SUPPLEMENTAL REPORT AND RECOMMENDATION
On July 31, 2007, this Court issued a Report and Recommendation (Docket No. 26) recommending that Deshard Wright's Amended Petition for habeas corpus relief be conditionally granted based upon a violation of his due process rights. Respondent filed Objections to the Report and Recommendation on September 20, 2007. (Docket No. 29). Respondent asserted several arguments in his Objections regarding the merits of Petitioner's due process claim that were not previously raised before this Court.
On March 18, 2008, the Honorable Gary L. Sharpe, United States District Judge, issued an Order referring the matter to this Court for a supplemental or amended Report and Recommendation addressing the issues advanced by Respondent for the first time in his Objections. (Docket No. 30).
This Supplemental Report and Recommendation is submitted in response to the District Court's Order and, combined with the previously filed Report and Recommendation, constitutes this Court's analysis and recommendation regarding the issues presented in this case.
Familiarity with this Court's Report and Recommendation is presumed. The facts and procedural background may briefly be summarized as follows: On or about November 2, 1995, Robert Crouse, a white teenager, was shot and killed in Utica, New York. Petitioner, an African-American man, was charged with the murder.
At the subsequent trial of Petitioner, the defense's theory of the
case was that Petitioner was not the shooter, but that Crouse was
murdered by one of Petitioner's companions, Jamie Thompson.*fn1
This defense was based, inter alia, upon the statements
provided to the police by two eyewitnesses shortly after the shooting
(including a positive photo array identification of Thompson as the
shooter), as well as the fact that Crouse's bicycle was found in
Thompson's home and a black knit cap matching a description by the
eyewitnesses had been found during a search of Thompson's
Petitioner's trial counsel also attempted to support the defense by offering testimony from two additional witnesses, Reggie Leggett and Ezekiel McClain. According to counsel's offer of proof, Leggett, an inmate in the Oneida County Jail, was prepared to testify that Jamie Thompson confessed to shooting Crouse. McClain, another inmate, would have testified that he overheard the conversation between Thompson and Leggett. The trial court refused to allow the testimony of either Leggett or McClain, ruling that their testimony was hearsay. Defense counsel argued that the testimony was admissible as a declaration against penal interest, but the trial court rejected that argument because Petitioner had not shown that Jamie Thompson was "unavailable" to testify, as required for that exception to apply under New York's hearsay rule. Petitioner's trial counsel noted an exception to the trial court's ruling and further stated that the ruling resulted in "unfairness" to his client. Petitioner was ultimately convicted on all charges, including the murder of Robert Crouse.
B. State Court Determination of Due Process Claim
On direct appeal, Petitioner argued, inter alia, that the trial court's exclusion of the testimony of Leggett and McClain was erroneous as a matter of state law and, in the alternative, that, notwithstanding any hearsay issue, the exclusion of the exculpatory testimony violated his due process right to a fundamentally fair trial, as recognized by the United States Supreme Court in Chambers v. Mississippi, 410 U.S. 284, 294 (1973).
The Appellate Division, Fourth Department affirmed the conviction, finding that Petitioner had failed to preserve the hearsay issue for appeal and, in any event, had not demonstrated that the testimony was admissible under the "declaration against penal interest" hearsay exception. People v.Wright, 703 N.Y.S.2d 782 (4th Dep't 2000). Additionally, the New York Court of Appeals denied Petitioner the right to appeal. In its opinion, the Appellate Division did not mention Petitioner's due process claim and did not cite or discuss Chambers.
C. Petition for Habeas Relief and Respondent's Initial Opposition
Petitioner, acting pro se, commenced this case on April 11, 2002, by filing a Petition for habeas corpus relief. (Docket No. 1). Petitioner filed an Amended Petition on May 24, 2002. (Docket No. 6). The Amended Petition raises several claims, all of which were reviewed and analyzed in this Court's Report and Recommendation.*fn3 Respondent's Objections only related to this Court's determination with regard to Petitioner's first claim. Accordingly, for purposes of this Supplemental Report and Recommendation, the only claim at issue is the first claim for relief, in which Petitioner asserts that he was deprived of his due process right to a fundamentally fair trial when the trial court refused to permit the jury to hear and consider the exculpatory testimony of Leggett and McClain.*fn4
In his initial opposition to the Amended Petition, Respondent offered a single argument in opposition to Petitioner's due process claim, namely, that the claim was procedurally barred. Specifically, Respondent relied exclusively upon the Appellate Division's finding that the hearsay claim had not been preserved for their review and argued that the state court's finding as to that issue constituted an adequate and independent state law ground barring federal habeas review of the due process claim.
Significantly, Respondent's argument in opposition to Petitioner's due process claim consisted solely of a general discussion regarding procedurally barred claims, without any citations to the trial record or arguments related to the merits of the claim. (Respondent's Memorandum of Law, Docket No. 11, at p. 10-15).
D. Report and Recommendation
In the Report and Recommendation filed on July 31, 2007, this Court found that Petitioner's due process rights were violated by the exclusion of the exculpatory testimony of Leggett and McClain. As noted above, familiarity with that Report and Recommendation, which is briefly summarized herein, is presumed.
