United States District Court, S.D. New York
REGINALD G. McFADDEN, Petitioner,
GEORGE PATAKI et al., Respondents.
ORDER ADOPTING R&R AND ADDRESSING PETITIONER'S OBJECTIONS THERETO
KENNETH M. KARAS, District Judge.
On March 5, 2013, this Court issued an Order adopting Magistrate Judge Davison's Report & Recommendation ("R&R") and denying Petitioner's request for habeas relief. ( See Dkt. No. 62 ("Order").) Petitioner apparently had submitted timely objections to the R&R, but, through no fault of Petitioner's, the Court failed to consider them in its Order. ( See id. ) The Court apologizes to Petitioner for this oversight. Petitioner, who had filed an appeal of the Order, (Dkt. No. 64), made the Court aware of its error and submitted a motion to reconsider pursuant to Federal Rule of Civil Procedure 60(b). (Dkt. No. 67.) The Court requested the case be remanded so that the March 5, 2013 Order and Judgment could be vacated and replaced with an order that fully addresses Petitioner's objections to the R&R. (Dkt. No. 68.) The Court of Appeals remanded the case as requested. (Dkt. No. 71.) The Court now vacates its prior Order, and, having reviewed Petitioner's Motion, his accompanying Memorandum containing Petitioner's objections to the R&R and additional supporting documents, the Record, and Magistrate Judge Davison's R&R, hereby denies Petitioner's request for habeas relief for the reasons described in the R&R and herein.
A. Factual Background
The Court assumes the Parties' familiarity with the factual and procedural history of the case, as described in Judge Davison's thorough R&R. ( See R&R (Dkt. No. 59).) In short, the evidence at trial established that Petitioner attacked a South Nyack woman, held her captive, and repeatedly raped her. Petitioner also forced the victim to accompany him to ATMs to withdraw money from her bank account. When Petitioner was arrested, more than two weeks later, he admitted to beating and raping the victim and taking her cash and jewelry. Forensic testing matched Petitioner's DNA with that collected in a rape kit performed on the victim.
On September 7, 1995, in New York State Supreme Court, Rockland County, Petitioner was convicted of three counts of rape in the first degree (New York Penal Law § 130.35(1)), one count of burglary in the first degree (New York Penal Law § 140.30(2)), one count of robbery in the first degree (New York Penal Law § 160.15(1)), one count of aggravated sexual abuse in the first degree (New York Penal Law § 130.70(1)(a)), one count of assault in the second degree (New York Penal Law § 120.05(1)), and one count of grand larceny in the fourth degree (New York Penal Law § 155.30(1)). Petitioner was sentenced to consecutive indeterminate terms of 12-and-one-half to 25 years in state prison on the three first-degree-rape counts, which terms run concurrently with an indeterminate term of two to four years on the fourth-degree-grand-larceny count and another concurrent term of three to six years on the second-degree-assault count. In total, his indeterminate sentence is to run from 37-and-one-half to 75 years. ( See Resp'ts' Ex. YY at 3.)
B. Procedural Background
Since his conviction, Petitioner has filed multiple state and federal court appeals and petitions. Magistrate Judge Davison's R&R contains a comprehensive catalogue of Petitioner's filings and the claims raised therein. (R&R 8-19.) Several of these filings are noteworthy for purposes of the Court's instant Order. Petitioner filed his first direct appeal in the Appellate Division of New York Supreme Court on April 28, 1998. (Resp'ts' Ex. L (Appellant's Brief).) The Appellate Division affirmed Petitioner's conviction and most aspects of his sentence, but remanded the case to the trial court for clarification of Petitioner's sentence, given that a kidnaping charge merged with other charges against Petitioner. People v. McFadden, 692 N.Y.S.2d 393 (App. Div. 1999). After the trial court clarified the terms of Petitioner's sentence, Petitioner filed a motion for an extension of time to file for leave to appeal with the Court of Appeals for New York State. (Resp'ts' Ex. V (Leave Application).) In this Application, filed August 12, 1999, Petitioner's counsel failed to specify the issues for which Petitioner was seeking appellate review. Id. The Court of Appeals granted Petitioner's application, but, when the court had not received any additional materials clarifying Petitioner's grounds for appeal by January 10, 2000, the court denied leave to appeal. People v. McFadden, 726 N.E.2d 491 (N.Y. 2000).
On November 4, 1999, Petitioner filed his first federal habeas petition, which was dismissed on exhaustion grounds. Petitioner filed the instant habeas petition and supporting documents on November 20, 2006, (Dkt. Nos. 1, 2, 58), to which Respondents responded on October 9, 2007 (Dkt. No. 10). Petitioner replied to Respondents' submission on December 7, 2007. (Dkt. No. 8.) Magistrate Judge Davison issued his R&R on April 6, 2011. (Dkt No. 59.) On March 5, 2013, the Court entered an Order adopting Magistrate Judge Davison's R&R, denying the Petition and entering judgment for Respondents. (Dkt. Nos. 62, 63.) Petitioner then appealed the judgment to the Court of Appeals for the Second Circuit, (Dkt. No. 64), and, shortly thereafter, the Court of Appeals received the Notice and docketed the appeal.
On April 3, 2013, Petitioner filed a Motion for Reconsideration under Federal Rule of Civil Procedure 60(b), requesting that the Court reconsider its judgment and attaching its previously submitted objections to the R&R. ( See Mot. for Reconsideration, Rule 60(b) FRCP (Dkt. No. 67).) Based on these submissions, the Court issued an Order explaining that it had not considered Petitioner's objections to the R&R and requesting that the Court of Appeals remand Petitioner's case so that the Court could vacate its March 5, 2013 Order and replace it with an order fully addressing Petitioner's objections to the R&R. (Dkt. No. 68.) On May 8, 2013, the Court of Appeals remanded the case for this purpose. (Dkt. No. 71.) Petitioner subsequently provided a supporting affidavit and an additional letter to the Court, in which he has expounded on his R&R objections. (Dkt. No. 73.)
A. Legal Standard
A district court reviewing a report and recommendation addressing a dispositive motion "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). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), a party may submit objections to the magistrate judge's report and recommendation. These objections must be "specific" and "written, " Fed.R.Civ.P. 72(b)(2), and must be made "[w]ithin 14 days after being served with a copy of the recommended disposition, " id.; see also 28 U.S.C. § 636(b)(1), plus an additional three days when service is made pursuant to Federal Rules of Civil Procedure 5(b)(2)(C)-(F), see Fed.R.Civ.P. 6(d), for a total of seventeen days, see Fed.R.Civ.P. 6(a)(2).
Where a party submits timely objections to a report and recommendation, the district court reviews de novo the parts of the report and recommendation to which the party objected. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). The district court "may adopt those portions of the... report [and recommendation] to which no specific written objection' is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law." Eisenberg v. New England Motor Freight, Inc., 564 F.Supp.2d 224, 226 (S.D.N.Y. 2008) (quoting Fed.R.Civ.P. 72(b)(2)).
1. Petitioner's Objections to the Report & ...