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Slater v. Herbert

April 17, 2006

DONALD SLATER, PETITIONER,
v.
VICTOR HERBERT, RESPONDENT.



The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Pending is petitioner pro se Donald Slater's objections to Magistrate Judge David E. Peebles's Report which recommended denial of Slater's habeas corpus petition because all of his allegations are without merit. See Judge Peebles' Report-Recommendation ("R&R"), Dkt. No. 20; Slater Objections, Dkt. No. 21. Slater commenced this action pursuant to 28 U.S.C. § 2254 on June 4, 2001. In his petition, he argued that 1) his due process rights were violated when the trial court inadequately instructed the jury as to the elements of kidnapping and refused to charge the defense of justification, and 2) his conviction for two counts of assault in the second degree should have been dismissed since assault in the second degree is a lesser included offense of assault in the first degree, for which he was also convicted.

With the exception of his objection to Judge Peebles' treatment of the kidnapping jury charge, which the court reviews de novo, Slater has raised new grounds for relief in his objections. Because he failed to raise these grounds before the Magistrate Judge, Slater has procedurally defaulted, and the court applies a clearly erroneous standard of review. Upon careful consideration of the arguments, the relevant parts of the record, and the applicable law, the court adopts the Report-Recommendation in its entirety.*fn1

II. Background

Following a jury trial, Slater was convicted in Onondaga County Court of various crimes, including kidnapping and assault, arising from an abduction and assault of a woman who he ran over with his vehicle. Slater was sentenced to indeterminate sentences of twenty-five years to life on the charges of attempted murder in the second degree, kidnapping, assault in the first degree, attempted assault in the first degree, and assault in the second degree; a concurrent indeterminate term of two years to life for unlawful imprisonment; and twelve years to life for the reckless endangerment in the first degree count, with an additional one year concurrent term for the misdemeanor offense of criminal possession of a weapon in the fourth degree. Slater appealed to the Fourth Department on several grounds,*fn2 and the Fourth Department reversed Slater's convictions for attempted murder and reckless endangerment, granting him a new trial on these counts. The remainder of his conviction was left intact. Slater's request for leave to appeal to the New York State Court of Appeals was denied on July 26, 2000. This action followed.

III. Discussion*fn3

A. Standard of Review

District courts are authorized to refer habeas corpus petitions to Magistrate Judges for proposed findings and recommendations regarding disposition. See Almonte v. NYS Div. of Parole, No. 04-CV-484, 2006 WL 149049, at *3 (N.D.N.Y. Jan. 18, 2006). When a report and recommendation is filed, the parties must comply with specified procedures if they seek statutorily mandated district court review. Id. The local rules further require that parties must file written objections that specify the findings and recommendations to which they object, and the basis for their objections. Cf. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b); L.R. 72.1(c).

If a party fails to object in a timely manner, it procedurally defaults and is not entitled to judicial review. Almonte, 2006 WL 149049, at *3 (citation omitted). The doctrine of procedural default applies in the district courts as long as parties, including those appearing pro se, receive clear notice of the consequences of their failure to properly object. Id. The notice requirement is satisfied if the report at least states that the failure to object will preclude appellate review.*fn4 Id.

Moreover, lack of specificity also gives rise to procedural default. Almonte, 2006 WL 149049, at *4. Objections must address specific findings and conclusions. Id. Therefore, a party that limits its specific objections to a part of a report's findings or recommendations procedurally defaults as to the remainder. Id. Frivolous or conclusory objections also fail to satisfy the specificity requirement. Id. Furthermore, mere resubmission of the same papers and arguments as submitted to the Magistrate Judge fails to comply with the specificity requirement and also results in default. Id.

The district court must review de novo those portions of the Magistrate Judge's findings and recommendations that have been properly preserved by compliance with the specificity requirement. Id. De novo review requires that the court give fresh consideration to those issues to which specific objections have been made. It will examine the entire record, and make an independent assessment of the magistrate judge's factual and legal conclusions. Id. at *5 (internal quotation and citation omitted). After review, the district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge ... [and] may also receive further evidence or recommit the matter to the magistrate judge with instructions." Id. (citations omitted).

When a party procedurally defaults, it is within the court's discretion to elect which standard it deems proper to apply. Almonte, 2006 WL 149049, at *6. This court will apply a "clearly erroneous" standard, and defines that phrase as follows: a report is clearly erroneous if the court determines that there is a mistake of fact or law which is obvious and affects substantial rights. Id.

Accordingly, when required by statute or rule or when the court's routine review so dictates, the court will make a de novo determination of findings and recommendations. Id. Absent de novo review, the court will apply a clearly erroneous standard. Id. Furthermore, the court will routinely identify issues which have been ...


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