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Mella-Rodriguez v. Rock

October 22, 2010

RAFAEL MELLA-RODRIGUEZ, PETITIONER,
v.
DAVID ROCK, RESPONDENT.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM & ORDER

Pro Se Petitioner, Rafael Mella-Rodriguez ("Petitioner"), commenced this action on June 10, 2008, seeking a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On May 22, 2009, this Court referred the matter to Magistrate Judge Arlene R. Lindsay. On July 12, 2010, Judge Lindsay issued a Report & Recommendation ("R&R") recommending that the petition be dismissed in its entirety. For the reasons set forth herein, the Petition is DENIED.

BACKGROUND*fn1

Petitioner argues that the following grounds warrant habeas relief.

1. The petitioner was denied his constitutional right to a trial by jury by the trial judge's improper supplemental jury charge.

2. The trial court erred when it failed to suppress the evidence recovered from the search of the trunk of the Dodge Intrepid.

3. The petitioner was denied effective assistance of counsel when trial counsel failed to request the special circumstantial evidence charge and failed to object to the court's failure to give that charge.

4. The petitioner was denied his right to fair trial by the prosecutor's improper comments during summation.

5. The prosecution failed to prove the petitioner's guilt beyond a reasonable doubt. (See Pet. 1.)

In response, Respondent argues that the Petition should be denied because claims one, two, and four are either wholly or partly procedurally bared, and claims two, three, and five are without merit. (See Resp't Mem. 2)

DISCUSSION

I. Review of a Magistrate Report and Recommendation

"When evaluating the report and recommendation of a magistrate judge, the district court may adopt those portions of the report to which no objections have been made and which are not facially erroneous." Walker v. Vaughan, 216 F. Supp. 2d 290, 291 (S.D.N.Y. 2002) (citation omitted). However, if a party serves and files specific, written objections to a magistrate's report and recommendation within fourteen days of receiving the recommended disposition, see FED. R. CIV. P. 72(b), the district "court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72(b).

When a party raises an objection to a magistrate judge's report, "the court is required to conduct a de novo review of the contested sections." See Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). However, "[w]hen a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Barratt v. Police Officers William ...


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