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Johnny Mason v. George Duncan

June 23, 2011

JOHNNY MASON PETITIONER,
v.
GEORGE DUNCAN, RESPONDENT.



The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.:

OPINION & ORDER

I. Background

Petitioner Johnny Mason, a New York state prisoner currently incarcerated at the Great Meadow Correctional Facility, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (28 U.S.C. § 2254 Petition, June 14, 2002 ("Petition").) Mason seeks to set aside his September 23, 1998 conviction from the Supreme Court of the State of New York, New York County. (Supp. Mem. of Law in Support under 28 U.S.C. § 2254, Dec. 7, 2004 ("Mem.").) Mason pleaded guilty to grand larceny in the fourth degree, pursuant to N.Y. Penal Law § 155.30(5). (Id.) For the reasons stated in this Opinion and Order, the Court denies the writ of habeas corpus.

Mason was sentenced as a persistent felony offender ("PFO") under New York's PFO statute, N.Y. Panel Law § 70.10, to a term of fifteen years to life in prison.*fn1 (AppendiX Accompanying Supp. Mem. of Law in Support of Petition under 28 U.S.C. § 2254, Dec. 7, 2004 ("App").)

Mason raises the following claims in his pro se habeas petition, filed on June 14, 2002, and in his pro se reply memorandum in further support of his petition, filed on April 17, 2003:

(1) his sentence under the PFO statute was based on facts not found by a jury beyond a reasonable doubt, and was therefore in violation of his rights to due process and a jury trial; (2) the sentencing court's determination that he was a PFO violated his right to be free from cruel and unusual punishment under state and federal law; (3) the sentencing court's determination that he was a PFO violated his constitutional rights to equal protection of the laws; (4) the sentencing court's determination that he was a PFO was an improvident exercise of discretion; and (5) his sentence was excessive, and should be reduced in the interest of justice. (Petition at ¶13.)

Mason's petition was referred to Magistrate Judge Ellis. On March 18, 2011, Judge Ellis issued a detailed and thorough Report and Recommendation ("R&R"), familiarity with which is assumed. In the R&R, Judge Ellis rejected all five of Mason's arguments, and recommended that Mason's petition be DENIED. (See Dkt. Entry No. 25.)

On March 28, 2011, Mason, through his attorney at the Center for Appellate Litigation, timely filed objections to certain portions of Judge Ellis's R&R, pursuant to 28 U.S.C. § 636(b)(1)(C). (See March 28, 2011 Objection ("Objection").)

After considering Mason's objections, and reviewing the remainder of the R&R for clear error, this Court ADOPTS the R&R in its entirety.

II. Standard of Review

This 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); New York Dist. Council of Carpenters Pension Fund v. Perimeter Interiors, Inc., 657 F. Supp. 2d 410, 414 (S.D.N.Y. 2009).

"This Court reviews de novo those parts of the Report to which objections are made, and reviews the remainder for clear error on the face of the record." New York Dist. Council of Carpenters Pension Fund , 657 F. Supp. 2d at 414; see also Fed. R. Civ. P. 72 (b); 28 U.S.C. § 636(b)(1). "[W]hen a party makes only generalized or conclusory objections, or simply reiterates his original arguments, the Court reviews a magistrate judge's report and recommendation for clear error." Fabricio v. Artus, No. 06 Civ.2049, 2009 WL 928039, at *1 (S.D.N.Y. Mar. 12, 2009).

III. Analysis*fn2

Mason's objections to the R&R focus on only two of the five arguments made in his habeas petition: (1) that his sentence under the PFO statute was based on facts not found by a jury beyond a reasonable doubt, and was therefore in violation of his rights to due process and a jury trial; and (2) that the sentencing court's determination that he was a PFO violated his constitutional rights to equal protections under the law. (See Objection at 1-4.) ...


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