The opinion of the court was delivered by: Richard J. Holwell, District Judge:
MEMORANDUM OPINION AND ORDER
Magistrate Judge Gabriel W. Gorenstein has issued a Report and Recommendation ("Report") recommending that the Court deny the petitions for writs of habeas corpus of L. Dennis Kozlowski and Mark H. Swartz ("petitioners") on the ground that petitioners' failure to raise a federal constitutional argument in the state trial court constituted an adequate and independent state law ground for barring federal habeas review. Petitioners object to the Report's recommendation. After hearing oral argument on petitioners' objections, the Court adopts the Report's well-reasoned findings in their entirety and affirms that New York's contemporaneous objection rule is an adequate and independent state law ground barring federal habeas review in this case. Both petitions for writs of habeas corpus are denied.
The Court assumes familiarity with the background and procedural history as set forth in Judge Gorenstein's Report and briefly recounts here the facts relevant to the present petitions. Kozlowski and Swartz were, respectively, the Chief Executive Officer anad Chief Financial Officer of Tyco International, Ltd. ("Tyco"). In April 2002, Tyco retained third party law firm Boies, Schiller & Flexner LLP ("Boies Schiller") to conduct an internal investigation of Tyco's payment of $20 million to Frank Walsh, a former Tyco director. In June 2002, the scope of this internal investigation expanded to include all financial transactions between Tyco and its top managers and directors.*fn1 (Amended Memorandum of Law in Support of Petition for Writ of Habeas Corpus on Behalf of L. Dennis Kozlowski ("Pet. Mem.") at 10.) In September 2002, both petitioners were indicted for several counts of first-degree grand larceny, falsification of business records, securities fraud, and conspiracy. (Memorandum of Law in Support of Answer Opposing Petition for a Writ of Habeas Corpus ("Resp. Mem.") at 3.)
After the petitioners' first trial resulted in a mistrial and prior to the commencement of the second trial, Swartz issued a subpoena to Boies Schiller for, among other materials, notes and memoranda from certain interviews of Tyco directors that Boies Schiller conducted in June and August 2002 during Tyco's internal investigation. These documents were not provided to the prosecution or the defense, but the subjects of the interviews were disclosed to petitioners when Tyco produced privilege logs in related civil litigation. (Pet. Mem. at 10-11, 16 & n.9.) Petitioner Swartz subpoenaed the statements as likely impeachment evidence against interviewed directors who served as prosecution's witnesses at trial ("director-witnesses") on the theory that they did not really believe that Swartz had engaged in any wrongful conduct and only "changed their tune" after the prosecution obtained an indictment. (Defendants' Memorandum of Law in Opposition to the Motion to Quash the Subpoena Duces Tecum Served on Boies, Schiller & Flexner LLP ("Pet. Opp. Mot. Quash") at 6, reproduced in Petitioner's Appendix to Memorandum of Law in Support of Petition for Writ of Habeas Corpus on Behalf of L. Dennis Kozlowski ("Pet. App.") at 243.) Petitioners supported this theory by pointing to the fact that after Tyco's directors presumably became aware of petitioners' questionable conduct during the Boies Schiller investigation, they nonetheless allowed petitioner Swartz to exercise substantial authority as Tyco's CFO until the day he was indicted and voted to pay him $50 million in severance after the last of the relevant director interviews. People v. Kozlowski, 898 N.E.2d 891, 903 (2008); (Pet. Mem. at 12-13.)
Tyco opposed the subpoena and argued that the subpoenaed documents were attorney-client communications, attorney work product, and trial preparation materials that were immune from disclosure under CPLR 3101(b), (c), and (d). Petitioners conceded that there was "little dispute" that the requested materials were work product or attorney-client privileged, ordinarily subject to absolute protection under subsections (b) and (c), but argued that Tyco had waived these privileges. People v. Kozlowski, 11 N.Y.3d at 10-11. They also argued that to the extent that the materials were considered trial preparation materials under subsection (d), this conditional privilege gave way to their "substantive need" for the materials because they could not obtain the "substantial equivalent" of the evidence without "undue hardship." Id. at 26-27; (Pet. App. at 195.) The trial court found that Tyco had not waived any work product or attorney-client privileges. As for the conditional privilege for trial preparation materials, the court concluded both that the subpoena was a "fishing expedition" and, further, that petitioner had not shown why the defense could not have conducted its own interviews of the director witnesses. Accordingly, the trial court granted Boies Schiller's motion to quash the subpoena. (See Order of the Honorable Michael J. Obus (Jan. 14, 2005), Pet. App. at 191-96.)
