The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
William Richardson ("Petitioner") filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on November 14, 2005. (Dkt. No. 1.) By Report-Recommendation dated September 22, 2009, the Honorable George H. Lowe, United States Magistrate Judge, recommended that the Petition be denied and dismissed, and that a certificate of appealability not issue. (Dkt. No. 26.) Petitioner timely filed his Objection to the Report-Recommendation on October 9, 2009. (Dkt. No. 27.) 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
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). 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). 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 Lowe correctly recited the legal standard governing review of Petitioner's habeas petition. (Report-Recommendation at Part II.A., attached at Dkt. No. 26, at 4-6.) As a result, this standard is incorporated by reference in this Decision and Order, which is intended primarily for review by the parties.
For the sake of brevity, the Court will not repeat the factual background of Petitioner's June 2002 conviction for burglary, assault, criminal possession and use of a weapon, and reckless endangerment, but will simply refer the parties to the relevant portions of Magistrate Judge Lowe's Report-Recommendation, which accurately recites that factual background. (Dkt. No. 26 at 2-4.)
In his Petition and Traverse, Petitioner claims that his conviction was improper for the following three reasons: (1) certain physical evidence--i.e., his clothing--was illegally obtained, and therefore improperly introduced at trial; (2) the admission of the victim's in-court identification of Petitioner was improper because there was no independent basis to support the victim's in-court identification; and (3) the prosecutor committed misconduct by invoking God during his summation and repeatedly accusing Petitioner of lying. (Dkt. No. 1, at 5-6; Dkt. No. 15, at 4-21.)
B. Magistrate Judge Lowe's Report-Recommendation
In his Report-Recommendation, Magistrate Judge Lowe recommends dismissal of Petitioner's first claim because (1) "New York State has provided an opportunity for criminal defendants to fully and fairly litigate Fourth Amendment claims," see CPL § 710, and (2) "Petitioner availed himself of that procedure by making a motion to suppress" and by filing a subsequent appeal with the New York State Appellate Division (which was denied) after his motion was denied by the trial court. (Dkt. No. 26, at 6-9.)
Magistrate Judge Lowe recommends dismissal of Petitioner's second claim because (1) the circumstances surrounding the victim's pre-court identification of Petitioner were not unduly suggestive of Petitioner's guilt, and (2) regardless of any qualms that Petitioner may have with the line-up, the victim's in-court identification of Petitioner was properly ...