The opinion of the court was delivered by: Elfvin, Senior District Judge.
By order dated August 6, 1997, the undersigned referred this
action to United States Magistrate Judge Leslie G. Foschio
pursuant to 28 U.S.C. § 636(b)(1)(B). Upon consideration thereof
Judge Foschio filed a Report and Recommendation ("the R & R")
May 18, 1999 recommending dismissal of the pro se Petition by
Galvin brought under 28 U.S.C. § 2254 for a writ of habeas
corpus. Presently before this Court are Petitioner's Objections
to the R & R, which were filed pursuant to
28 U.S.C. § 636(b)(1)(C), Rule 72(b) of the Federal Rules of Civil Procedure
("FRCvP") and Rule 72.3(a)(3) of the Local Rules of Civil
Procedure ("LRCvP"). For the reasons stated below, Petitioner's
Objections will be overruled, the R & R will
be adopted in its entirety and the instant petition dismissed.
LRCvP 72.3(a)(3) requires that objections to a magistrate
judge's report and recommendation "specifically identify the
portions of the proposed findings and recommendations to which
objection is made and the basis for such objection and shall be
supported by legal authority." Failure to comply with this
requirement justifies a dismissal of the objections. Camardo v.
GM Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382
(W.D.N.Y. 1992). The objecting party also may not raise
arguments not priorly submitted for the magistrate judge's
consideration. Abu-Nassar v. Elders Futures, Inc., 88 Civ.
7906, 1994 WL 445638, at *4 n. 2 (S.D.N.Y. 1994). Pursuant to
28 U.S.C. § 636(b)(1)(C) and FRCvP 72(b), the undersigned must
conduct a de novo review of any portion of the R & R to which
specific written objection has been made and may "accept, reject
or modify, in whole or in part, the findings or recommendations"
therein. 28 U.S.C. § 636(b)(1)(C). Additional evidence may be
received or the undersigned may refer the matter back to Judge
Foschio with instructions. Id.; FRCvP 72(b).
It is pertinent to note here that Petitioner does not
specifically object to any portion of the R & R and instead
makes four broad assertions. Firstly, Petitioner objects to the
"depth of analysis given the petition." Petitioner's Objections
¶ 1. Secondly, Petitioner objects to Judge Foschio's
"allegation" that the record below is not factually inadequate.
Id. at ¶ 2. Thirdly, Petitioner maintains that Daye v.
Attorney Gen. of New York*fn1 demands an analysis not fully
afforded the petition. Id. And fourthly, Petitioner objects to
the R & R on the basis that such is not "grounded in fact and
law in view of The Rules Governing 28 U.S.C. § 2254 Cases [in]
the United States District Courts and Fay v. Noia*fn2."
Id. at ¶ 3.
Even considering Petitioner's pro se status, the first and
fourth objections simply do not satisfy any notion of
specificity or, for that matter, are not grounded in such sound
legal authority that this Court may justify a de novo review.
Accordingly, they will not be considered. Petitioner's second
objection to the R & R, moreover, is likewise unavailing in
light of the fact that Petitioner did not request an evidentiary
hearing until filing the instant objections. Entertaining such
an objection would "unduly undermine the authority of the
Magistrate Judge by allowing litigants the option of waiting
until a Report is issued to advance additional arguments" —
Abu-Nassar, at *4 n. 2 — and it will not be considered. It is
relevant to add here that the undersigned will not order carte
blanche an evidentiary hearing based on some amorphous
accusation that the record below is factually inadequate. To
warrant a hearing, Petitioner must set forth specific facts
supported by competent evidence which would entitle to him to
relief. Machibroda v. United States, 368 U.S. 487, 494-495, 82
S.Ct. 510, 7 L.Ed.2d 473 (1962); United States v. Aiello,
814 F.2d 109, 113 (2d Cir. 1987); Ramirez v. Headley, 98 Civ.
2603, 1998 WL 788782, at *10 (S.D.N.Y. 1998); see also
28 U.S.C. § 2254(e) (a state court's factual determination is
presumed to be correct unless one of the specified conditions in
section 2254(e) is met). In his objections, Petitioner sets
forth no specific facts that would warrant an evidentiary
It is hereby ORDERED that Magistrate Judge Foschio's Report
and Recommendation is adopted in its entirety and that the
Petition for a writ of habeas corpus is denied and that this
case shall be closed.
Petitioner initiated this action on March 11, 1997 requesting
habeas corpus relief under 28 U.S.C. § 2254. The matter was
referred to the undersigned by the Hon. John T. Elfvin on August
6, 1997 for report and recommendation.
Petitioner, Ricky Galvin ("Galvin"), was arrested on January
18, 1990 in connection with a homicide and robbery which
occurred earlier that day at Lockwood's Bar in Sodus, New York.
Galvin was subsequently charged in a three-count indictment with
Murder in the Second Degree (N.Y.Penal Law § 125.25(3) (McKinney
1998))*fn1 ("felony murder"), Robbery in the First Degree
(N.Y.Penal Law § 160.15(3)), and Robbery in the Second Degree
(N.Y.Penal Law § 160.10(1)).
