December 11, 2013
SUSAN M. COBAUGH, Petitioner,
SABINA KAPLAN, Superintendent, Bedford Hills Correctional Facility, Respondent.
SUSAN M. COBAUGH Plaintiff, Pro Se Bedford Hills Correctional Facility Bedford Hills, New York,
HON. ERIC T. SCHNEIDERMAN, PAUL B. LYONS, ESQ., Attorney General for the State of New York Assistant Attorney General, Counsel for Respondent, New York, New York.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
Susan M. Cobaugh ("Petitioner") filed a petition for a writ of habeas corpus ("the Petition") pursuant to 28 U.S.C. § 2254 on December 7, 2012. (Dkt. No. 1.) By Report-Recommendation dated August 28, 2013, the Honorable Andrew T. Baxter, United States Magistrate Judge, recommended that the Petition be denied and dismissed pursuant to 28 U.S.C. § 2253(c)(2), and that a certificate of appealability not issue. (Dkt. No. 18.) Petitioner has not filed an objection to the Report-Recommendation, and the time period in which to do so has expired. For the reasons set forth below, Magistrate Judge Baxter's Report-Recommendation is accepted and adopted in its entirety, and the Petition is denied and dismissed in its entirety.
I. RELEVANT BACKGROUND
For the sake of brevity, the Court will not repeat the factual and procedural background of Petitioner's 2005 conviction for murder in the second degree but will simply refer the parties to the relevant portions of Magistrate Judge Baxter's Report-Recommendation, which accurately recite that factual background. ( See generally Dkt. No. 18.)
A. Petitioner's Claims
In her Petition filed on December 7, 2012, Petitioner asserts the following four claims: (1) a claim that her guilty plea was fraudulently induced by the prosecutor; (2) a claim that her conviction was obtained through "judicial misconduct" because the trial court refused to appoint "capitally qualified" counsel; (3) a claim that trial counsel was ineffective; and (4) a claim that Petitioner has "new evidence" that she is actually innocent. (Dkt. No. 1, at 8-11.)
B. Magistrate Judge Baxter's Report-Recommendation
Generally, in his Report-Recommendation, Magistrate Judge Baxter recommends dismissal of the Petition due to Plaintiff's failure to file her petition within the one-year statute of limitations established by 22 U.S.C. § 2244. (Dkt. No. 18.) More specifically, Magistrate Judge Baxter determined as follows: (1) Petitioner filed her Petition more than two years after the limitations period began to run; (2) under the circumstances, Petitioner is not entitled to statutory or equitable tolling; and (3) Petitioner is not entitled to an exception under the Antiterrorism and Effective Death Penalty Act of 1996 because she cannot demonstrate "actual innocence." ( Id. at Part II.B.)
II. APPLICABLE LEGAL STANDARDS
A. Standard of Review
When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be "specific, " the objection must, with particularity, "identify  the portions of the proposed findings, recommendations, or report to which it has an objection and  the basis for the objection." N.D.N.Y.L.R. 72.1(c). When performing such a de novo review, "[t]he judge may... receive further evidence...." 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance. Similarly, a district court will ordinarily refuse to consider argument that could have been, but was not, presented to the magistrate judge in the first instance.
When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b)(2), (3); Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition. Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review. Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a "clear error" review, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id. 
After conducing the appropriate review, the 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).
B. Standard Governing Petitioner's Habeas Corpus Petition
Magistrate Judge Baxter has correctly recited the legal standard governing review of Petitioner's habeas corpus petition under the circumstances. (Dkt. No. 18, at Part II.A.) As a result, this standard is incorporated by reference in this Decision and Order, which is intended primarily for review of the parties.
After carefully reviewing all of the papers in this action, including Magistrate Judge Baxter's Report-Recommendation, the Court agrees with each of the recommendations made by Magistrate Judge Baxter. (Dkt. No. 18, at Part II.B.) Magistrate Judge Baxter employed the proper legal standards, accurately recited the facts, and correctly applied the law to those facts. ( Id. ) As a result, the Court accepts and adopts Magistrate Judge Baxter's Report-Recommendation in its entirety for the reasons stated therein. ( Id. )
ACCORDINGLY, it is
ORDERED that Magistrate Judge Baxter's Report-Recommendation (Dkt. No. 18) is ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Petitioner's Petition (Dkt. No. 1) is DENIED and DISMISSED; and it is further
ORDERED that a certificate of appealability not issue with respect to any of the claims set forth in the Petition, because Petitioner has not made a "substantial showing of the denial of a constitutional right" pursuant to 28 U.S.C. § 2253(c)(2).