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Howard v. Potter

October 7, 2009

THOMAS HOWARD, PETITIONER,
v.
RICHARD POTTER, ACTING SUPERINTENDENT, GREAT MEADOW CORRECTIONAL FACILITY, RESPONDENT.



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

DECISION and ORDER

Thomas Howard ("Petitioner") filed his Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 14, 2006. (Dkt. No. 1.) On June 2, 2008, Petitioner filed an Amended Petition. (Dkt. No. 24.) By Report-Recommendation dated August 31, 2009, the Honorable George H. Lowe, United States Magistrate Judge, recommended that the Amended Petition be denied and dismissed, and that a certificate of appealability not issue. (Dkt. No. 38.) On September 3, 3009, Great Meadow Correctional Facility Acting Superintendent Richard Potter ("Respondent") submitted a letter brief seeking adoption of the Report-Recommendation. (Dkt. No. 39.) On September 18, 2009, Petitioner filed his Objections to the Report-Recommendation. (Dkt. No. 40.) For the reasons discussed below, Petitioner's Objections are rejected; Magistrate Judge Lowe's Report-Recommendation is accepted and adopted in its entirety; Petitioner's Amended Petition is denied and dismissed in its entirety; and a certificate of appealability shall not issue.

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).*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).

B. Standard Governing Review of Petitioner's Amended Petition

Magistrate Judge Lowe correctly recites the legal standard governing review of Petitioner's amended habeas corpus petition. (Report-Recommendation at Part II.A., attached at Dkt. No. 38, at 5-7.) 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 2001 conviction for sodomy, attempted sodomy in the first degree, sexual abuse in the first degree, and endangering the welfare of a child, but will simply refer the parties to the relevant portions of Magistrate Judge Lowe's Report-Recommendation, which accurately recites that factual background. (Report-Recommendation at Part I, attached at Dkt. No. 38, at 1-5.)

In his Amended Petition and Traverse, Petitioner claims that his conviction was improper for the following three reasons: (1) the evidence at trial was insufficient to support his conviction; (2) the prosecutor improperly introduced evidence at trial of Petitioner's prior bad acts; and (3) appellate counsel was ineffective because he failed to bring attention to trial counsel's omission of an element in the jury charge. (Dkt. Nos. 24, 36.)

In his Report-Recommendation, Magistrate Judge Lowe recommends dismissal of Petitioner's first claim because (1) the evidence presented at trial would allow a trier a fact to find, beyond a reasonable doubt, that Petitioner was guilty of the charges presented, and (2) the Appellate Division did not act contrary to or unreasonably apply Supreme Court precedent in rejecting Petitioner's claim. (Report-Recommendation at Part II.B, attached at Dkt. No. 38, at 7-11.)

Magistrate Judge Lowe recommends dismissal of Petitioner's second claim because (1) Petitioner's admissible prior bad act was never discussed by the witness against whom the prior bad act was committed, (2) the Appellate Division's rejection of Petitioner's claim based on its finding that "The People did not . . . elicit [the prior bad acts] during the direct examination of the victim or at any time during the trial," is not contrary to or an unreasonable application of Supreme Court precedent, (3) Petitioner failed to exhaust his remedies with regard to his claim that evidence regarding "other bad acts/uncharged crime(s)" was improperly introduced at trial through the testimony of Detective Farrell, Dr. Hamill, and JLM, and (4) Petitioner has failed to show either that some objective external factor impeded his ability to comply with the relevant procedural rule, or that a fundamental miscarriage of justice will result from no federal review of his "other bad acts/uncharged crime(s)" claim. (Report-Recommendation at Part II.C., attached at Dkt. No. 38, at 11-15.)

Magistrate Judge Lowe recommends dismissal of Petitioner's third claim because (1) appellate counsel had no reason to argue for the inclusion of an element in the jury charge that was not required under the penal law, and (2) the Appellate Division did not act contrary to or unreasonably apply Supreme Court precedent in rejecting ...


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