UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
May 1, 2006
SERGEY MALTSEV, PETITIONER,
ALBANY COUNTY PROBATION DEPARTMENT, RESPONDENT.
The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Petitioner pro se Sergey Maltsev commenced a habeas corpus action pursuant to 28 U.S.C. § 2254 attacking his five year probationary sentence imposed following his Albany County Court plea to Welfare Fraud in the Fourth Degree. Pending are his objections to Magistrate Judge David R. Homer's Report which recommended denial of Maltsev's petition. See Report-Recommendation ("R&R"), Dkt. No. 9; Maltsev Objections, Dkt. No. 10. In his petition, Maltsev alleged that he was denied the effective assistance of trial and appellate counsel, that he did not waive his right to appeal, and that his guilty plea was unknowingly and involuntarily entered. With one factual exception related to the immigration consequences of his conviction, Maltsev's objections equitably argue that his petition should be granted and fail to address the other factual or legal bases for Judge Homer's Report.*fn1 Because Maltsev's objections are unspecific, he 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.
On May 25, 2001, Maltsev pled guilty to welfare fraud in the fourth degree with a recommended sentence of five years probation, restitution in the amount of $4,916.00, and a waiver of his right to appeal the conviction. Dkt. No. 10. Maltsev was represented by counsel and assisted by a Russian interpreter. Id. He was informed that he was subject to deportation due to the conviction. Id.
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.*fn2 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 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 procedurally defaulted, and articulate the standard of review applied to all issues. Id.
In his objections, Maltsev asserts that he does not communicate well in English. He claims that his social worker failed to fully explain the consequences of his legal violations, but he does not object to the specific findings in the Report-Recommendation. The court will apply a "clearly erroneous" standard of review to the Report since Maltsev has procedurally defaulted by not raising specific objections. While the court is willing to give a greater degree of leniency to pro se plaintiffs, and liberally construe the papers to give effect to their claims, Maltsev has produced no evidence to show that his conviction should be overturned. Accordingly, in reviewing Judge Homer's findings, the court finds no clear error of either fact or law and adopts his recommendation in its entirety.
Having reviewed the Report-Recommendation under a clearly erroneous standard and Maltsev's objections, this court accepts and adopts the recommendation of Judge Homer for the reasons stated in the June 13, 2005 Report-Recommendation.
WHEREFORE, it is hereby
ORDERED that Maltsev's petition is DISMISSED and the relief sought is DENIED, and it is further
ORDERED, that the clerk serve a copy of this Decision and Order upon the parties.
IT IS SO ORDERED.