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Hildreth v. Donnelly

May 1, 2006

GARY HILDRETH, PLAINTIFF,
v.
EDWARD DONNELLY, DEFENDANT.



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 Gary Hildreth's objections to Magistrate Judge Homer's Report which recommended denial of Hildreth's habeas corpus petition.*fn1 See Judge Homer's Report-Recommendation ("R&R"), Dkt. No. 18; Hildreth Objections, Dkt. No. 20. Hildreth commenced this habeas corpus action pursuant to 28 U.S.C. § 2254 on October 24, 2002, challenging his New York State convictions for murder in the second degree, burglary in the first degree, aggravated criminal contempt, and endangering the welfare of a child. Hildreth's petition claims: (1) inconsistent verdict and double jeopardy; (2) ineffective assistance of trial counsel; and (3) ineffective assistance of appellate counsel. For the following reasons, the court reviews the objected-to portions of the Report-Recommendation de novo and the remainder under a clearly erroneous standard. 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.*fn2

II. Background*fn3

Following Hildreth's convictions for murder in the second degree, manslaughter in the first degree, burglary in the first degree, aggravated criminal contempt, and endangering the welfare of a child, he was sentenced to an indeterminate term of twenty-five years to life imprisonment. Hildreth's motion to vacate the judgment was denied on March 10, 1999, and the Appellate Division affirmed the convictions. Application for leave to appeal to the New York Court of Appeals was denied on September 25, 2001. This action followed.

III. Facts

On May 16, 1998, Hildreth unlawfully entered the home of his estranged girlfriend, Paulina Merrills. She was sleeping in her bedroom, and their two young children were sleeping in a nearby room. Hildreth was carrying a .22 rifle which he placed under the bed where Merrills was sleeping. Shortly thereafter, Merrills awoke and told Hildreth that she was seeing another man. Hildreth removed the gun from under the bed, and it discharged, killing Merrills. Hildreth called 911 and drove his two sons to his apartment before the ambulance arrived at Merrills' home. The next day, police officers questioned Hildreth while he remained in his home with the gun and his children. Hildreth eventually surrendered.

IV. Discussion

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 an appropriate standard of review. 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 ...


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