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BINGHAM v. DUNCAN

June 12, 2003

KENNETH E. BINGHAM, PETITIONER, AGAINST GEORGE DUNCAN, SUPERINTENDENT, RESPONDENT.


The opinion of the court was delivered by: Laura Taylor Swain, District Judge

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION
On November 4, 2002, Magistrate Judge George A. Yanthis issued a Report and Recommendation ("Report") recommending that the Court dismiss petitioner Kenneth E. Bingham's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner filed objections within the time provided.

In 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." 28 U.S.C.A. § 636(b)(1)(C) (West 2002). "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 record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted); see also Pizarro v. Bartlet, 776 F. Supp. 815, 817 (S.D.N.Y. 1991 (court may accept report if it is "not facially erroneous"). The Court is required to make a de novo determination as to the aspects of the Report to which objections are made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).

Petitioner, in a letter dated January 5, 2003, makes general objections to the Report and argues that he needs legal assistance in order properly to prepare his objections to the Report. In his January 5, 2003 letter, Petitioner's only specific objection is to Judge Yanthis' recommendation to dismiss Petitioner's Fourth Amendment claim. Petitioner argues that his "Fourth Amendment claim was not litigated fully and fairly by the state court." Petitioner's objections are conclusory and general, and do nothing more than take issue with Judge Yanthis' findings for the simple reason that they are not favorable to the Petitioner. Objections that are merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition normally will not suffice to warrant de novo review of the magistrate's recommendations. See Vargas v. Keane, No. 93-CV-7852 (MBM), 1994 WL 693885 (S.D.N.Y. Dec. 12, 1994); Klawitter v. Chater, No. 93-CV-0054E, 1995 WL 643367 at *1 (W.D.N.Y. Oct. 18, 1995); Murphy v. Grabo, No. 94-CV-1684 (RSP), 1998 WL 166840 at *1 (N.D.N.Y. Apr. 9, 1998). Although the nature of Petitioner's objections merits only a clear error review, in the interest of fairness the court has conducted a de novo review and finds Judge Yanthis' Report embodies a characteristically well-reasoned and sound analysis of Petitioner's claims. The Court concludes that Judge Yanthis' findings are correct, and hereby adopts the Report in its entirety with the exception of the first three sentences of the section captioned "B. Appellate Counsel."

Petitioner's request for appointment of counsel is denied. On February 22, 2002, Judge Yanthis' denied Petitioner's application for appointment of counsel with leave to renew. Judge Yanthis' order further stated that the Court would sua sponte reconsider petitioner's application "if, upon review of the record, the Court determines that the petition may have merit, or that complex issues are involved or that appointment of counsel is otherwise shown to be justified." Judge Yanthis Order dated February 22, 2002. Judge Yanthis did not find such grounds for reconsideration of Petitioner's application. The undersigned is also of the view that appointment of counsel is warrantless. Petitioner's claims do not satisfy "a threshold showing of some likelihood of merit," Hendricks v. Coughlin, 114 F.3d 390, 393-94 (2d Cir. 1997), and the Court does not find any other reason to grant Petitioner's application.

The Petitioner may not appeal this order unless "a circuit justice or judge issues a certificate of appealability." 28 U.S.C.A. § 2253(c)(1) (West 2002). A certificate will be granted "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C.A. § 2253(c)(2) (West 2002); see generally United States v. Perez, 129 F.3d 255, 259-60 (2nd Cir. 1997) (discussing the standard for issuing a certificate of appealability). The Court finds that Petitioner will not be able to sustain this burden. Thus, the Court declines to issue a certificate of appeal. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444 (1962).

Judge Yanthis' Report is hereby adopted in its entirety with the exception of the first three sentences of the section captioned "B. Appellate Counsel." The Report follows.

SO ORDERED.

TO THE HONORABLE LAURA TAYLOR SWAIN, United States District Judge:

Petitioner Kenneth Bingham ("petitioner"), proceeding pro se, has filed a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, I respectfully recommend that the Court deny the petition in its entirety.

BACKGROUND

On April 9, 1997, following a jury trial, petitioner was convicted of two counts of third degree criminal possession of a weapon and one count of fourth degree criminal possession of stolen property. He was subsequently sentenced, as a persistent felony offender, to concurrent terms of imprisonment of fifteen years to life on each count. Petitioner is presently incarcerated at the Elmira Correctional Facility.

Petitioner, by and through counsel, timely appealed the judgment of conviction to the Appellate Division, Third Department. On January 13, 1998, petitioner filed a motion to vacate the judgment, which the trial court denied. Petitioner appealed the denial of his motion to vacate to the Third Department, which consolidated petitioner's appeals. On February 5, 1998, petitioner's counsel filed an appellate brief. On March 7, 1998, petitioner objected to his appellate counsel's representation and requested time to file a supplemental pro se brief. The Third Department granted petitioner's request, and he timely filed a pro se brief. By decision and order dated July 8, 1999, the Third Department reversed the judgment of conviction on both counts of criminal possession of a weapon and affirmed the judgment of conviction for possession of stolen property. See People v. Bingham, 263 A.D.2d 611, 692 N.Y.S.2d 823 (3d Dep't 1999). The New York Court of Appeals denied petitioner leave to appeal on August 30, 1999. See People v. Bingham, 93 N.Y.2d 1014, 719 N.E.2d 934, 697 N.Y.S.2d 573 (1999).

On December 14, 1999, petitioner filed a writ of error coram nobis on the ground of ineffective assistance of appellate counsel. On February 22, 2000, the Third Department denied petitioner's writ. On April 24, 2000, petitioner filed a second motion to vacate, which the trial court denied on May 22, 2000. The Third Department denied petitioner leave to appeal. On October 26, 2000, the Court of Appeals also denied petitioner leave to appeal. See People v. Bingham, 95 N.Y.2d 904, 739 N.E.2d 1149, 716 N.Y.S.2d 644 (2000). Thereafter, on January 14, 2001, petitioner timely filed a Petition for a Writ of Habeas Corpus.

On April 19, 2001, petitioner filed a third motion to vacate, which the trial court denied on August 22, 2001. The Third Department denied petitioner leave to appeal on October 31, 2001. On December 19, 2001, the Court of Appeals also denied petitioner leave to appeal. See People v. Bingham, 97 N.Y.2d 679, 764 N.E.2d 398, 738 N.Y.S.2d 294 (2001). On April 2, 2002, petitioner filed a ...


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