The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
Jorge Martinez ("Petitioner") brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) By Report-Recommendation dated December 30, 2008, the Honorable David E. Peebles, United States Magistrate Judge, recommended that the Petition be denied and dismissed, and that a certificate of appealability not issue. (Dkt. No. 59.) Petitioner timely filed his Objections to the Report-Recommendation on February 9, 2009. (Dkt. No. 61.) For the reasons discussed below, Magistrate Judge Peebles' Report-Recommendation is accepted and adopted in its entirety, and Petitioner's Petition is denied and dismissed in its entirety.
When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).*fn1
When only general objections are made to a magistrate judge's report-recommendation (or the objecting party merely repeats the allegations of his pleading), the Court reviews for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir. 1999).*fn2 Similarly, when a party makes no objection to a portion of a report-recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducting the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).
For the sake of brevity, the Court will not repeat the factual background of Petitioner's January 2001 conviction for second degree burglary and fifth degree criminal possession of stolen property, or of his February 2001 sentence, but will simply refer the parties to the relevant portions of Magistrate Judge Peebles's Report-Recommendation, which accurately recite that factual background. (Dkt. No. 59, at 2-10.)
In his Petition, Petitioner asserts eight claims in support of his request for habeas relief.*fn3
In his Report-Recommendation, Magistrate Judge Peebles recommends that the Court deny each of these eight claims. (Id. at 13-29.) In his Objections to Magistrate Judge Peebles's Report-Recommendation, Petitioner refashions five of his arguments, which were already addressed (and rejected) in Magistrate Judge Peebles's Report-Recommendation. (Dkt. No. 61.) Petitioner's five arguments are as follows.
First, Petitioner argues that, because New York State has created the right to testify before the grand jury, that right cannot be forfeited in a manner that is arbitrary and capricious, and any deprivation of that right must conform to the requirements of the Due Process Clause.
Second, in a similar vein, Petitioner argues that, because his attorney notified the district attorney of Petitioner's desire to testify before the grand jury, depriving him of the right to so testify was arbitrary and capricious, and his appellate counsel's failure to complain of that deprivation on appeal constitutes ineffective assistance of counsel.
Third, Petitioner argues that there was a lack of probable cause for a magistrate to issue a second search warrant permitting authorities to search Petitioner's residence for a second time. At trial, Petitioner moved to suppress the evidence that was gathered during a search of his residence under the second warrant. Petitioner argues that, because the trial court denied the motion to suppress this evidence without making explicit findings on the matters essential to his Fourth Amendment claim, this Court may consider the merits of the state court's determination of his Fourth Amendment claim. Petitioner further argues that, in considering the merits, the Court must conclude that the evidence should have been suppressed.
Fourth, Petitioner argues that his bolstering claim raised questions of federal law, and therefore was preserved for this Court's consideration. Petitioner further argues that, because the testimony of Officers Janso and Grube, which bolstered the identifying witness's testimony, was critical to his conviction, Petitioner's trial counsel was ineffective in failing to object to the officers' testimony.
Finally, based on the arguments detailed above, Petitioner "strongly believes [that] he has made a substantial showing of a denial of a constitutional right with respect to (i) evidence seized pursuant to the second search warrant, and (ii) "Improper Bolstering evidence." As a result, Petitioner argues that the ...