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Mitchell v. Rivera


September 1, 2009


The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge


Varrell Mitchell, Sr. ("Petitioner") brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.)*fn1 By Report-Recommendation dated June 5, 2009, the Honorable Gustave J. DiBianco, United States Magistrate Judge, recommended that the Petition be denied and dismissed, and that a certificate of appealability not issue. (Dkt. No. 28.) Petitioner timely filed his Objections to the Report-Recommendation on June 16, 2009. (Dkt. No. 30.)*fn2 For the reasons discussed below, Magistrate Judge DiBianco's Report-Recommendation is accepted and adopted in its entirety, and Petitioner's Petition is denied and dismissed in its entirety.


A. Standard of Review

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).*fn3

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).*fn4 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).

B. Standard Governing Review of Petitioner's Habeas Petition

Magistrate Judge DiBianco correctly recited the legal standard governing review of Petitioner's habeas petition. (Dkt. No. 28, at 12-23.) As a result, this standard is incorporated by reference in this Decision and Order.


For the sake of brevity, the Court will not repeat the factual background of Petitioner's June 2003 conviction for Second Degree Assault, First Degree Reckless Endangerment, and Endangering the Welfare of a Child, because Petitioner's Petition does not pertain to the merits of his conviction. Instead, Petitioner's Petition raises a Speedy Trial claim, whereby Petitioner asserts that his right to a speedy appeal from his June 2003 conviction has been denied. (See Dkt. No. 28.)

More specifically, Petitioner raises four claims in support of his request for habeas relief.*fn5

In his Report-Recommendation, Magistrate Judge DiBianco recommends that the Court deny each of these four claims. (Id. at 12-23.) In his Objections to Magistrate Judge DiBianco's Report-Recommendation, Petitioner argues that Magistrate Judge DiBianco improperly "decided the issues on the merits without a full and complete record." (Dkt. No. 30.) Petitioner argues that, if Judge DiBianco had the entire record before him, he would not have ruled that Petitioner was responsible for the almost four-year delay in Petitioner perfecting his appeal of his conviction. (Id.)*fn6

For the sake of brevity, the Court will assume that Petitioner has made sufficiently specific objections to each of the recommendations in Magistrate Judge DiBianco's Report-Recommendation, and will therefore subject that Report-Recommendation to a de novo review.

After carefully reviewing all of the papers in this action, including Magistrate Judge DiBianco's Report-Recommendation and Plaintiff's Objections thereto, the Court agrees with each of the recommendations made by Magistrate Judge DiBianco, and rejects each of Plaintiff's Objections thereto. (Dkt. Nos. 28, 30, 31.) Magistrate Judge DiBianco employed the proper legal standards, accurately recited the facts, and correctly applied the law to those facts. (Dkt. No. 28, at 12-23.) As a result, the Court accepts and adopts Magistrate Judge DiBianco's Report-Recommendation in its entirety for the reasons stated therein. The Court would add only two points.

First, as indicated in footnote 3 of this Decision and Order, a district court need not consider evidence introduced for the first time in a party's objections to a Magistrate Judge's Report-Recommendation. Therefore, to the extent that Petitioner attempts to introduce new evidence in his Objections (in the form of explanations about evidence that Magistrate Judge DiBianco found to be unavailable), the Court declines to consider such evidence because the information was clearly available to Petitioner prior to the time that Respondent filed its Supplemental Memorandum of Law in Opposition to Petitioner's Amended Petition.

Second, even if the Court were to consider such new evidence, the Court's ultimate conclusions would not change. This is because, contrary to Petitioner's assertions, he has yet to perfect his appeal. Petitioner acknowledges that his "initial pleadings [provided to the Appellate Court in November 2005] were defective[.]" (Dkt. 31.) He argues that "those defects were cured on December 28, 2005." (Id.) However, this argument is unpersuasive.

On or around November 2, 2005, Petitioner submitted an Appendix to his appeal brief to Respondents. (Dkt. No. 22.) According to Petitioner, Appellees failed to respond in any way to this Appendix within the required ten-day time frame. (Dkt. No. 22.) On or around November 14, 2005, Petitioner filed his appeal brief with the Appellate Division. (Dkt. No. 22.) On December 19, 2005, Petitioner's brief was rejected by the Appellate Division "due to an inadequate appendix." (Dkt. No. 22.) In response, on December 28, 2005, Petitioner submitted an Amended Brief to the Appellate Division. (Dkt. No. 28.) In filing this Amended Brief, Petitioner informed the Appellate Division that "Appellant 'is not' using the appendix method, and has therefore deleted all references to the letter 'A.'" (Dkt. No. 30.) Petitioner claims that his Amended Brief was accepted for filing, and that Appellees failed to respond to this brief by the deadline of February 6, 2007. (Dkt. No. 22.) However, as explained by the District Attorney's office in their letter to Petitioner dated March 15, 2006, Appellees did not consent to Petitioner's proposed Appendix because it included records of court proceedings unrelated to the appeal. (Dkt. No. 26.) In addition, as explained by Magistrate Judge DiBianco in his Report-Recommendation, "[t]he fact that the Appellate Division has found it unnecessary to take any further action after Petitioner's attempt to perfect the appeal and settle the record [on December 28, 2005] is indicative of the lack of a properly perfected appeal." (Dkt. No. 28, at 20.)*fn7

Because is it Petitioner's responsibility to perfect his appeal and settle the record in any appeal, it cannot be said that Appellees' refusal to respond to a brief that has not been accepted by the Appellate Division amounts to anyone other than Petitioner being responsible for the delay in the Appellate Division's consideration of Petitioner's appeal.


ORDERED that Magistrate Judge DiBianco's Report-Recommendation (Dkt. No. 28) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that the Amended Petition (Dkt. No. 1) in this matter is DENIED and DISMISSED; and it is further

ORDERED that a certificate of appealability not issue with respect to any of the claims set forth in the petition as Petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2).

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