The opinion of the court was delivered by: Gary L. Sharpe United States District Judge
Petitioner Charles W. Toland filed a pro se petition in this District seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on July 6, 2004. Dkt. No. 1. In his pleading, Toland alleged that: i) he was wrongfully denied his right to appear before the grand jury that indicted him; ii) he received the ineffective assistance of counsel during the criminal proceedings below; iii) the evidence adduced at trial was insufficient to support the jury's verdict; iv) the trial court erred in denying post-trial motions he filed without any hearing; v) the testimony of a prosecution witness was incredible as a matter of law; vi) the County Court erred in allowing portions of an audio tape recording into evidence; vii) the trial court wrongfully denied defense counsel's motion for a mistrial; viii) the County Court abused its discretion when it converted a motion Toland filed pursuant to § 330.30 of New York's Criminal Procedure Law ("CPL") into a CPL § 440.10 motion; ix) the prosecutor engaged in misconduct in the criminal matter below; x) the jury charge delivered by the trial judge was flawed; and xi) the prosecutor improperly bolstered the testimony of one of his witness during summation. Petition at ¶ 12. Toland thereafter filed a memorandum of law in support of his habeas application. Dkt. No. 10.
Toland's in forma pauperis application was granted by United States Magistrate Judge David E. Peebles, Dkt. No. 3,*fn1 and the Attorney General for the State of New York, acting on respondent's behalf, filed a memorandum of law in opposition to Toland's application on March 2, 2005. Dkt. No. 21. On June 10, 2005, Toland filed, with the Court's permission, a "traverse" in further support of his habeas petition. Dkt. No. 30 ("Traverse"). On January 4, 2008, this Court issued a Memorandum-Decision and Order which denied and dismissed Toland's habeas petition in all respects. Dkt. No. 33 ("MDO").Toland thereafter filed: a) a motion in which he seeks reconsideration of the MDO, see Dkt. No. 37 ("Motion for Reconsideration"); and b) a request for a Certificate of Appealability (Dkt. No. 40), both of which are currently before this Court for review.
A. Standard of Review Regarding Motions for Reconsideration
As Senior Judge Thomas J. McAvoy recently observed, the burden on a party seeking reconsideration of an order is substantial; the application will "'generally be denied unless the moving party can point to controlling decisions or data that the court overlooked -- matters, in other words, that might reasonably be expected to alter the conclusion reached by the court.'" Butler v. Baker, No. 06-CV-0893, 2008 WL 351663, at *1 (N.D.N.Y. Feb. 7, 2008) (quoting Shrader v. CSX Transp., Inc., 70 F.3d 255 (2d Cir. 1995)); see also Colon v. Sawyer, No. 9:03CV1018, 2007 WL 4440930, at *1 (N.D.N.Y. Dec. 17, 2007) (Kahn, J.). A motion for reconsideration may only be granted upon where the movant establishes the existence of one of three factors: 1) an intervening change in law; 2) the availability of evidence not previously available; or 3) the need to correct a clear error of law or prevent manifest injustice. Shannon v. Verizon New York, Inc., 519 F.Supp.2d 304, 307 (N.D.N.Y. 2007) (Kahn, J.) (citation omitted).
B. Review of Toland's Application
Toland initially argues that reconsideration of the MDO is necessary because Magistrate Judge Peebles, to whom this action had been referred, did not issue a Report and Recommendation addressing the substance of Toland's petition, and instead this Court issued a Memorandum-Decision and Order which addressed the merits of petitioner's application without the benefit of any Report-Recommendation. See Motion for Reconsideration at p. 1. Toland contends that the foregoing not only deprived him of the opportunity to file objections to a Report-Recommendation, but also that the vacatur of the reference to the Magistrate Judge was contrary to the legislative history of 28 U.S.C. § 636, which Toland suggests stands for the proposition that once an order has been issued which has referred a case to a Magistrate Judge under that section, such reference should only be vacated in rare circumstances where good cause for the vacatur has been shown. See Motion for Reconsideration at pp. 2-3.
28 U.S.C. § 636 provides, in salient part:
(b)(1) Notwithstanding any provision of law to the contrary-- * * * * *
(B) a judge may ... designate a magistrate judge to... submit to a judge of the court proposed findings of fact and recommendations for the disposition, by a judge of the court, of ... applications for posttrial relief made by individuals convicted of criminal offenses ...
(C) the magistrate judge shall file his proposed findings and recommendations under subparagraph (B) with the court and a copy shall forthwith be mailed to all parties.
Within ten days after being served with a copy, any party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the ...