In sum, this Court found that Petitioner's due process claim was not procedurally barred because his trial counsel, as discussed extensively in the Report and Recommendation, substantially complied with the applicable state procedural rule and, as such, the procedural bar asserted by the state court did not preclude federal habeas review.
Turning to the merits of the due process claim, this Court concluded that while the testimony of Leggett and McClain might have been technically inadmissible hearsay under New York law, the state courts erred by failing to consider whether the testimony should nevertheless have been admitted under the standard articulated by the Supreme Court in Chambers.
To wit, the testimony in question was of extreme probative value and had substantial indicia of reliability, as there were no incentives or rewards available to Leggett or McClain and no apparent motive on the part of either man to falsify their testimony by offering to testify on behalf of Petitioner . Accordingly, constitutional due process, as defined by the United States Supreme Court in Chambers, demanded that the defense be allowed to present the testimony even if it was otherwise inadmissible under a rigid or mechanistic application of New York's hearsay rule. As such, this Court concluded that habeas relief was warranted because the Appellate Division's decision, which did not cite Chambers or even discuss the fundamental constitutional right to due process, was contrary to clearly established federal law, as determined by the Supreme Court of the United States.
On September 20, 2007, Respondent filed Objections to this Court's Report and Recommendation. (Docket No. 29). Respondent raises two main objections to this Court's findings. First, Respondent contends that this Court erred when it concluded that Petitioner's due process claim was not procedurally barred. Second, Respondent argues that, in any event, the due process claim fails on its merits because Petitioner cannot establish that the exclusion of the exculpatory testimony deprived him of a fundamentally fair trial.
As noted in the March 18, 2008 Order, the arguments offered by Respondent concerning the merits of the due process claim were raised for the first time in the Objections to the Report and Recommendation. Prior to filing the Objections, Respondent had relied solely on the procedural bar argument, electing not to address the substance of Petitioner's due process claim.
For the reasons outlined below, this Court recommends, as a threshold matter, that the newly raised arguments not be considered by the District Court.*fn5 However, even if the District Court is inclined to permit Respondent to raise arguments for the first time in Objections, the Court recommends rejecting those arguments because the Appellate Division's decision was contrary to clearly established federal law, as determined by the Supreme Court of the United States.
A. Respondent's Newly Raised Arguments Should Not be Considered.
As with virtually all habeas corpus petitions filed in the federal district courts located in New York, Respondent is represented by the Office of the Attorney General of the State of New York.*fn6
There can be no doubt that the Attorney General's Office is well aware of the long standing and well-established rule applied by courts throughout this Circuit that, on de novo review, the district court will ordinarily refuse to consider arguments, case law and/or evidentiary materialthat could have been, but were not, presented to the Magistrate Judge in the first instance. See, e.g., Torres v. Burge, 01-CV-1337(GLS/VEB), 2007 WL 625982, at *6 (N.D.N.Y. Feb. 23, 2007); Booth Oil Site Administrative Group v. Safety-Kleen Corp., 532 F.Supp.2d 477, 522 (W.D.N.Y. 2007); Crown Heights Jewish Community Council, Inc. v. Fischer, 63 F.Supp.2d 231, 235 (E.D.N.Y. 1999); Baker v. Ace Advertisers' Service, Inc., 153 F.R.D. 38, 43 (S.D.N.Y.1992).
The reason for this rule is simple and straightforward -- allowing parties to raise new arguments in Objections to a Report and Recommendation "unduly undermine[s] the authority of the Magistrate Judge by allowing litigants the option of waiting until a Report is issued to advance additional arguments." Edwards v. Fischer, 414 F. Supp. 2d 342, 352 (S.D.N.Y. 2006) (quoting Abu-Nassar v. Elders Futures, Inc, 1994 WL 445638, at *5 n. 2 (S.D.N.Y. Aug. 17, 1994)); see also Nolasco v. United States, 358 F.Supp.2d 224, 231 (S.D.N.Y. 2004) ("A party may not raise an objection to an issue it never brought before the Magistrate Judge."); Galvin v. Kelly, 79 F.Supp.2d 265, 267 (W.D.N.Y. 2000) ("The objecting party . . . may not raise arguments not priorly submitted for the magistrate judge's consideration."); Henrietta D. v. Giuliani, No. 95 CV 0641, 2001 WL 1602114, at *3 (E.D.N.Y. Dec. 11, 2001) ("An objecting party may not raise new arguments that were not made before the Magistrate Judge.").
The important policy underlying this rule has been succinctly summarized as follows: Systemic efficiencies would be frustrated and the magistrate's role reduced to that of a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knock-out punch for the second round. In addition, it would be fundamentally unfair to permit a litigant to set its case in motion before the magistrate, wait to see which way the wind was blowing, and-having received an unfavorable recommendation-shift gears before the district judge.
Glover v. New York City Transit Authority, No. 03 CV 1140, 2006 WL 3083495, at *1 (E.D.N.Y. Oct. 20, 2006) (quoting Paterson-Leitch Co. v. Massachusetts Mun. Wholesale ...