United States District Court, S.D. New York
June 7, 2005.
JAMES BESSER a/k/a JAMES ZERILLI, Petitioner,
JAMES WALSH, Superintendent, Respondent.
The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge
SUPPLEMENTAL REPORT AND RECOMMENDATION
To the Honorable Lewis A. Kaplan, United States District Judge:
My prior Report and Recommendation in this case, Besser v.
Walsh, 02 Civ. 6775, 2003 WL 22801952 (S.D.N.Y. Nov. 26, 2003)
(Peck, M.J.), recommended granting Besser's habeas petition to
the extent of finding New York's persistent felony offender
statute to violate Apprendi and that the State be directed to
In Brown v. Greiner, Nos. 03-2242, 032269, 032480, 032833,
___ F.3d ___, 2005 WL 1314429 (2d Cir. June 3, 2005), the Second
Circuit upheld New York's persistent felony offender statute
against similar Apprendi challenges. Accordingly, unless the
Supreme Court reverses the Second Circuit's decision, in light of Brown v.
Greiner, the Court should deny Besser's petition in its
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from service of this Report to file written objections. See
also Fed.R.Civ.P. 6. Such objections (and any responses to
objections) shall be filed with the Clerk of the Court, with
courtesy copies delivered to the chambers of the Honorable Lewis
A. Kaplan, 500 Pearl Street, Room1310, and to my chambers, 500
Pearl Street, Room 1370. Any requests for an extension of time
for filing objections must be directed to Judge Kaplan. Failure
to file objections will result in a waiver of those objections
for purposes of appeal. Thomas v. Arn, 474 U.S. 140,
106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann,
9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822,
115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.
1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert.
denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v.
Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.
1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988);
McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983);
28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).