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August 8, 2005.

THOMAS BUTTI, Petitioner,
GLENN S. GOORD, Commissioner, New York State Department of Correctional Services, Respondent.

The opinion of the court was delivered by: DENISE COTE, District Judge


On August 28, 2003, petitioner Thomas Butti ("Butti") filed this timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, to vacate his 1999 conviction for various crimes related to insurance fraud. The petitioner asserts violations of (1) his right to a speedy trial and (2) his due process protections resulting from pretrial delay and the prosecution's reliance on a pretrial waiver of his state speedy trial right. The petition was referred to Magistrate Judge James C. Francis for a Report and Recommendation ("Report"). The Report, to which Butti objects, recommends that the petition be denied. For the following reasons, the Report is adopted and the petition is denied.


  The relevant facts are set forth in the Report and summarized here. Butti has been convicted three times for crimes relating to insurance fraud. On August 18, 1994, Butti pled guilty to charges relating to insurance fraud and entered into a Memorandum of Understanding ("Cooperation Agreement") with the prosecution. When Butti violated the terms of the Cooperation Agreement he was sentenced on the basis of his guilty plea.

  On November 24, 1996, Butti was arrested on new charges of insurance fraud, relating to events occurring around the same time as those covered by his first conviction. On December 11, 1996, Butti entered into a Superior Court Information Conference Waiver ("SCI Agreement") with the District Attorney and agreed to waive his New York state right to a speedy trial during plea negotiations. On November 10, 1997, Butti rejected the offered plea agreement, voiding the SCI Agreement.

  Consequently, on March 12, 1998, Butti was indicted on ten counts related to insurance fraud. Judge Angiolillo denied Butti's pretrial motion to dismiss the charges against him for violation of his right to a speedy trial and due process. Butti's omnibus motion, which again included his speedy trial claim, was denied on September 25, 1998, and his motion to reargue his omnibus motion was denied on December 14, 1998. Trial was set for January 11, 1999. On the trial date, Butti pled guilty to all ten counts in the indictment. This was Butti's second conviction for crimes related to insurance fraud.*fn1 During his plea allocution he reserved his right to appeal and withdrew a renewed motion to reargue his omnibus motion. Butti was sentenced on the basis of his plea.

  On appeal, Butti argued that the pre-indictment delay violated his Sixth Amendment speedy trial and Fourteenth Amendment due process rights. Butti argued that the prosecution's reliance on the Cooperation Agreement waivers in excusing pretrial delay violated due process as well.*fn2 On May 28, 2002, the Appellate Division, Second Department affirmed Butti's conviction but vacated a restitution order, holding that "[u]pon our review of the facts set forth in People v. Taranovich, 335 N.E.2d 303 (N.Y. 1975), we conclude that the defendant's right to a speedy trial was not violated," and that "[t]he defendant's remaining contentions were waived upon his plea of guilty to the entire indictment." People v. Butti, 742 N.Y.S.2d 570, 571 (2d Dep't 2002). On September 18, 2002, the New York Court of Appeals denied leave to appeal. People v. Butti, 779 N.E.2d 190 (N.Y. 2002).


  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. § 636(b)(1)(C). The court shall make a de novo determination of the portions of the report to which petitioner objects. United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). "A district court may adopt those portions of the Report to which no objections have been made and which are not facially erroneous." Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 170 (S.D.N.Y. 2003) (citation omitted).

  The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, requires that a habeas corpus petition based on claims that were adjudicated on the merits in state court must be denied unless the state court's adjudication

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
28 U.S.C. § 2254(d) (emphasis supplied). AEDPA further mandates that a state court's determination of a factual issue shall be presumed correct and may be rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

  Forfeiture of Due Process Claim

  Butti claims that the pre-trial delay, including any reliance on his Cooperation Agreement as a waiver of his speedy trial right, violated his constitutional due process guarantee. The Report found Butti's due process claims were procedurally barred from review, because they had been denied on independent and adequate state law grounds in the Appellate Division's proceedings. Butti fails to raise a substantive objection to the Report's analysis. Instead he argues that his reliance on the trial court's representations during his plea allocution regarding his right to appeal preserved his due process claims for habeas review. Butti cites Lee v. Kemna, 534 U.S. 362 (2002), in support of this argument.

  The Appellate Division, citing People v. O'Brien, 439 N.E.2d 354 (N.Y. 1982), and People v. Gerber, 589 N.Y.S.2d 171 (2d Dep't 1992), denied Butti's due process claims on state law waiver grounds. Moreover, Butti's citation of Lee is inapposite, as Lee addressed the preservation of habeas claims raised by a defendant who had proceeded to trial, not one who entered a guilty plea. Therefore, the Report correctly found that the ...

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