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NELSON v. SMITH

September 26, 1985

JIMMIE NELSON, Petitioner,
v.
HAROLD J. SMITH, Superintendent, Attica Correctional Facility, Attica, New York, and ROBERT ABRAMS, Attorney General of the State of New York, Respondents



The opinion of the court was delivered by: WARD

ROBERT J. WARD, D.J.

Jimmie Nelson petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By order dated March 19, 1984, the case was referred to the Honorable Michael H. Dolinger, united States Magistrate, pursuant to 28 U.S.C. § 636(b)(1) and Rule 4 of the Local Rules for proceedings Before magistrates, to hear and report on Nelson's petition. On June 6, 1984, magistrate Dolinger submitted his Report and Recommendation (the "Report"), in which he recommended that the writ be denied and the instant petition be dismissed. The Court has reviewed the Report and has considered de novo those portions of the Report to which petitioner has made timely objection. For the reasons hereinafter stated, the Magistrate's Report and Recommendation are accepted and the instant petition is dismissed.

 BACKGROUND

 A. Procedural History

 Petitioner challenges a judgment entered on a jury verdict by the Supreme Court of New York, New York County (Edwards, J.) on June 8, 1981. Nelson was convicted on one count of Criminal Possession of a Controlled Substance in the fourth Degree, see N.Y. Penal Law § 220.09, and sentenced as a predicate felon to an indeterminate term of from five to ten years of incarceration. The New York Supreme Court, Appellate division, First Department, unanimously affirmed without opinion petitioner's conviction on March 30, 1982. On June 22, 1982 the New York Court of Appeals denied leave to appeal.

 Nelson filed his first petition for federal habeas corpus relief on July 21, 1982. That petition, which had been assigned to Judge Irving Ben Cooper of this Court, was dismissed for failure to exhaust available state remedies. Nelson v. Jones, 82 Civ. 4752 (IBC) (S.D.N.Y. Nov. 29, 1982). Following various proceedings in the Court of Appeals for the Second circuit, Judge Cooper issued an additional order on November 17, 1983, identifying the particular claims he considered to be unexhausted.

 While his habeas corpus petition was pending before Judge Cooper, Nelson also filed a motion in state court to set aside his conviction pursuant to N.Y. Crim. Proc. law § 440.10. That motion was denied by the New York Supreme Court (Berkman, J.) on May 26, 1983. The Appellate Division of the New York Supreme Court, first Department, denied leave to appeal on August 4, 1983. On August 22, 1983 the New York Court of Appeals dismissed Nelson's application for leave to appeal on the ground that the order of the Appellate Division was not appealable.

 The instant petition for a writ of habeas corpus, filed September 28, 1983, originally set forth five grounds for relief. On February 24, 1984, this Court entered an order holding that petitioner had adequately exhausted his available state judicial remedies as to four of the five claims raised in the petition. However, because the Court was unable to ascertain the nature of the claim petitioner sought to raise as the fifth ground of the petition, the Court directed petitioner to file an affidavit clarifying the nature of that claim. The Court subsequently received several affidavits and sworn letters from petitioner purporting to clarify the nature of this fifth claim for relief. The last three of these submissions requested that the Court construe ground five of the petition, which referred to "[i]llegally obtained statements... use[d] against petitioner at his trial," as a reiteration of petitioner's fourth claim for federal habeas relief. That latter claim alleged that the police officers who had arrested Nelson failed to give him any Miranda warnings.

 In an order dated March 19, 1984, the court held that the in instant petition would be construed, in accordance with petitioner's expressed wishes, to state four rather than five distinct claims for habeas corpus relief. Moreover, inasmuch as the Court previously had concluded that the first four claims raised in the petition were adequately exhausted, the Court further held that petitioner had exhausted his available state court remedies with regard to the entire petition as it would then be construed. Accordingly, the Court referred the case to Magistrate Dolinger for a report and recommendation on the merits of Nelson's petition.