At a preliminary hearing held on January 24, 1990 in Sodus
Town Court, the court determined that Galvin should be held
pending a presentation of the matter to the Grand Jury.
A pre-trial Huntley*fn2 and suppression hearing was held
on May 17, 1990 subsequent to which the court held that oral and
written statements made by Galvin with regard to the crime were
A three-day jury trial commenced in Wayne County Court on
August 21, 1990 and concluded on August 23, 1990. Hon. Maurice
E. Strobridge, Wayne County Court Judge, presided over the
trial. Galvin was represented at trial by Assistant Wayne County
Public Defender George A. Power. Wayne County District Attorney,
Stephen R. Sirkin, prosecuted the case. On August 23, 1990, the
jury returned a verdict of guilty on all three counts. On
October 17, 1990, Galvin was sentenced to an indeterminate term
of fifteen years to life.
Galvin, represented by Willie R. Fenton, Esq., appealed his
conviction to the New York Supreme Court Appellate Division,
Fourth Department, arguing that the evidence presented at trial
insufficient to support his conviction of felony murder and that
trial counsel erred in failing to request that the jury be given
an alternative instruction on criminal facilitation under
N.Y.Penal Law § 115.00. Galvin's conviction was unanimously
affirmed on February 5, 1993. People v. Galvin, 190 A.D.2d 1023,
594 N.Y.S.2d 1005 (4th Dep't. 1993). Leave to appeal to
the Court of Appeals was denied on May 5, 1993. People v.
Galvin, 81 N.Y.2d 1014, 600 N.Y.S.2d 202, 616 N.E.2d 859
Galvin then moved before the Appellate Division, Fourth
Department, pursuant to N.Y.Crim.Proc.Law § 440.10, to have his
judgment vacated based on newly discovered evidence. That
request was denied on June 24, 1996 by Wayne County Court Judge
Dennis M. Kehoe.
On May 11, 1997, Galvin filed the instant petition seeking
habeas relief on four grounds including (1) his direct appeal
was denied by the appellate court in a vague and insufficient
manner, (2) People v. Eastman, 85 N.Y.2d 265, 624 N.Y.S.2d 83,
648 N.E.2d 459 (1995),*fn3 requires reversal, (3) an
exculpatory statement was wrongfully withheld, and (4)
ineffective assistance of counsel.
Respondent's Answer was filed on August 4, 1997, accompanied
by the state court records and a Memorandum of Law. On August
12, 1997, Galvin filed a Reply/Traverse in response to the
Answer. Respondent filed a Supplemental Affirmation/Declaration
on August 13, 1997 and a further Supplemental
Declaration/Affirmation on August 14, 1997.
Based on the following, the petition should be DISMISSED.
Galvin testified at trial consistent with a statement he gave,
following his arrest on January 18, 1990, to New York State
Police Criminal Investigator Orlando Gonzalez which was read
into evidence at trial. According to Galvin, on the evening of
January 17, 1990, Steve Denner was tending bar at Lockwood's Bar
("the bar") located at 68 Ridge Road East in Sodus, New York.
(T. 66-67, 202).*fn4 Galvin and his friend, Leroy Smith
("Smith"), paid someone to drive them to the bar, arriving there
at approximately 9:30 P.M. Galvin entered the bar to look for a
friend of his, and ordered a beer. (T. 152, 202). When Galvin
entered the bar, he was armed with a concealed knife which he
carried for protection. (T. 200-201). Although Galvin usually
wore his knife on a belt, before entering the bar he had removed
the knife from his belt and concealed it in his coat so that no
one would think he was "looking for trouble." (T. 235, 251-53).
Galvin had known Denner for about six months. (T. 202-203).
Smith remained outside the bar where he waited in the car in
which they had been driven to the bar. (T. 152, 204). After a
few minutes, Smith joined Galvin in the bar. (T. 152, 204).
Over the next several hours, Galvin drank beer and shot pool
with Denner and Kenneth A. Thebert, another bar patron. (T.
153-54, 205). Smith also drank beer, but did not shoot pool. (T.
65, 126, 129, 153)
Galvin, who lost between $4 and $10 playing pool with Denner
and Thebert, (T. 154, 214), got into an argument with Denner
over the game rules which caused Denner to temporarily close the
pool table around midnight. (T. 50-51, 154, 211-12). After
Galvin stopped playing pool, he bought another beer. (T. 215).
In total, Galvin drank three draft beers and one shot of liquor.
Although Thebert sometimes stayed at the bar until closing
time, on that night he left earlier. Around 2:00 A.M. on January
18, 1990, only Galvin, Smith and Denner remained in the bar. (T.
154). According to Galvin, he planned to stay at the bar until
closing time as Denner usually gave him a ride home. (T. 154,
215). Smith asked Denner what time he was ...