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Arthur Mercer v. Thomas K. Petro

June 28, 2011

ARTHUR MERCER, PLAINTIFF,
v.
THOMAS K. PETRO, ATTORNEY AT LAW, DEFENDANT.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently before the Court in this pro se civil rights action filed by Arthur Mercer ("Plaintiff") is United States Magistrate Judge David R. Homer's Report-Recommendation recommending that Plaintiff's Complaint be dismissed in its entirety for failure to state a claim upon which relief can be granted pursuant to 28 U.S.C. §§ 1915(e) and 1915A. (Dkt. No. 5.) For the reasons that follow, the Report-Recommendation is accepted and adopted, and Plaintiff's Complaint is dismissed in its entirety.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

On February 10, 2011, Plaintiff filed his Complaint. (Dkt. No. 1.) Generally, in his Complaint, Plaintiff claims that Thomas K. Petro ("Defendant") violated his rights under unspecified provisions of the United States Constitution by failing to properly represent him concerning an indictment against him in Ulster County between December 2010 and February 2011. (Dkt. No. 1, Attach. 6.) More specifically, Plaintiff alleges that Defendant failed to (1) challenge the legality of the indictment, (2) file pretrial motions, and (3) obtain summonses for witnesses. (Id.) Plaintiff further alleges that the charges against him should have been dismissed because "it is well beyond six months for a speedy trial and over 245 day[s] that is chargeable," and that Defendant's failure to file pretrial motions has resulted in his continued wrongful imprisonment. (Id.) For a more detailed recitation of Plaintiff's claims, and the factual allegations that support those claims, the Court refers the reader to the Complaint and Magistrate Judge Homer's Report-Recommendation. (Dkt. Nos. 1, 5.)

B. Magistrate Judge Homer's Report-Recommendation and Plaintiff's Objections to the Report-Recommendation

On March 1, 2011, Magistrate Judge Homer issued a Report-Recommendation recommending that Plaintiff's Complaint be dismissed for failure to state a claim upon which relief can be granted, pursuant to 28 U.S.C. §§ 1915(e) and 1915A. Magistrate Judge Homer further advised Plaintiff that, to the extent he has attempted to assert a claim of ineffective assistance of counsel, such a claim, which must be pursued in a petition for habeas corpus relief under 28 U.S.C. § 2254, is premature because a final judgment has not be entered. (Dkt. No. 5, generally.)

On April 20, 2011, after being granted an extension of time in which to do so, Plaintiff timely filed an Objection to the Report-Recommendation. (Dkt. No. 8.) In his Objection, Plaintiff repeats many of the allegations asserted in his Complaint, and argues that Magistrate Judge Homer erred in recommending the dismissal of his Complaint because Defendant's failure to properly represent him amounts to a violation of his right to effective assistance of counsel under the Sixth Amendment. (See generally id.)

II. STANDARD OF REVIEW

A. Standard of Review Governing a Report-Recommendation

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).*fn1

When only general objections are made to a magistrate judge's report-recommendation, or where the objecting party merely reiterates the same arguments made in its original papers submitted to the magistrate judge, the Court reviews the report-recommendation 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).*fn2

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 conducing the appropriate review, the Court may "accept, reject, or modify, in ...


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