 B. Nelson's Claims

 As construed by the Court in its order of March 19, 1984, and as evaluated by Magistrate Dolinger in his Report, the instant petition asserts four separate grounds for federal habeas relief. The first ground raised by petitioner is unlawful search and seizure. Specifically, Nelson claims that the search warrant purportedly describing the apartment in which he was arrested was unconstitutionally ambiguous and inaccurate. See Petition at 5. The second ground asserted in the petition is ineffective assistance of counsel at pretrial proceedings and at trial. Nelson faults his counsel in the prior state criminal proceeding in two respects: first, for failing to challenge the probable cause basis for issuance of the search warrant for the apartment in which he was arrested; and second, for not objecting before or during trial to the admission into evidence of statements he made to police without his have been advised of his Miranda rights. See id. Petitioner's third ground for seeking habeas corpus relief is his allegation that the evidence presented at trial was insufficient to support a guilty verdict. Id. at 6. Nelson's fourth contention, as previously noted, is that he was given no Miranda warnings upon his arrest, and consequently made self-incriminating statements that were used against him at trial. Id.

 C. Magistrate's Report and Responses

 On June 6, 1984, magistrate Dolinger filed his Report and Recommendation on Nelson's habeas corpus petition. In the thirty-seven page Report, the Magistrate addressed seriatim the four claims for relief raised in the petition. Concluding that none of petitioner's claims possessed merit, the Magistrate recommended that a writ of habeas corpus not issue and that the instant petition be dismissed. Report at 36.

 In conformity with the local rules of procedure, copies of the Report were mailed to the parties at the time the Report was filed. See Rule 7, local Rules for Proceedings Before Magistrates ("Local Rules"). In a sworn submission filed June 27, 1984, petitioner informed the Court that he had recently been transferred to another correctional facility, and that therefore he had only received a copy of the Report on June 14, 1984. In his submission, entitled "Petitioner's Answer in Respond [sic] to Magistrate Report and Recommendation ("Petitioner's Answer"), Nelson reiterated certain of the claims raised in the instant habeas petition and made reference at points to the Magistrate's Report. The Court therefore construed this submission to constitute petitioner's written objections to the Magistrate's Report and, under the circumstances, deemed these written objections to have been timely filed within the meaning of 28 U.S.C. § 636(b)(1), Rule 72(b), Fed. R. Civ. P., and Local Rule 7. *fn1"

 Some weeks later, the Court received from petitioner another sworn submission, entitled "Petitioner's Supplemental objection to Magistrate's Report and Recommendation" ("Petitioner's Supplemental Objection"). This second submission, which was filed July 9, 1984, appeared merely to attempt to clarify one of the points raised in Petitioner's Answer. In view of petitioner's pro se status, the Court accepted this submission as a supplemental objection to the Magistrate's Report and deemed it likewise to have been timely filed. *fn2" Thereafter, respondents requested additional time to respond to petitioner's objections to the Report. By order dated August 9, 1984, respondents' time to file a response to petitioner's objections was extended. Respondents subsequently served and filed a memorandum of law ("Respondents' Response").

 DISCUSSION

 To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record. See Rule 72, Fed. R. Civ. P., Notes of Advisory Committee on Rules (citing Campbell v. United States District Court, 501 F.2d 196, 206 (9th Cir.), cert. denied, 419 U.S. 879, 95 S. Ct. 143, 42 L. Ed. 2d 119 (1974)). However, when timely objection has been made to a portion or portions of a magistrate's report, the district judge must "make a de novo determination ...of any portion of the magistrate's disposition to which specific written objection has been made...." Rule 72(b), Fed. R. Civ. P.; see also 28 U.S.C. § 636(b)(1). the judge may then accept, reject or modify, in whole or in part, the magistrate's proposed findings and recommendations. 28 U.S.C. § 636(b)(1).

 A district court's obligation to make a de novo determination of properly contested portions of a magistrate's report does not require that the judge conduct a de novo hearing on the matter. United States v. Raddatz, 447 U.S. 667, 676, 65 L. Ed. 2d 424, 100 S. Ct. 2406 (1980). It is sufficient that the district court "arrive at its own, independent conclusion about those portions of the magistrate's report to which objection is made...." Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983). To this end, the court must "exercise...sound judicial discretion with respect to whether reliance should be placed on [the magistrate's] findings." American Express Int's Banking Corp. v. Sabet, 512 F. Supp. 472, 473 (S.D.N.Y. 1981), aff'd, 697 F.2d 287 (2d Cir. 1982).

 As the Court indicated above, petitioner in the instant case has filed two submissions that the Court deems to contain timely written objections to the Magistrate's Report. To the extent petitioner's objections are specifically directed to one or more portions of the Report, therefore, the Court must made a de novo determination of the matter(s) underlying such objections. See Rule 72(b), Fed. R. Civ. P.; Local Rule 7. However, those portions of the Report to which petitioner has not specifically objected will be adopted by the ...


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