The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
This pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 was referred to the Hon. Randolph F. Treece, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.4. Magistrate Judge Treece's Report-Recommendation and Order recommends that the petition be denied and that no certificate of appealability be issued. See Rep. Rec. & Order [dkt. # 12]. Petitioner Gregory Jackson has filed objections to the Report-Recommendation and Order. See Obj. [dkt. # 14].
When objections to a magistrate judge's report and recommendation are lodged, the district 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). General or conclusory objections, or objections which merely recite the same arguments presented to the magistrate judge, are reviewed for clear error. Farid v. Bouey, 554 F. Supp. 2d 301, 306 n.2 (N.D.N.Y. 2008); see Frankel v. N.Y.C., 2009 WL 465645 at *2 (S.D.N.Y. Feb. 25, 2009).*fn1 After reviewing the report and recommendation, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1)(C).
Petitioner's general objection "to each and every aspect of the Report and Recommendation" is reviewed for clear error. The Court finds no clear error in Magistrate Judge Treece's report relative to Petitioner's challenge to the sufficiency and weight of the evidence, Rep. Rec. pp. 6-10, and to the claim alleging that Petitioner was subjected to an unconstitutionally harsh and excessive sentence. Rep. Rec. pp. 10-12. Therefore, the Court adopts the recommendation relative to these issues.
Petitioner has filed specific objections relative to his ineffective assistance of counsel claims. In this regard, he argues that he has stated cognizable ineffective assistance of counsel claims because trial counsel (1) failed to conduct adequate pre-trial investigation of the fingerprint evidence, and (2) failed to consult or retain a "fingerprint expert" to counter the prosecution's fingerprint evidence. Petitioner argues that Magistrate Judge Treece erred in recommending that these ineffective assistance of counsel claims be dismissed because they fail under the second prong of the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). The Court reviews these claims de novo.
The New York State Supreme Court, Appellate Division, Third Department, affirmed petitioner's conviction and sentence on direct review, and the New York State Court of Appeals denied Petitioner leave to appeal. See People v. Jackson, 25 A.D.3d 1012 (3rd Dept), lv. denied, 6 N.Y.3d 849 (2006). In affirming the conviction, the Appellate Division rejected Petitioner's ineffective assistance of counsel argument, writing:
Finally, we turn to defendant's motion pursuant to CPL 440.10 and his contention that he did not receive the effective assistance of counsel. Since the alleged errors by counsel are not dependent upon non-record facts, Supreme Court properly decided the motion without a hearing (see People v Satterfield, 66 NY2d 796, 799 ). Defendant contends that his attorney should have requested a pretrial hearing regarding the admissibility of the fingerprint evidence and obtained the services of a forensic expert to assist the defense. No viable basis has been shown for precluding the fingerprint evidence and the decision regarding an expert does not rise to the level of ineffective assistance under the circumstances of this case (see People v Jurgensen, 288 AD2d 937, 938 , lv denied 97 NY2d 684 ). Counsel pursued a strategy of attempting to discredit the fingerprint evidence through cross-examination and producing as a witness for the defense a neighbor who reported to police a person in the vicinity of the burglary who clearly did not fit defendant's description. "Hindsight disagreement with trial strategy or losing tactics must not be confused with true ineffectiveness of counsel" (People v Demetsenare, 14 AD3d 792, 793  [citation omitted]). Upon review of this record, it is apparent that defendant received the requisite meaningful representation (see People v Henry, 95 NY2d 563, 565-566 ).
People v. Jackson, 25 A.D.3d at 1015.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a writ of habeas corpus shall not issue with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication (1) was contrary to or involved an unreasonable application of clearly established federal law, as determined by the United States Supreme Court; or (2) was based on an unreasonable determination of the facts in light of the evidence presented. 28 U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 405 (2000); Rosario v. Ercole, 601 F.3d 118, 122 (2d Cir. 2010); Carrion v. Smith, 549 F.3d 583, 588 (2d Cir. 2008).
A state court decision is "contrary to" clearly established federal law if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision involves an unreasonable application of Supreme Court precedent when the state court either identifies the correct governing legal rule from the Supreme Court's cases but unreasonably applies it to the facts of the case, or unreasonably extends a legal principle from [the Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply. Id. at 407. The unreasonable application clause requires the state court decision to be more than incorrect or erroneous; it must be objectively unreasonable. Yarborough v. Alvarado, 541 U.S. 652, 663-64 (2004); Lockyer v. Andrade, 538 U.S. 63, 75 (2003). With respect to factual determinations made by the state courts, this Court must apply a presumption of correctness, and Petitioner bears the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. 2254(e)(1); Leka v. Portuondo, 257 F.3d 89, 98(2d Cir. 2001); see Whitaker v. Meachum, 123 F.3d 714, 715 n.1 (2d Cir. 1997) (deference will be given to factual findings by both state trial and appellate courts).
Under the clearly established federal law set forth in Strickland v. Washington, to prevail on a claim of constitutionally ineffective assistance of counsel a petitioner must demonstrate that: "(1) counsel's representation fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different." United ...