Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Foster v. Miller

June 29, 2007

WARREN FOSTER, PETITIONER,
v.
DAVID MILLER, SUPERINTENDENT EASTERN CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Barbara S. Jones United States District Judge

Order

Before the Court are the objections of Habeas Petitioner Warren Foster to the Report and Recommendation ("R&R") of Magistrate Judge James C. Francis recommending that Foster's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 be denied. For the following reasons, the Court adopts the R&R, Foster's objections are overruled, and his Habeas Petition is DENIED.

I. BACKGROUND AND PROCEDURAL HISTORY

On September 4, 1996, Foster stole over $400.00 from Benny Brown, a co-tenant of the apartment building in which Foster resided. Brown had been holding the money for a third tenant, Annie Stewart. During the course of the robbery Foster punched Brown twice in the face, causing him to suffer lacerations, swelling, and headaches. Brown did not seek medical treatment because he could not afford it.

At the time of the crime, Foster was on parole. During a regular visit to Foster's residence, his parole officer, Thomas Stanford, learned of the robbery from Brown and Stewart. Stanford contacted the police who then arrested Foster.

After a jury trial, Foster was convicted of Robbery in the Second Degree and was sentenced as a persistent felony offender to a term of imprisonment of sixteen years to life. The Court presumes familiarity with the lengthy procedural history of this case in State Court, none of which is relevant to the instant proceedings. (See R&R 4-8.) Foster timely filed the instant Habeas Petition after exhausting all of his state remedies with respect to each of the claims raised.

II. DISCUSSION

a. Standard of Review

This Court reviews de novo any portions of a Magistrate Judge's report and recommendation that are objected to. 28 U.S.C. § 636(b)(1)(C). Those portions of a report and recommendation to which a party has not specifically objected will be adopted by the Court as long as those sections are not clearly erroneous. See Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, (1985); Greene v. WCI Holdings Corp., et al, 956 F. Supp. 509, 513 (S.D.N.Y. 1997).

However, "[w]here only general objections are filed, the party does not preserve de novo review, and the Court reviews for clear error." Pilgrim v. Luther, No. 01 Civ. 8995, 2007 U.S. Dist. LEXIS 7410, at *7 (S.D.N.Y. Jan. 24, 2007) (citing Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002); Stubbs v. de Simone, No. 04 Civ. 5755, 2005 U.S. Dist. LEXIS 22236, at *1 (S.D.N.Y. Sept. 30, 2005)); see also, Camardo v. General Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) ("It is improper for an objecting party to attempt to relitigate [its position] by submitting papers to a district court which are nothing more than a rehashing of the same arguments and positions taken in the original papers submitted to the Magistrate Judge."); Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). Parties filing objections to recommendations are required to "'pinpoint' specific portions of the report and recommendations to which [they have] objected . . . ." Camardo, 806 F. Supp. at 382.

b. Objections Raised

The Court has discerned four specific objections raised by Foster to the Magistrate Judge's R&R. Foster complains: (1) that Magistrate Judge Francis "completely [overlooked] a clear constitutional violation when the prosecution made comments on the failure of the defendant to testify;" (2) that Magistrate Judge Francis "fail[ed] to assess the double standards under which petitioner feels the Criminal Justice System administers;" (3) that "the magistrate's conclusions are biased and slanted in favor of the people regardless of evidence to the contrary;" and

(4) that his rights were violated because the prosecutor had been asked to resign at some point ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.