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Mitchell v. Rivera

September 1, 2009

VARRELL MITCHELL, SR., PETITIONER,
v.
ISRAEL RIVERA, SUPERINTENDENT, COXSACKIE CORRECTIONAL FACILITY, RESPONDENT.



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

MEMORANDUM DECISION and ORDER

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.

I. APPLICABLE LEGAL STANDARDS

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.

II. DISCUSSION

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 ...


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