The opinion of the court was delivered by: Richard J. Sullivan, District Judge
Pro se petitioner James McCoy ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his May 21, 1996 conviction in the Supreme Court of the State of New York, Rockland County. On October 25, 2006, the Honorable Ronald L. Ellis, Magistrate Judge, issued a Report & Recommendation ("Report") denying the petition in its entirety. For the reasons that follow, the Court rejects Petitioner's objections and adopts the Report in its entirety.
On May 21, 1996, Petitioner was convicted in the Supreme Court of the State of New York, Rockland County, of four counts of murder in the second degree; robbery in the first degree; burglary in the first degree; two counts of attempted sexual abuse in the first degree; and grand larceny in the fourth degree. Petitioner was sentenced to a term of imprisonment that included both consecutive and concurrent indeterminate sentences, totaling a period of forty-one and one-half years to life. He is currently serving that term at Shawangunk Correctional Facility in Wallkill, New York.
On August 26, 2003, Petitioner filed his amended petition. He asserts in his amended petition that his conviction in state court violated his rights to: (1) be free from unlawful seizures under the Fourth Amendment; (2) be free from unlawful searches under the Fourth Amendment; (3) have scientifically reliable evidence presented pursuant to Frye v. United States, 293 F. 1013 (1923); (4) have legally sufficient evidence establish his guilt beyond a reasonable doubt for the attempted sexual abuse charges; (5) have legally sufficient evidence establish his guilt beyond a reasonable doubt; (6) a fair trial; (7) disclosure of exculpatory materials under Brady v. Maryland, 373 U.S. 83 (1967); and (8) disclosure of exculpatory materials under the Fourteenth Amendment. The amended petition was referred to the Honorable Ronald L. Ellis, Magistrate Judge, for review. On October 25, 2006, Judge Ellis issued the Report, recommending that the amended petition be denied. Judge Ellis gave the parties ten days to file objections to the Report and warned that the failure to file timely objections would constitute a waiver of those objections in both the District Court and on appeal to the United States Court of Appeals. (See Report at 17-18.) On November 1, 2006, Petitioner submitted a letter to the Court requesting an additional forty-five days to file his objections. (See Petitioner's November 1, 2006 Letter.) On November 10, 2006, the Honorable Kenneth M. Karas, District Judge, granted the request and gave Petitioner until December 31, 2006, to file any objections to the Report. (See id.)
The case was reassigned to the undersigned from Judge Karas on September 4, 2007. On October 24, 2007, the Court issued an order adopting the Report in its entirety after reviewing the Report for clear error only, stating that no objections to the Report had been filed by Petitioner. On November 5, 2007, the Court received a letter from Petitioner indicating that he had, in fact, submitted objections to the Report in a timely fashion, as demonstrated by a copy of a certified mail receipt indicating that he had mailed the objections to Judge Karas on December 26, 2006. Accordingly, on November 6, 2007, the Court vacated the October 24, 2007 Order and the case was reopened. Thus, Petitioner's objections are deemed timely filed, though that fact is not reflected on the docket sheet, and this memorandum and order follows.
A court may accept, reject, or modify, in whole or in part, the findings or recommendations made by a magistrate judge. Fed. R. Civ. P. 72(b); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). A court may accept those portions of a report to which no specific, written objection is made, as long as the factual and legal bases supporting the findings are not clearly erroneous. See Greene v. WCI Holdings Corp.,956 F. Supp. 509, 513 (S.D.N.Y. 1997) (citing Fed. R. Civ. P. 72(b) and Thomas v. Arn, 474 U.S. 140, 149 (1985)). To the extent that a party makes specific objections to a magistrate's findings, the court must undertake a de novo review of Petitioner's objections. See 28 U.S.C. § 636(b)(1); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Pro se filings are generally accorded leniency; however, where the objections are "conclusory or general," or where the Petitioner "simply reiterates his original arguments," the Report should be reviewed only for clear error. Walker v. Vaughan, 216 F. Supp. 2d 290, 292 (S.D.N.Y. 2002) (quoting Barratt v. Joie, No. 96 Civ. 0324 (LTS) (THK), 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002) (citations omitted)); accord Cartagena v. Connelly, No. 06 Civ. 2047 (LTS) (GWG), 2008 WL 2169659, at *1 (S.D.N.Y. May 23, 2008).
Petitioner asserts seven objections to the Report. Two of Petitioner's objections - his claim relating to the type of DNA test used and his claim for ineffective assistance of counsel - are barred because they assert new arguments that were not raised in the amended petition. See Chisolm v. Headley, 58 F. Supp. 2d 281, 284 n.2 (S.D.N.Y. 1999) ("[A] petitioner is not permitted to raise an objection to a magistrate judge's report that was not raised in his original petition.") (citing Harris v. Pulley, 885 F.2d 1354, 1377-78 (9th Cir. 1989)); see also Lloyd v. Artus, No. 06 Civ. 3888 (JSR), 2008 WL 892396, at *1 (S.D.N.Y.. Apr. 1, 2008); Riggi v. United States, No. 04 Civ. 7852 (JSR), 2007 WL 2245595, at *1 (S.D.N.Y. Aug. 6, 2007) ("Because petitioner failed to raise this issue in his original petition, however, he cannot do so now for the first time in an objection to the Report."). None of Petitioner's remaining objections specifically address Judge Ellis's findings or make objections to the Report itself with any specificity. Rather, Petitioner has simply reiterated arguments previously presented in his amended petition or in the state courts. Accordingly, the Court will review the Report for clear error with respect to these remaining objections.*fn1
Petitioner asserts two distinct arguments relating to the DNA testing procedures at trial. First, Petitioner argues that his constitutional right to due process was violated when the trial court refused to exclude the results of DNA testing on the grounds that one step in the DNA testing process, the "product verification gel" process, was not used. (Pet.'s Objs. at 1-5; 29-32.) Because the Court finds that Petitioner has merely repeated his original argument that the trial court erred in admitting the DNA evidence, the Court will apply the clear error standard. Under that standard, the Court finds that Judge Ellis did not err in finding no error in the state courts' rejection of Petitioner's claim on appeal. Specifically, Judge Ellis found that New York State uses the test articulated in Frye v. United States, 293 F. 1013 (1923) to determine the reliability of scientific evidence. (See Report at 13.) Judge Ellis pointed out that, at the Frye hearing conducted by the trial court, the trial court found that the product verification gel step was only recommended, and not mandatory. (Id. (citing Frye Hr'g Tr. at 103-04).) Judge Ellis found that the trial court's determinations of fact on this issue were not unreasonable, and thus that the evidence was properly admitted. (Id. at 13-14.) Judge Ellis further noted that the Appellate Division also found that the evidence presented against Petitioner was legally sufficient to affirm the conviction. (Id. at 14.) The Court finds no clear error in these findings and thus adopts this portion of the Report.
Second, Petitioner contends that Judge Ellis failed to address the fact that "the test kit used (Amplitype Polymarker Test) in the case at bar had not been sufficiently validated to be consider[e]d as generally accepted." (Id. at 1.) The Court notes that Petitioner did not raise this argument in the amended Petition, nor did Judge Ellis consider it in the Report. Accordingly, this argument is barred. See ...