UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
June 5, 2007
NAPOLEON TETREAULT, PETITIONER,
The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Petitioner, an inmate in the custody of the New York State Department of Correctional Services, brought this proceeding for habeas corpus under 28 U.S.C. § 2254. Petitioner's application was referred to United States Magistrate Judge David R. Homer for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.4.
Magistrate Judge Homer recommends that the petition be denied. Petitioner objects. Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court conducts a de novo review of those parts of a magistrate judge's report and recommendation to which a party objects.
On de novo review, the Court concludes that petitioner's challenge to the factual sufficiency of his plea allocution is procedurally barred. The New York courts decided the issue on a ground that was independent of the federal question and adequate to support the judgment, see Coleman v. Thompson, 501 U.S. 722, 729 (1991), i.e., that petitioner had failed to preserve the issue. People v. Tetreault, 783 N.Y.S. 2d 433 (3d Dep't 2004), leave to appeal denied 4 N.Y. 2d 749 (2004). Petitioner makes no showing of cause for his default in preserving the claims, nor has he shown that this Court's failure to consider his claims would result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750.
Petitioner's other arguments regarding matters occurring prior to his guilty plea have been waived; a guilty plea effectively waives any claims of error occurring prior thereto. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). Issues raised for the first time in his petition and in his objection to the Report and Recommendation are unexhausted. Petitioner raises no other issues warranting relief.
It is therefore
ORDERED that the Report and Recommendation of United States Magistrate Judge David R. Homer (Dkt. No. 15) is approved and adopted; and it is further
ORDERED that the petition is denied.
IT IS SO ORDERED.
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