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January 7, 2000


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 hearing.

The only objection that could properly be considered an objection to the R & R — if the undersigned should overlook its otherwise gross lack of specificity — is Petitioner's averment that the magistrate judge did not properly consider Daye when assessing the merits of his habeas corpus application. Daye holds that the exhaustion requirement in the habeas context is not satisfied unless the federal claim was "fairly presented" to the state courts and rested on essentially the same legal doctrine asserted in the federal petition. Daye, at 191-192. This requires that a federal court be alert to and consider constitutional claims not explicitly presented to the state courts but nevertheless advanced thereto as "the nature or presentation of the [claims were] * * * likely to alert the court to the claim's federal nature." Id., at 192. As this reasoning applies to the instant matter, it appears to be Petitioner's position that — even though chapter and verse of the Constitution may not have been cited — Judge Foschio did not properly consider all of the possible constitutional dimensions of his claim. Id. at 194. It suffices to state here that the R & R, while not explicitly referring to Daye, belies Petitioner's contention. In no uncertain terms, the R & R gives full consideration to Petitioner's litany of claimed constitutional deprivations, including those asserted under the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. Accordingly, Petitioner's third objection fails.

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 voluntary.

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 was 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 (1993).

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. (T. 215).

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 ...

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