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BESSER v. WALSH

United States District Court, S.D. New York


June 7, 2005.

JAMES BESSER a/k/a JAMES ZERILLI, Petitioner,
v.
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 re-sentence Besser.

  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 entirety.*fn1

  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).


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