United States District Court, N.D. New York
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); ...