United States District Court, N.D. New York
February 25, 2014
MICHAEL FARANDA, Petitioner,
ADA PEREZ, Superintendent of Downstate Correctional Facility, Respondent.
THERESA M. SUOZZI, ESQ., OFFICE OF THERESA M. SUOZZI, Counsel for Petitioner, Saratoga Springs, New York.
HON. ERIC T. SCHNEIDERMAN, Attorney General for the State of New York, Counsel for Respondent,
LISA E. FLEISCHMANN, ESQ., Assistant Attorney General, New York, New York.
DECISION and ORDER
GLENN T. SUDDABY, District Judge.
Michael Faranda ("Petitioner") filed his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on December 7, 2012. (Dkt. No. 1.) By Report-Recommendation dated December 30, 2013, United States Magistrate Judge Christian F. Hummel 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. 11.) Petitioner has not filed an objection to the Report-Recommendation and the time in which to do so has expired. For the reasons set forth below, Magistrate Judge Hummel's Report-Recommendation is accepted and adopted in its entirety; the Petition is denied and dismissed in its entirety; and a certificate of appealability shall not issue.
I. RELEVANT BACKGROUND
A. Petitioner's Claims
For the sake of brevity, the Court will not repeat the factual background of Petitioner's 2009 conviction for burglary in the second degree, grand larceny in the second degree, criminal possession of stolen property in the second degree, two counts of felonious driving while intoxicated, aggravated unlicensed operation of a motor vehicle in the first degree, and forgery in the second degree but will simply refer the parties to the relevant portions of Magistrate Judge Hummel's Report-Recommendation, which accurately recite that factual background. (See generally Dkt. No. 11.)
In his Petition filed on June 1, 2012, Petitioner asserts the following three claims: (1) a claim that his guilty plea was not voluntarily and knowingly entered; (2) a claim that he received ineffective assistance of counsel; and (3) a claim that his sentence was unduly harsh and excessive. (Dkt. No. 1, at 6-30.)
B. Magistrate Judge Baxter's Report-Recommendation
On December 30, 2013, Magistrate Judge Hummel issued his Report-Recommendation. (Dkt. No. 11.) Generally, in his Report-Recommendation, Magistrate Judge Hummel recommends dismissal of the Petition for the following three reasons: (1) Petitioner has failed to establish that his plea was made involuntarily because record evidence shows that Petitioner disclosed to the Court that he understood the nature of the charges against him, was fully cognizant at the plea hearing, and acknowledged that his status as a prior felon could result in an enhanced sentence; (2) Petitioner has failed to establish that his counsel was ineffective or that he was otherwise prejudiced by his counsel's advice; and (3) although Petitioner received an enhanced sentence, the sentence was not outside the state court's statutory authority. ( Id. at Part V.B through Part V.D.)
II. APPLICABLE LEGAL STANDARDS
A. Standard Governing Review of a Report-Recommendation
When a specific objection is made to a portion of a magistrate judge's reportrecommendation, 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. See Zhao v. State Univ. of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) ("[I]t is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.") (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F.Supp.2d 311, 312-13 (W.D.N.Y. 2009) ("In this circuit, it is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.") (internal quotation marks omitted).
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; see also 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). 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 district court to conduct a second hearing whenever either party objected to the magistrate's credibility findings would largely frustrate the plain objective of Congress to alleviate the increasing congestion of litigation in the district courts."); Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition ("The term de novo' does not indicate that a secondary evidentiary hearing is required."). 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 Review of Petitioner's Habeas Petition
Magistrate Judge Hummel has recited the correct legal standard governing review of
Petitioner's habeas petition pursuant to 28 U.S.C. § 2254(d). (Dkt. No. 11, at Part V.A.) As a result, this standard is incorporated by reference in this Decision and Order, which is intended primarily for the review of the parties.
After carefully reviewing all of the papers in this action, including Magistrate Judge Hummel's Report-Recommendation, the Court agrees with each of the recommendations made by Magistrate Judge Hummel. Magistrate Judge Hummel employed the proper legal standards, accurately recited the facts, and correctly applied the law to those facts. (Dkt. No. 11, Parts I-IV.) As a result, the Court accepts and adopts Magistrate Judge Hummel's Report-Recommendation in its entirety for the reasons stated therein.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Hummel's Report-Recommendation (Dkt. No. 11) 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).