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Brett Smith v. William F. Hulihan

October 17, 2012


The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge*fn1


In this petition for a writ habeas corpus, brought pursuant to 28 U.S.C. § 2254, petitioner Brett Smith challenges his 2006 conviction in Supreme Court, New York County, for criminal sale of a controlled substance. I referred the case to Magistrate Judge Andrew Peck, who issued a Report and Recommendation ("R&R") that recommends denial of the petition in its entirety. Smith v. Hulihan, No. 11 Civ. 2948, 2011 WL 4058764 (S.D.N.Y. Sept. 13, 2011). Through a series of submissions to the Court, see infra Part III, Smith has objected to the R&R. For the reasons set forth below, Magistrate Judge Peck's R&R is adopted in full and the petition is denied.


A district 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). After the parties are served with a copy of the magistrate judge's R&R, they may file objections with the court, and the court must then review de novo any part of the R&R that has been objected to. Id.; Fed. R. Civ. P. 72(b)(2)--(3). As to those portions that neither party objects to, the court may review for clear error.*fn2 See Gomez v. Brown, 655 F. Supp. 2d 332, 341 (S.D.N.Y. 2009); see also United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997) ("[F]ailure to object timely to a magistrate judge's report may operate as a waiver of any further judicial review of the decision . . . .").In addition, to the extent that the objections filed are overly general, conclusory, or simply reiterations of a party's prior arguments, the court may review corresponding portions of the R&R under the clearly erroneous standard. United States ex rel. Cas Redimix Concrete Corp. v. Luvin Constr. Corp., No. 00 Civ. 7552, 2002 WL 31886040, at *1 (S.D.N.Y. Dec. 27, 2002). Similarly, new arguments and factual assertions cannot properly be raised for the first time in objections to the R&R, and indeed may not be deemed objections at all. See Forman v. Artuz, 211 F. Supp. 2d 415, 418 n.8 (S.D.N.Y. 2000); see also Abu-Nassar v. Elders Futures, Inc., No. 88 Civ. 7906, 1994 WL 445638, at *4 n.2 (S.D.N.Y. Aug. 17, 1994) (dismissing new arguments not raised before the Magistrate Judge as "untimely" because entertaining them would "undermine the authority of the Magistrate Judge by allowing litigants the option of waiting until a Report is issued to advance additional arguments"). That said, when a litigant is proceeding pro se, his filings "must be construed liberally and interpreted 'to raise the strongest arguments that they suggest.'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474--75 (2d Cir. 2006) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)).


A. Facts

Brett Smith was arrested on the night of November 3, 2005, during an undercover "buyand-bust" operation conducted in Manhattan by the New York Police Department.*fn3 An undercover officer, identified as UC 6385, approached Smith on the street and requested two "dimes," or ten dollar bags of crack cocaine. Smith then asked another man, who was not apprehended, to give the officer a "twenty bag" and handed the man the officer's money. A few minutes later, NYPD officers arrested Smith. The drugs UC 6385 received during the operation were subsequently field-tested by him at his office and then confirmed to be cocaine in an NYPD laboratory test.

B. Procedural History

Smith was tried in Supreme Court, New York County, and was convicted of one count of third-degree criminal sale of a controlled substance. See N.Y. Penal Law § 220.39(1) (McKinney 2012). He was sentenced to five years in prison.

Following his conviction, Smith filed a pro se motion to vacate the judgment. See N.Y. Crim. Proc. Law § 440.10 (McKinney 2012). This petition raised three issues, all stemming from the assertion that UC 6385 did not certify the field test report made following Smith's arrest.*fn4

This motion was denied by Justice Carruthers, who explained that these claims were not "legally viable," and that this had already been explained to Smith at trial. Leave to appeal the denial of this motion was denied by the Supreme Court Appellate Division, First Department. The First Department subsequently affirmed Smith's conviction. People v. Smith, 859 N.Y.S.2d 75 (1st Dep't 2008). The Court of Appeals denied leave to appeal. 894 N.E.2d 664 (N.Y. 2008).

Smith filed a state habeas petition in Supreme Court, Sullivan County, and asserted that the state had violated the ninety-day speedy trial provision for misdemeanors. See N.Y. Crim. Proc. Law § 30.30(1)(b) (McKinney 2006). The court denied the petition on December 30, 2010, for lack of personal jurisdiction over the respondent. The Third Department denied Smith's request for an extension of time to appeal, and Smith has not directly appealed the state habeas decision.

On April 22, 2011, Smith filed a pro se federal habeas petition in this Court and alleged thirteen grounds for relief. On September 13, 2011, Magistrate Judge Peck recommended that ...

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