ground for federal habeas relief. See id. at
9.
With respect to Petitioner's due process claim, Magistrate Judge Treece found that Petitioner
could have raised this claim in his appeal to the Fourth Department but that, because he could not
now file a second appeal with the Fourth Department, his claim was deemed exhausted for purposes
of his habeas application. See id. at 10. Nonetheless, Magistrate Judge Treece explained that, the
court's review of the substance of this claim was conditioned on Petitioner's ability to demonstrate
cause for his default and resulting prejudice or his ability to present evidence to show that he was
actually innocent of the crimes of which he was found guilty. See id. at 10-11 (footnote and
citations omitted). After reviewing the record, Magistrate Judge Treece concluded that Petitioner
had met neither of these requirements.
Finally, with respect to Petitioner's ex post facto claim, Magistrate Judge Treece found that
Petitioner had exhausted this claim because he had raised it on direct appeal and had sought leave to
appeal to the New York Court of Appeals. See id. at 12. Nonetheless, Magistrate Judge Treece
concluded that the court was procedurally barred from reviewing this claim on the merits because it
rested on an independent and adequate state ground. See id. Specifically, the Fourth Department
had concluded that Petitioner had failed to preserve his ex post facto argument in the trial court; and
this invocation of a procedural bar constituted an "independent" state ground. See id. at 12-13
(footnote and citations omitted). Alternatively, Magistrate Judge Treece concluded that Petitioner
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had not explained why he had not raised his ex post facto argument at the trial level, had not
introduced any new evidence that he was actually innocent, and had failed to explain why this court
should undermine the trial court's result. See id. at 13-14.
Petitioner filed multiple objections to Magistrate Judge Treece's recommendations. See Dkt.
Nos. 61-64.1 In his last submission, Petitioner stated that he was "not objecting to the ii Due
Process Vionlation [sic] cause [sic] that was deem [sic] exhausted . . . ." See Dkt. No. 64 at 1.
After reviewing a magistrate judge's recommendations, the district court may accept, reject
or modify those recommendations. See 28 U.S.C. § 636(b)(1). The court reviews de novo those
portions of the magistrate judge's recommendations to which a party objects. See Pizzaro v.
Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). "'"If, however, the party makes only conclusory or
general objections, . . . the Court reviews the Report and Recommendation only for clear error."'"
Salmini v. Astrue, No. 3:06-CV-458, 2009 WL 179741, *1 (N.D.N.Y. June 23, 2009) (quoting
[Farid v. Bouey, 554 F. Supp. 2d 301] at 306 [N.D.N.Y. 2008)] (quoting McAllan v. Von Essen, 517
F. Supp. 2d 672, 679 (S.D.N.Y. 2007))). Finally, even if the parties file no objections, the court
must ensure that the face of the record contains no clear error. See Wilds v. United Parcel Serv.,
Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003) (quotation omitted).
Although Petitioner has filed several documents objecting to Magistrate Judge Treece's
recommendations, the arguments he raised in each of his submissions are to a large extent repetitive
and general in nature. In addition, he asserted many of the same arguments in his petition, all of
which Magistrate Judge Treece carefully considered. Nonetheless, given Petitioner's pro se status,
1

In his first set of objections, Petitioner asked, in general terms, the Court to grant
discovery and to appoint counsel. After reviewing the file in its entirety, the Court finds that
neither discovery nor appointment of counsel is warranted.
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the Court has conducted a de novo review of the record. Having completed that review, the Court
finds no merit to Petitioner's arguments. Accordingly, the Court hereby
ORDERS that Magistrate Judge Treece's July 15, 2015 Report-Recommendation and Order
is ACCEPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Petitioner's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
see Dkt. No. 1, is DENIED and his petition is DISMISSED in its entirety; and the Court further
ORDERS that the Clerk of the Court shall enter judgment and close this case; and the Court
further
ORDERS that a Certificate of Appealability will not issue in this case because Petitioner
has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C.
§ 2253(c)(2); and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.

IT IS SO ORDERED.

Dated: August 10, 2015
Syracuse, New York

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