Petitioners were subsequently convicted and the Appellate Division affirmed the convictions. See People v. Kozlowski, 47 A.D.3d 111, 120-21 (1st Dep't 2007). With respect to the subpoena issue, the Appellate Division concluded that the interviews were not material and any error was harmless. Id.
On appeal to New York's highest court, petitioners argued that the trial court's quashing of the subpoena was erroneous because (1) the documents they sought met the "material and likely exculpatory" standard set by People v. Gissendanner,*fn2 (2) petitioners had shown a "substantial need" for the documents under CPLR 3101(d)(2), (3) Tyco had waived any work-product privilege, and (4) the error was not harmless. (Brief for Defendant-Appellant Mark H. Swartz (Apr. 29, 2008) at 33-60, partially reproduced in Pet. App. at 316-28.) The New York Court of Appeals found that petitioners satisfied the Gissendanner materiality standard in subpoenaing "specific director-witness statements" that were "reasonably likely to contain material that could contradict the statements of key witnesses for the People." People v. Kozlowski, 898 N.E.2d at 903. However, the Court of Appeals also concluded that the trial court did not abuse its discretion in finding that the petitioners made no effort to show-as required by CPLR 3101(d)(2)-any "undue hardship" in securing the "substantial equivalent" of the subpoenaed documents on their own, as is required by CPLR 3101(d)(2). Id.
The Court of Appeals did not rely on any federal constitutional principles, pointing out that petitioners had defaulted on any federal constitutional claim they may have had by not raising it before the trial court. Although aware of the need to "give due regard to the accused's right to a fair trial" in its application of the Gissendanner standard, the court qualified that statement with an immediately following footnote: "As the People point out, defendants did not raise a constitutional argument in support of their subpoena below, and we therefore address none." Id. at 903 n.11. As Judge Gorenstein concluded in the Report, the wording of this footnote is a clear invocation of New York Criminal Procedure Law ("N.Y. Crim. Proc. Law") § 470.05(2), New York's contemporaneous objection rule*fn3 that requires a specific and timely objection at trial to preserve an issue on appeal. (Report at 13.)
Kozlowski and Swartz now bring petitions for federal habeas relief *fn4 on the grounds that their federal constitutional rights to present a defense under the Sixth and Fourteenth Amendments were violated by the trial court's quashing of the subpoena, which sought pretrial statements made by director witnesses that were potentially exculpatory. (Kozlowski's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("Kozlowski Pet.") ¶ 12; Swartz's Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody ("Swartz Pet.") ¶ 12.) On January 6, 2011, Magistrate Judge Gorenstein issued the Report recommending the denial of both petitions, reasoning that the New York Court of Appeals' refusal to address petitioners' federal constitutional claims based on their failure to raise the claim at trial was an adequate and independent state ground barring federal habeas review. On December 22, 2011, this Court heard oral argument on petitioners' objections to the Report.
Since a habeas petitioner must show that his custody is "in violation of the Constitution or laws or treaties of the United States," 28 U.S.C. § 2254(a), "federal habeas corpus relief does not lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780 (1990). A federal court "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991) (emphasis added). This doctrine applies to federal habeas review barred by a state court decision resting on a state procedural bar, as long as the state procedural bar is independent of the merits of the federal question and adequate to support the judgment. "If it is, a federal court may not review the judgment unless the habeas petitioner shows both cause and prejudice [for the procedural default] or a fundamental miscarriage of justice." Jimenez v. Walker, 458 F.3d 130, 138 (2d Cir. 2006) (citations omitted).
When reviewing a magistrate judge's report and recommendation, a district court may adopt portions of the report if they are not clearly erroneous and not opposed by specific, written objections. Bandhan v. Laboratory Corp. of America, 234 F. Supp. 2d 313, 316 (S.D.N.Y. 2002) (citations omitted). Where a party makes a specific written objection within ten days*fn5 after being served with a copy of the magistrate judge's recommended disposition, however, the district court is required to make a de novo determination regarding those parts of the report. Id. (internal quotations and citations omitted). "A district judge may accept, reject, or modify, in whole or in part, the findings and recommendations of the Magistrate." Id. "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.'" Walker v. Vaughan, 216 F. Supp. 2d 290, 292 (S.D.N.Y. 2002) (quoting Barratt v. Joie, No. 96 Civ. 0324, 2002 WL 335014, at *1 (S.D.N.Y. Mar. 4, 2002)). Petitioners make two specific objections to the Report: (1) New York's procedural default rule is not an adequate ground for ...