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Clarke v. Poole

September 8, 2009

NIGEL CLARKE, PETITIONER,
v.
THOMAS POOLE; AND ELIOT SPITZER, RESPONDENTS.



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

DECISION and ORDER

Nigel Clarke ("Petitioner") brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) By Report-Recommendation dated May 6, 2009, the Honorable Randolph F. Treece, United States Magistrate Judge, recommended that the Petition be denied and dismissed, and that a certificate of appealability not issue. (Dkt. No. 39.) Petitioner timely filed his Objections to the Report-Recommendation on June 26, 2009.*fn1 (Dkt. No. 41.) For the reasons discussed below, Magistrate Judge Treece'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).*fn2

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).*fn3 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 Treece correctly recited the legal standard governing review of Petitioner's habeas petition. (Dkt. No. 79, at 6-18.) 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 August 2000 conviction for intentional murder in the second degree and criminal possession of a weapon in the second degree, but will simply refer the parties to the relevant portions of Magistrate Judge Treece's Report-Recommendation, which accurately recite that factual background. (Dkt. No. 39, at 2-6.)

In his Petition, Petitioner asserts three claims in support of his request for habeas relief.*fn4

In his Report-Recommendation, Magistrate Judge Treece recommends that the Court deny each of these three claims. (Id. at 12-25.) In his Objections to Magistrate Judge Treece's Report-Recommendation, Petitioner argues that Magistrate Judge Treece incorrectly applied the applicable law to his claims. (Dkt. No. 41.) More specifically, Petitioner advances the following four arguments.

First, with regard to his claim that he was not provided with constitutionally sufficient notice of the charges against him, Petitioner argues that Magistrate Judge Treece erred in "blindly adher[ing] to the retroactivity decree promulgated by the New York Court of Appeals in Policano v. Herbert, 7 N.Y.3d 588, 589 (N.Y. 2006)." (Dkt. No. 41, at 2.) In particular, Petitioner argues that the state statute under which he was charged with depraved indifference had been wrongly interpreted when he was charged with this crime, as evidenced by New York v. Feingold,*fn5 and that it was improper for Magistrate Judge Treece to apply this "wrong" interpretation to Petitioner's Petition based on the fact that that was the law when Petitioner was convicted. (Id.)

Second, also with regard to his claim that he was not provided with constitutionally sufficient notice of the charges against him, Petitioner argues that, even assuming that Magistrate Judge Treece was correct in "deferr[ing] to a state court's interpretation of state law no matter how erroneous that interpretation may be," his decision is improper because he failed to indicate exactly "when" the depraved indifference law changed, as required by a federal court reviewing a habeas petition according to Fiore v. White, 531 U.S. 225 (2001). (Dkt. No. 41, at 12.) In particular, Petitioner argues that, because ...


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